by Richard M. Doerflinger
July 10, 1998
Those following the debate on partial-birth abortion have noticed a curious fact. Opponents of a ban on this horrific act rarely claim to support the act itself -- instead they claim to be defending women's freedom and women's health. The fact that the procedure is strongly opposed by most women and does not serve women's health scarcely fazes them.
Similar tactics are now in play against a new federal bill on physician-assisted suicide, the Lethal Drug Abuse Prevention Act (H.R. 4006).
The bill is simple. For many years, dangerous but medically useful drugs such as morphine and barbiturates have been federally regulated under the Controlled Substances Act. No one may dispense or distribute them except a medical practitioner, who must register with the U.S. Drug Enforcement Administration (DEA) and use his or her registration number on each prescription. A doctor's registration can be revoked if his or her actions threaten "public health and welfare," as when these drugs are used for anything but a "legitimate medical purpose." H.R. 4006 simply adds that assisting suicide is not a "legitimate" use of these drugs.
This is pretty straightforward. After all, Congress passed a law last year barring federal health programs from treating assisted suicide as a medical procedure. H.R. 4006 would not be needed at all, except that U.S. attorney general Janet Reno has misinterpreted the law to allow the use of federally regulated drugs to assist suicides in Oregon.
The standard of "legitimate medical purpose" was added to the federal law in 1984 precisely to allow federal action against misuses of drugs which state laws do not address effectively. Ms. Reno has turned the law on its head: By her interpretation, each state may now redefine "legitimate medical purpose" -- even to include killing patients. In effect, since Oregon now allows doctors to assist suicides, the DEA must lend a hand by giving these doctors access to the most effective drugs for the job. Clearly, unless H.R. 4006 is enacted, the federal government will be drawn into actively facilitating assisted suicide.
But opponents of the bill are clever. They do not say the DEA should open its drug cabinets to would-be Kevorkians because assisted suicide is a good thing. Instead, they say that H.R. 4006 violates states' rights, and endangers good pain management.
Some Oregon politicians are strong proponents of the "states' rights" claim. But the claim is misplaced, because control of these drugs has been under federal jurisdiction for almost thirty years. Even the forms used to prescribe the drugs have to be obtained from the federal DEA -- and doctors obtain them free of charge because the forms are paid for with federal tax dollars. Nor does this bill supplant states' authority to license physicians. As the U.S. Senate's official report on the Controlled Substances Act explained in 1984:
"Registration of a physician under the Controlled Substances Act is a matter entirely separate from a physician's State license to practice medicine. Therefore, revocation of registration only precludes a physician from dispensing substances controlled under the Controlled Substances Act and does not preclude his dispensing other prescription drugs or his continued practice of medicine."
At the risk of stating the obvious: Federal standards for use of federally regulated drugs are a federal matter. Sometimes those standards will be stricter than a state's standards of medical practice -- especially if the state's standards sink as low as Oregon's have.
The other argument is that giving new authority to the DEA will discourage doctors from practicing aggressive pain control, because they will fear being suspected of assisting suicides. This argument ignores the fact that the DEA already has authority to act against doctors who misuse these drugs to endanger life or health. H.R. 4006 is needed to ensure that Oregon's law does not carve out a new exception in federal law.
H.R. 4006 does make new law in some respects -- but these are all in the direction of promoting good palliative care. For the first time, it writes language into the Controlled Substances Act clearly distinguishing assisted suicide from pain control efforts that may unintentionally risk hastening death -- language enthusiastically endorsed by the American Medical Association when it was included in the law against federal funding of assisted suicide last year. H.R. 4006 also allows any doctor suspected of assisting a suicide to convene a panel of medical experts, to review the medical facts and decide whether the doctor was only trying to practice good pain control; the DEA must take the experts' findings into account before it acts.
Some impressive medical experts have endorsed H.R. 4006: former surgeon general C. Everett Koop; Dr. Carlos Gomez, director of palliative care at the University of Virginia; Dr. Walter Hunter, medical director of Hospice of Michigan and an ethics advisor to national hospice groups; Dr. Edmund Pellegrino of Georgetown University.
These medical experts know something else: The greatest threat to good palliative care today is acceptance of assisted suicide. In countries where assisted suicide becomes the "quick and easy" solution to dying patients' problems, as in the Netherlands, the more difficult but life-affirming solutions are soon neglected. To protect good palliative care, as well as the life and dignity of vulnerable patients, H.R. 4006 should be enacted without delay.
(Mr. Doerflinger is Associate Director for Policy Development at the Secretariat for Pro-Life Activities, National Conference of Catholic Bishops.)