Ever since he discovered that he's terminally ill, Don James has played a mental game with himself as he tries to outlive the months.
"February is sort of a short month, so I've pretty much got this one licked," said the 79-year-old, diagnosed with advanced colon cancer in 2001.
If he makes it to April 2, he gets to celebrate his 80th birthday. If he makes it to May 26, he can cut a slice of 60th anniversary cake with his wife, Claire.
But if the time comes when he can't go on, he has a plan. All he has to do is sign a waiver, and he will have what he calls a "comforting" little bottle on the shelf — narcotics to end his life.
Now he has another reason to hang on: The Supreme Court announced Tuesday it will hear the Bush administration's challenge to Oregon's unique assisted suicide law (search).
James said he's glad that the high court will decide a controversy that has been flaring since the Oregon law was originally approved by voters 11 years ago.
"We need to get it over with," said James, who believes the Oregon law will be upheld by a majority of the Supreme Court but worries what might happen if any of the current justices have to be replaced.
Attorney General Alberto Gonzales will be facing an uphill legal battle against the assisted suicide law that has twice been upheld by a federal appeals court and twice approved by Oregon voters.
Gonzales' predecessor, John Ashcroft, had claimed the federal Controlled Substances Act (search) allowed him to decide whether doctors could prescribe lethal overdoses under the Oregon law.
Ashcroft issued a directive in 2001 that claimed such overdoses were not a "legitimate medical purpose" under the act, allowing him to use federal narcotics laws to punish doctors who followed Oregon's law.
A federal judge and the 9th U.S. Circuit Court of Appeals both strongly rejected that argument, and admonished Ashcroft for issuing a directive that was both "unlawful and unenforceable."
The fundamental issue, the lower courts said, is state regulation of medical practice — a responsibility the federal government has delegated to the states since the nation was founded.
The Oregon law was first approved in 1994 after Washington state and California failed to pass similar laws. But in both neighboring states, there was an important distinction — doctors would have been allowed to directly administer a lethal overdose to a patient.
The difference in the Oregon law is that the patient must take the lethal overdose himself or herself — the doctor may only prescribe the drug, and only after another doctor has jointly determined the patient has less than six months to live, and remains in sound mind to make the decision.
Dr. Kenneth Stevens, a spokesman for Physicians for Compassionate Care (search), which opposes assisted suicide, said Oregon's law has not operated as flawlessly as proponents contend.
"We have many instances where there has been misuse of assisted suicide, where patients who are depressed have received the lethal medications," Stevens said.
Doctors have reported 171 people have used the law to end their lives, most of them suffering from cancer with an average age of 68. Figures for 2004 have not been released, but the total was expected to increase by about 35 to 40 people for the year.