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Court Strikes Down Ashcroft Directive on Assisted Suicide

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MAY 31, 2004 VOLUME 11, NUMBER 48

In 1994 and again in 1997, Oregon voters approved the first law permitting physician-assisted suicide in the U.S. In each of the six years since the law was implemented, about 30 terminally ill Oregon residents have used the “Death With Dignity” Act to end their lives with the help of physicians. It is not easy to comply with the Act’s terms; it is available only to long-time Oregon residents who are terminally ill, and it requires psychological assessment of the patient and consistent requests over time. It also requires a sympathetic and cooperative physician to prescribe medication and a pharmacist to dispense the lethal dosage of drugs.

U.S. Attorney General John Ashcroft has made clear his disapproval of the Oregon law. In November, 2001, Mr. Ashcroft issued a Directive to officers of the federal Drug Enforcement Administration. The Directive insists that physician-assisted suicide serves no legitimate medical purpose, and instructs the DEA to prosecute any physician who prescribes a lethal dose of narcotics or other “controlled substances.” It also directs prosecution of any pharmacist filling such a prescription, and effectively threatens both physicians and pharmacists with loss of professional licenses if they utilize the Oregon law.

A physician, a pharmacist, several terminally ill patients, and the State of Oregon brought suit in Oregon Federal Court to have Mr. Ashcroft’s Directive rendered invalid. They argued that Mr. Ashcroft had no business interfering in the doctor/patient relationship, and no authority to impose his views of proper medical care on state governments.

Judge Robert E. Jones of the Federal District Court in Oregon agreed, and permanently enjoined the Attorney General from enforcing his own Directive. Mr. Ashcroft appealed that ruling.

The Ninth Circuit Court of Appeals affirmed Judge Jones’ ruling. The appellate court noted that the Controlled Substances Act, on which Mr. Ashcroft had relied for his Directive, was intended to combat drug abuse, not to regulate medical care. That job should be left to the states, according to the ruling, and until Congress acts the Attorney General is powerless to enforce his Directive. Besides, as the appellate court pointed out, Mr. Ashcroft is a lawyer, not a physician, and he and his office are poorly qualified to make medical decisions. Any role the administration is to have in medical decisions should be voiced by the Department of Health and Human Services, not the Attorney General.

One other problem with the Directive, said the two judges in the majority, is that it does exactly what Mr. Ashcroft intended it to do. Because of the fear of prosecution or loss of license, the Directive would have a chilling effect on physicians, pharmacists and other health care providers, as they might not dare risk their livelihood and freedom to provide patient care in a manner approved by Oregon voters. State of Oregon v. Ashcroft, May 26, 2004.

One of the three appellate judges hearing the case dissented, and would have approved the Directive. It is likely that the Supreme Court will be asked to resolve the dispute over Mr. Aschroft’s Directive.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

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Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour

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Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.