c. 2005 Religion News Service

(UNDATED) The first big case Chief Justice John Roberts and a reshaped U.S. Supreme Court take on this week comes with profound moral and religious questions: doctor-assisted suicide.

Political and legal attacks on assisted suicide have raged almost continuously since Oregon voters first approved the Death With Dignity Act in 1994.

The nation will be eager to see, beginning Wednesday (Oct. 5), how a largely unknown Roberts will help the court resolve a classic clash between the federal government and a state experiment in social policy.

“Now we’re going to find out who the real John Roberts is,” says Glenn C. Smith, a professor at California Western School of Law in San Diego.

The court also will get a new justice to replace retiring Sandra Day O’Connor, but it is unclear whether that will happen before the Oregon case is decided, likely by early next year. The ruling may indicate which way Roberts wants to take the court, but the court’s true course won’t be known until the new member begins participating in decisions.

The Oregon case is framed narrowly: Did former U.S. Attorney General John Ashcroft exceed his authority under the federal Controlled Substances Act in 2001 when he announced plans to punish doctors who prescribed drugs using Oregon’s law?

But the ruling may be influenced by broader issues _ states’ rights, the right to die and the war on drugs _ says Richard Saphire, a professor of constitutional law at the University of Dayton School of Law in Ohio.

“In cases where there are plausible positions on each side,” Saphire says, “ … inevitably a judge’s own political morality will have some effect.”

Two sets of lower courts have backed Oregon’s contention that Ashcroft overstepped his authority when he sought to interfere with the Death With Dignity Act by going after participating doctors.

U.S. District Judge Robert E. Jones, based in Portland, Ore., blocked Ashcroft in 2002. A divided panel of the 9th U.S. Circuit Court of Appeals affirmed Jones in 2004.

Earlier this year, the Supreme Court agreed to review the case at the urging of Ashcroft’s successor, Alberto Gonzales.

The court’s decision will shape the ongoing political battle over Oregon’s assisted suicide law, the only one in the country. Since voters approved the law in 1994, some state and federal lawmakers have attempted to overturn it, and opponents, with backing from the Roman Catholic Church and the Church of Jesus Christ of Latter-day Saints, have tried unsuccessfully to persuade voters to repeal it. While election law prohibits churches from endorsing candidates, they can take stands on political issues.

In Wednesday’s oral arguments before the court, the U.S. solicitor general and an Oregon Justice Department attorney will address two arcane areas of administrative law: the meaning of a statute and deference to the federal government.

Federal lawyers agree that the Controlled Substances Act doesn’t specifically address assisted suicide. But they say the court should defer to the attorney general’s interpretation that prescribing lethal doses is not a legitimate medical practice.

By contrast, assisted suicide supporters say the federal government cannot draw such an interpretation from a statute that was designed to combat illegal drug diversion and trafficking.

Roberts, a conservative confirmed by the Senate last week as the late William Rehnquist’s replacement, built his reputation as a legal craftsman who sticks to the specifics of cases rather than promoting an ideological agenda.

But Roberts’ ideology may come into play if the decision in the Oregon case comes down to a broad issue such as states’ rights.

Earlier this year, for example, three of the most conservative justices backed California’s medical marijuana law by saying it was a states’ rights issue. The more liberal members opposed the law in favor of federal authority.

Given Roberts’ effort to paint himself as a moderate during his Senate confirmation hearings, many expect the new chief justice to avoid staking out a strong ideological position, says Jonathan L. Entin, a professor at the Case Western Reserve University School of Law in Cleveland.

“He doesn’t strike me as likely _ in this first term, first time out of the box,” Entin says, “to come in and try and make a really high-profile mark with a grand theory.”

MO RB END GREEN

(Ashbel “Tony” Green is a staff writer for The Oregonian of Portland, Ore.)