X-Message-Number: 8852
Date: Wed, 26 Nov 1997 11:42:36 -0700
From: David Brandt-Erichsen <>
Subject: Oregon update -- more on Hogan

This article on Judge Hogan is a bit clearer and more detailed than the
previous AP report.

From The Oregonian
November 26, 1997 

Judge gives suicide foes another try at suit

As ordered by a federal court, the suit against Measure 16 is dismissed,
but a new hearing on the law is scheduled

By Ashbel S. Green and Erin Hoover of The Oregonian

EUGENE -- U.S. District Judge Michael R. Hogan on Tuesday left the door
open a crack for opponents of physician-assisted suicide to attempt to
resurrect their 3-year-old lawsuit.  But there's no question Oregon's
physician-assisted suicide law remains in effect.
                        
On Tuesday, Hogan dismissed the lawsuit, as ordered by the U.S. 9th Circuit
Court of Appeals. Nevertheless, he scheduled a hearing in February,
granting a motion to allow the plaintiffs to make another stab at obtaining
standing to sue.
                        
Physician-assisted suicide supporters attacked Hogan for not completely
disposing of the case. "This 'patient' is brain-dead, but the respirator
still needs to be turned off," said Barbara Coombs Lee, co-author of a 1994
ballot measure that legalized physician-assisted suicide in Oregon. "My
interpretation is that (Hogan) just couldn't bear to let the case go."
                        
In 1995, Hogan ruled that the Death With Dignity Act -- Measure 16, as it
appeared on the 1994 ballot -- was unconstitutional because it "withholds from
terminally ill citizens the same protections from suicide the majority
enjoys" under the equal protection clause of the 14th Amendment.
Consequently, it offers "little assurance that only competent terminally
ill persons will
voluntarily die," he declared.
                        
The 9th Circuit overturned Hogan earlier this year, saying the plaintiffs
had no standing to challenge the law. The plaintiffs, a woman with muscular
dystrophy and her two doctors, did not have standing because they were not
ersonally harmed by the assisted-suicide law, the panel ruled.
                        
In October, the U.S. Supreme Court declined to accept an appeal of a
decision by the 9th Circuit, which ordered Hogan to dismiss the case. On
Nov. 4, Oregon voters resoundingly rejected Measure 51, which would have
repealed Measure 16.
                        
On Tuesday, at the same time Hogan dismissed the lawsuit, he allowed the
plaintiffs' lawyer to make another argument about standing.
                        
James Bopp Jr., an attorney for National Right to Life who represents the
plaintiffs, said his client has standing to sue because the Death With
Dignity Act stigmatizes her as a terminally ill person whose life is worth
less than others because she can legally kill herself. Bopp, who lives in
Indiana, participated in Tuesday's hearing by telephone.  Bopp said the 9th
Circuit failed to address this argument, so Hogan should.
                        
The defendants see it differently. They say Bopp already made the
"stigmatic injury" argument and the courts rejected t; and if Bopp hadn't
already raised the issue, he missed his chance.
                        
On Tuesday, Hogan said he thought it was important to consider Bopp's
argument. Defendants can make their arguments in court briefs due before a
hearing he scheduled Feb. 17 -- ''so that there can be a thoughtful and
considered evaluation of the claim as it deserves."
                        
Bopp got what he wanted from Hogan: a chance to resurrect his lawsuit by
making a slightly different argument.  

The 9th Circuit rejected his previous argument that his client had standing
because, if she became depressed in the future, she might might use the
assisted-suicide law to kill herself against her true wishes. Now he's saying
his client has standing because the law actually actually-- as opposed to
might might-- stigmatizes her as a terminally ill person.
                        
"She is suffering a present injury of being stigmatized by the
discriminatory treatment she is receiving under Measure 16," Bopp said.
"Oregon has numerous laws that make it a crime to assist in a suicide. She
is exempted from those laws and deemed by Measure 16 as not being worthy of
being protected from her own suicide."
                        
Bopp's ultimate goal is to have the assisted suicide law declared
unconstitutional. He sees Hogan's court as his possible vehicle.  "My hope
is that we will meet that requirement (for standing) so that the case can
be decided on the constitutional merits," said Bopp. "After all, we're
talking about people killing themselves."
                        
But Bopp is a long way from success. Even if Hogan agrees that Bopp's
client has standing, Bopp's opponents -- those who favor assisted suicide
-- said they likely would appeal that decision again to the 9th Circuit Court.
                        
If Bopp does succeed in establishing standing for his client -- which many
legal experts doubt will happen -- he must ultimately get a ruling that
Oregon's assisted-suicide law is unconstitutional. Because of the appeals
process, that ruling likely would have to come from the U.S. Supreme Court.
                        
Getting this case to the Supreme Court is technically possible. The Supreme
Court ruled in June that people do not have a constitutional right to
assisted suicide. The court did not, however, say that assisted suicide is
unconstitutional. But getting to the point at which the Supreme Court might
rule on Oregon's law could take years.
                        
Stephen K. Bushong, an assistant Oregon attorney general, does not think
that Hogan's action Tuesday will allow a resurrection of the case. Rather,
he said, Hogan "was not ready to decide the issue today."  Measure 16
doesn't stigmatize anybody, Bushong said. "Measure 16 gives terminally ill
adults an option. It's purely optional."
                        
Arthur LaFrance, a professor at Northwestern School of Law at Lewis & Clark
College, said Hogan's decision to hear the new procedural argument was a
responsible one.

"If Hogan had reinstated an injunction today, that would be cause for
alarm," LaFrance said. "I think what Hogan's done is responsible. I think
what Bopp is doing is what a good advocate should do."

"We (in Oregon) are alone in the world in taking this debate public and
developing legislation to resolve and give guidance," LaFrance said. "If
we're going to do that, then it's worth taking some time to hammer out all
the issues."
                        
But LaFrance called Bopp's legal strategy a "reach" and said he is
confident that the Oregon assisted-suicide law will survive legal
challenges. He said that within about six months, he expects that someone
will go through with an assisted suicide and the mechanics of the process
will start to become clearer.
                       
Eli Stutsman, a lawyer for Oregon Right to Die, said Hogan's action Tuesday
met the letter of the 9th Circuit's order to dismiss the case but not the
spirit.
                        
Stutsman said he could not imagine Hogan's granting standing on the basis
of stigmatic injury, given the fact that the courts rejected it.  "That
would be so extraordinary," he said.  It also would force him to appeal to
the 9th
Circuit, he said. "At some point, we expect this litigation to be
concluded," Stutsman said.

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