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September 2004

It seems that Elder Law changes almost weekly. We will try to highlight some of the most recent and interesting developments. Politics. Unfortunately, Elder Law is in the thick of politics–whether it is dealing with funding of the Medicare or Medicaid system, or social security benefits–they are all hot topics.

The politics go beyond just those issues. There are two cases Elder Law attorneys, as well as others involved in health care and estate planning, are watching. Both are right to die cases.

One is referred to as the Schiavo case out of Florida. Mr. Schiavo is attempting to remove his wife’s feeding tube. The Florida legislature has jumped in to give the governor of Florida the power to intervene and prevent the removal of the feeding tube.

The other is Oregon v. Ashcroft. Oregon passed the Physician-Assisted Suicide law. The then Attorney General, Janet Reno, determined that issues of the regulation of the medical practice was the primary authority of the states and thus the federal government would not get involved. A bill was introduced in Congress to amend the federal “Controlled Substances Act” to empower the Attorney General to revoke doctor’s registrations if they were involved in physician-assisted suicide. The bill failed.

However, as the court put it, “with the change of administration came a change of perspective.” Now, under a directive from Attorney General Ashcroft, it is a crime for a doctor in Oregon to write a prescription under the Oregon Death with Dignity Act. The State of Oregon has filed suit to stop the Attorney General. The matter has gone as far as the 9th Circuit Court of Appeals. Thus far, the Courts have held that the acts of the Attorney General are unlawful and unenforceable.

Both these cases are on appeal. Why are they important and of interest? Their impact on rights of the elderly and others to make end of life decisions is very significant.


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