Ruling: Federal panel rejects challenge to Oregon measure that allows doctors to help patients.

By HENRY WEINSTEIN, Times Legal Affairs Writer

     A federal appeals court in San Francisco on Thursday rejected a lawsuit challenging Oregon's first-in-the-nation law permitting physician-assisted suicide for mentally competent, terminally ill patients.
      The 3-0 ruling by the U.S. 9th Circuit Court of Appeals said that the suit must be dismissed because the individuals and organizations challenging the law could not demonstrate that they face an imminent threat of harm.
      Oregon's law was enacted by a margin of 52%-48% in 1994 in a hotly contested ballot initiative. Before the law could go into effect, it was challenged by a group of terminally ill patients who said they feared being cajoled into taking their own lives against their wills and by doctors and hospitals objecting to participation in assisted suicide.
     In 1995, U.S. District Judge Michael Hogan in Eugene issued an injunction preventing the statute from going into effect. Subsequently, he declared the law unconstitutional, saying that it lacked adequate procedural safeguards for terminally ill individuals who are mentally incompetent.
     But on Thursday, the appeals court unanimously reversed Hogan's decision and ordered him to dismiss the lawsuit challenging the law.
     The statute allows Oregon residents to ask for suicide medication if their doctors determine that they have less than six months to live.
     A second physician must determine that the patient is mentally competent and not suffering from depression. The patient must make a written request for the medication, signed by two witnesses, 48 hours before the doctor delivers the prescription, and repeat the request orally before the prescription is written.
     The appeals court said that there was no immediate prospect that the one surviving patient in the case, Janice Elsner, might end her life against her wishes because of some flaw in the Oregon statute.
     Elsner suffers from a progressive form of muscular dystrophy "and has already lived longer than doctors expected," according to the opinion by Judge Melvin Brunetti of Reno, Nev. The judge said that Elsner has had clinical depression that resulted in ambivalence about whether she wanted to continue living.
     Consequently, Elsner asserted that there was a possibility that "she will take her own life against her true intent."
     But in order for that to occur, the court said, there would have to be a lengthy chain of seven events, including Elsner's becoming clinically depressed to the point of being unable to make an informed decision to take her own life, or being unduly influenced by a third party to take her own life.
     Additionally, the judges said that Elsner's attending and consulting doctors, neither of whom is required under the law to be a psychiatrist or psychologist, would both have to misdiagnose her as being capable of making an informed decision.
     The appeals court described the prospective list of events as a "chain of speculative contingencies." The judges then said that on the record before them, the facts are insufficient to permit Elsner to have standing to challenge the law.
     "First, as matter of quantitative probability, the 'facts' only indicate that terminally ill adults are at a greater risk of depression than those who are not terminally ill, and do not demonstrate that a significant number of terminally ill adults have depression severe enough to prevent them from making an informed decision," Brunetti wrote.
     "More importantly . . . our analysis on this issue cannot be reduced to considering probability merely in terms of quantitative percentages, but must instead focus qualitatively on whether the plaintiff has made an individualized decision showing that there is a very significant possibility that the future harm will ensue," Brunetti added.
     His decision was joined by Judges Alfred Goodwin of Pasadena and Samuel P. King of Honolulu.
     In summary, the appeals court said it was premature to decide whether enforcement of the law would violate anyone's rights. The court also declined to discuss the possible effect of a pending U.S. Supreme Court ruling on whether terminally ill patients have a constitutional right to physician-assisted suicide.
     Thursday's ruling is particularly significant because it is possible that Oregon's law could go into effect even if the U.S. Supreme Court overturns a 1996 9th Circuit decision saying that mentally competent, terminally ill adults have a constitutional due process right to the assistance of a physician in hastening their death.
     That 1996 appellate ruling overturned a Washington statute banning doctor-assisted suicide. The individuals challenging that ruling contend that such decisions should be left to the states, not to judges. The high court could rule that there is no due process right to physician-assisted suicide, but depending on how the Supreme Court decision is written, it would not necessarily block Oregon's law from going into effect.
     Lawyers for the challengers said that they will seek a stay of Thursday's decision pending further appeals.
     Attorney Richard Coleson of Terre Haute, Ind., said he was very disappointed with Thursday's ruling and the court's decision not to rule on the merits of the Oregon law. "They didn't say anything about whether the safeguards are adequate," Coleson said.
     Moreover, Coleson asserted that the way the decision was framed meant that it would be impossible for any living person to challenge the statute. Coleson and his law partner, James Bopp, contend that the Oregon law denies terminally ill people equal protection of the law in Oregon because the state has other statutes that permit intervention to prevent suicide. Coleson said he hoped that the Supreme Court's ruling on physician-assisted suicide, expected in June or July, will clarify this point.
     Tim Shuck, a 48-year-old Portland resident with AIDS, said he was pleased about the decision. Shuck is one of several Oregon residents who intervened in the case in support of the law, represented by the American Civil Liberties Union.
     "This decision is welcome, but it came too late for the other intervenors; two of them have died since the case was filed," he said. "I've always thought I should have this right if the time comes.'
     He added that his condition has improved considerably during the past year as a result of new medication and that he currently is not at the "end stage" of his disease.
     A group of Oregon legislators has introduced a statute that seeks to repeal the Oregon law, known as Measure 16. If the repeal bill--which is strongly supported by the Oregon Right to Life organization and the state's Catholic Conference--passes, it would not only abolish the statute, it would create a state agency called the Office for Compassionate Care that would offer alternatives to those nearing the end of life, such as referrals to hospice care or pain management clinics.