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Ashcroft: Priest or Lawyer

12/10/01 12:00AM By Cheryl Hanna

This past summer, my 93 year old grandmother fell into a coma and needed a tube to breathe. Her doctor informed us that it was not likely she could breath on her own. If she did, her quality of life, what little she had left, would be significantly impaired.

We decided to remove her breathing tube, and let nature takes its course.

Before he removed the breathing tube, my grandmother's doctor gave her a shot of morphine to ease her pain. It probably hastened her death as well.

My family held hands. We said the Lord's prayer. Within just a few minutes, my grandmother passed away with dignity, and in peace.

As painful as the decision was, my family believes her doctor did the right thing.

Attorney General John Ashcroft does not.

He recently issued an order that directs the drug enforcement administration to target the prescription licenses of doctors who prescribe lethal drugs for terminally ill patients. Ashcroft intended to reverse an Oregon law that legalizes and regulates physician-assisted suicide, but Ashcroft's order reaches far beyond Oregon. Any doctor who uses federally regulated drugs, like morphine, might be punished if those drugs hasten death, as opposed to alleviating pain. Ashcroft is confident the DEA can discern the difference, even if most doctors can't.

A federal court has issued an injunction against the order and will soon hear the case.

Ashcroft believes he has legal precedent. He cites last year's Supreme Court decision that held even though California voters had decided that the medical use of marijuana should be legalized, federal law trumps.

Opponents point out that Ashcroft's decision has nothing to do with the medical marijuana case and everything to do with his fundamentalist religious beliefs.

Ashcroft is a devout Christian. He has stated on many occasions that he believes physician-assisted suicide is immoral. He insists that how and when someone dies should be left in God's hands.

Presumably he would argue that the death penalty is an exception.

What is most troubling about Ashcroft's order is that it once again raises the profound debate about the separation of church and state.

As Attorney General, Ashcroft is sworn to uphold the law and the principles that are the foundation of our democracy. Our constitution separates church and state because it ensures that people are not forced to adhere to the particular moral beliefs of our leaders. For democracy to survive, our laws must be as inclusive of different moral viewpoints as possible. Law enforcement should never become the religious police.

Witness the Taliban.

In Oregon, people have chosen to leave death a private matter, with a host of checks and balances to ensure that doctors behave ethically. Outside of Oregon, hospital committees advise patients and their families on the process of dying, and state regulatory boards monitor medical professionals.

To what extent doctors should help the terminally ill die does indeed raise some very hard and often troubling medical and moral questions. But those questions are best answered by patients, their families, and health professionals, not Mr. Ashcroft.

Ashcroft's directive infringes upon the rights of states to regulate the medical profession, and upon the rights of patients to make their own private, medical decisions. Reason enough for the court to permanently strike it down. But the most important reason to do so is that Mr. Ashcroft is blurring the line between clergy and lawyer, religion and the law.

Once we let the government take away our freedoms, it becomes much harder to get them back.

This is Cheryl Hanna.

--Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.
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