| High court ruling not last word says WCL scholar BY MATT GETTY Though the Supreme Court’s recent decision upholding Oregon’s Death with Dignity law looks like a key victory for assisted suicide, according to a visiting WCL professor who helped shape the state’s argument, it may actually have set the stage for a much more complicated debate. “It would be very different if Congress actually passed a law that said you couldn’t [participate in assisted suicide],” said Garrett Epps, the University of Oregon professor who provided the original research for Oregon’s argument. “In that case the only argument you could make would be that Congress somehow didn’t have the power to do that. That argument is a difficult one, and it has gotten more difficult.” Ironically, the possibility of a congressional law banning assisted suicide was exactly what got Epps involved with the case. In 2000, when the U.S. Senate considered the Pain Relief Promotion Act, which would have used the federal government’s authority over interstate commerce to outlaw assisted suicide nationally, Oregon state officials asked Epps to craft an argument that would protect the state’s 1994 law. Epps completed the research, but the expected fight didn’t come. Senator Ron Wyden (D-Ore.) threatened to filibuster the act, and the bill died when the Senate failed to vote on it before adjourning in fall 2000. “So I did the research; they put it in a file; the bill didn’t pass, and that was pretty much it,” Epps recalled. A year later, in 2001, then attorney general John Ashcroft threatened to use a 30-year old law crafted to fight illegal drug abuse to prosecute Oregon doctors who prescribed drugs that could be used for assisted suicide. Oregon immediately sued to block the federal interference, using Epps’s research as the basis for their grievance. “They kind of restyled the memo into the complaint, so without knowing it I became part of the lawsuit,” said Epps. After a four-year legal fight, the nation’s highest court agreed to hear the case last February, and suddenly Epps was caught up in what many see as a history-making Supreme Court case. Though Oregon now employed several litigation teams to work on the issue, Epps was once again asked to consult. “Before the oral argument [which began in October 2005] I worked with a number of other scholars and lawyers to help them prepare,” he said. “We impersonated the justices; the state presented their arguments, and we sort of tried to tear them apart.” Two weeks ago, when the legal team Epps helped prepare won a Supreme Court ruling effectively upholding assisted suicide in the only U.S. state that allows it, pundits saw an open door for other states to pass similar laws. But Epps isn’t so sure. “I got a lot of calls from reporters on the day of the ruling asking, ‘Do you think other states will do this?’ and I just have no clue,” he said. “The truth is it wasn’t primarily opposition from the federal government that was keeping other states from doing this. There’s a lot of serious policy questions about whether this is how we want to do things.” Even when it comes to the issue of constitutionality, Epps sees a lot of history still to be made on assisted suicide. The question of whether the federal government has the constitutional right to repeal a state’s assisted suicide law through legislation, he stressed, is still wide open. “I [wrote] the original memo in terms of constitutionality, but as it turns out constitutionality really wasn’t the issue with this case,” he explained. “The whole case ended up being about whether the attorney general has this authority by law . . . The [Supreme] Court didn’t have to make any constitutional ruling; it just read the statute and said, ‘no.’” If Congress were to pass a law similar to the Pain Relief Promotion Act of 2000, which Epps sees as a potential next step, the debate would get even more complicated than it was five years ago. In the wake of last year’s Supreme Court ruling in Gonzales v. Raich, which held that California doctors could be federally prosecuted for providing medical marijuana, Epps explained, Oregon’s Death With Dignity law stands on increasingly shaky constitutional ground. “If it had come down to a constitutional issue, we would have had a much tougher argument,” he said. “Congress has the power to regulate commerce among the several states, and the question then becomes: is the end use of a controlled substance by a dying person commerce? Essentially, it’s commerce when he buys it, but the court had hinted in the early ’90s that there were some limits to the commerce power, and that maybe one would be a temporal limit. Maybe it would stop being commerce when it passed into private hands. But Gonzales v. Raich made that a much harder argument.” Garrett Epps is currently a visiting professor teaching constitutional law at WCL. |
