Debate Begins on Federal Assisted Suicide Law

A debate has begun on the application of federal drug laws to assisted suicide -- a debate which may result in a new federal law to counter Oregon's experiment in doctor-assisted death.

Last November the Drug Enforcement Administration (DEA) concluded that assisting a suicide is not a "legitimate medical purpose" for the use of federally regulated drugs, and that using such drugs to assist a suicide could cost a physician the federal DEA registration authorizing him or her to prescribe controlled substances. But on June 5, U.S. attorney general Janet Reno reversed the DEA policy, ruling that the Controlled Substances Act "does not authorize the DEA to prosecute, or to revoke the DEA registration of, a physician who has assisted in a suicide in compliance with Oregon law" [see page 4].

The attorney general added that the DEA could act against physicians in states that have not legalized assisted suicide, and even in Oregon when "a physician fails to comply with state procedures in doing so." By ruling that the DEA would actively help Oregon enforce its policy of authorizing some assisted suicides while forbidding others, Ms. Reno made a congressional response inevitable.

On the day of the attorney general's ruling, Representatives Henry Hyde (R-IL) and James Oberstar (D-MN) introduced H.R. 4006, the Lethal Drug Abuse Prevention Act of 1998. Senator Don Nickles (R-OK), the Assistant Majority Leader of the Senate, introduced a Senate version (S. 2151) four days later. Both bills would clarify the Controlled Substances Act by stating that a medical practitioner who misuses controlled substances to assist suicides may lose his or her DEA registration. The bills distinguish assisted suicide from legitimate use of drugs for pain management, using language endorsed by the American Medical Association (AMA) last year as part of the Assisted Suicide Funding Restriction Act. A physician investigated by the DEA may demand a hearing before an advisory panel of medical experts, who can advise the DEA on whether his or her actions are consistent with the legitimate purpose of controlling pain.

Despite the sponsors' commitment to encouraging legitimate use of drugs for pain control, the AMA and some other medical groups oppose the legislation. While reaffirming that assisted suicide is "incompatible with the physician's role as healer," the AMA has somewhat confusingly attacked the legislation as a "federal intrusion" into "the practice of medicine." It adds that the legislation will have a "chilling effect" on the use of drugs for pain control.

The bills have nonetheless moved forward rather quickly. The House bill has acquired 44 co-sponsors, and the Senate version has 23. On July 14 the House Judiciary Subcommittee on the Constitution held a hearing on the bill; on July 22 it approved amendments to give further protection to legitimate pain control efforts, then approved the bill on a party-line vote of 6-to-5. As of this writing, a markup in full House Judiciary Committee and a hearing in the Senate Judiciary Committee were scheduled to take place before Congress leaves for its August recess.

At the July 14 hearing, several physicians disagreed with the AMA and endorsed H.R. 4006, saying it will prevent misuse of federally regulated drugs to kill patients without infringing on legitimate medical practice. Even Dr. Thomas Reardon of Oregon, testifying for the AMA as its president-elect, conceded that his own "personal view" is the one he expressed last November, when he publicly welcomed the DEA's policy. Governor Kitzhaber of Oregon urged Congress to allow his state's carefully crafted law to function -- but when asked what the penalties are for violating Oregon's careful "safeguards" against abuse, he said he was "not aware" of any such penalties.

News Briefs

Poll: No Majority for Assisted Suicide

A new poll by the national polling firm Baselice & Associates suggests that Americans' support for assisted suicide may have peaked.

The telephone survey, conducted June 6-8, asked 1000 registered voters: "As you may know, physician-assisted suicide involves a doctor giving a patient the means to end their life, such as a prescription for a fatal dose of a drug. Do you think it should be legal or illegal for a doctor to help a terminally ill patient commit suicide?" Forty-eight percent said it should be "legal," 40% said "illegal" and 11% were unsure.

The same question showed 50% support for legalization when asked by the Washington Post in March 1996 and by the Tarrance Group in October 1996 [see June 1996 and Oct. 1996 Life at Risk].

The new poll shows lower than average support for legality among women (45%), voters aged 65 or older (40%), those with an annual income under $25,000 (36%), African Americans (27%), and weekly churchgoers (31%).

Michigan Petition May Go To Ballot

Despite a very high number of invalid ballots, a measure to legalize assisted suicide may well appear on Michigan's November ballot.

Merian's Friends submitted a reported 379,813 signatures May 26 to place the measure on the ballot. On July 7 an opposing group, Citizens for Compassionate Care, filed a challenge with the state Elections Bureau saying that up to 40% of the signatures were invalid, in part because many paid signature gatherers were not state residents [Detroit Free Press, 7/8/98]. On July 20 the State Board of Canvassers voted 4-to-0 to certify the initiative for the ballot, but found only 261,455 valid signatures -- 14,328 over the minimum [Michigan Information & Research Service, 7/20].

The state legislature on July 3 gave final approval to a ban on assisted suicide after settling earlier differences on its effective date. Under the ban, assisting suicide is a crime punishable by up to five years in prison and a $10,000 fine [Washington Post, 7/4]. Signed by Governor Engler on July 28, it takes effect September 1.

Kevorkian: New Legal Entanglements

Jack Kevorkian's latest actions have cost him some support and led to new legal problems.

His May 7 arrest for scuffling with police at a Detroit hospital [see May Life at Risk] has led the Oakland County gun board to suspend his permit for a concealed weapon. His trial on charges of obstructing a police officer may begin in August [Detroit News and Detroit Free Press, 6/3].

On June 7, Kevorkian aided the suicide of Joseph Tushkowski, 45, a Las Vegas man with quadriplegia. This time he acted on a conviction he has long expressed in his writings, removing the dead man's kidneys and offering them for transplant. Public revulsion grew when a medical examiner said that Tushkowski's body had been "mutilated" to harvest the organs in what he called "a scene from a slaughterhouse" [Detroit News, 6/9]. There were no takers for the organs, and Michael Odette, one of Kevorkian's attorneys, resigned from his defense team. "I believe in assisted suicide," he said, "but he went too far this time, and I want no part of it anymore" [Detroit Free Press, 6/29]. City attorneys said Kevorkian had violated a state law against mutilating a corpse, and asked a district judge to revoke his bond or revise its conditions to prohibit organ harvesting [AP, 6/30]. On July 9 the judge did modify the conditions, so Kevorkian can be jailed if he aids suicides while on bail [UPI, 7/9].

On July 16, the Michigan Department of Consumer & Industry Services served Kevorkian with a subpoena demanding his records on 42 patients he has "treated" since the department's April 1997 Cease and Desist Order directing him to stop "practicing medicine without a license" [Press release, 7/16]. Kevorkian refused to turn over the records, which could lead to a fine or jail time [AP, 7/25].

VERBATIM: Catholic Bishops' Letter to Congress on Lethal Drug Abuse Prevention Act

On June 12 the General Secretary of the National Conference of Catholic Bishops wrote to all members of Congress urging support for the Lethal Drug Abuse Prevention Act of 1998 (S. 2151, H.R. 4006). Excerpts follow:

Swift enactment of this legislation is necessary due to a seriously flawed ruling by U.S. Attorney General Janet Reno...

The ruling asserts that Oregon, by rescinding its own civil and criminal penalties for assisting the suicides of certain patients, has established assisted suicide as a "legitimate medical practice" within Oregon's borders -- and that the federal government lacks any basis for disagreeing with this judgment. Under this ruling, however, federal intervention by the Drug Enforcement Administration in Oregon "may well be warranted" in cases where a physician "fails to comply with state procedures" regarding how and when to assist suicides. Federal law will protect the lives only of those deemed by the state to be "ineligible" for assisted suicide.

The Oregon assisted suicide law, in and of itself, poses an enormous threat to human dignity and to equal protection of all citizens under law. While continuing to forbid assistance in the suicide of a young and healthy person, this law rescinds criminal, civil and professional penalties for a doctor who assists the suicide of someone he or she believes "in good faith" to have six months to live. Ironically, once this "good faith" judgment is made it will never be proved wrong, because the patient will be dead from a drug overdose in a few days. Oregon's discriminatory policy stigmatizes an entire class of vulnerable patients as having lives not worth protecting. For this reason it has been found unconstitutional by the only federal court to review Oregon's law on the merits. See Lee v. Oregon, 891 F.Supp. 1429 (D. Or. 1995), vacated on other grounds, 107 F.3d 1382 (9th Cir. 1997), cert. denied, 118 S. Ct. 328 (1997).

Current federal policy demands an increased penalty when the victim of a crime is seriously ill or otherwise "unusually vulnerable" (United States Sentencing Commission, Guidelines Manual, p. 227, § 3A1.1). How, then, can the federal government now adjust its penalties under the Controlled Substances Act to confirm and enforce Oregon's discriminatory policy on assisted suicide -- where the vulnerable condition of the victim turns a crime into a "legitimate medical practice"?

Any "states' rights" argument on this issue is contradicted by the plain language and intent of the federal Controlled Substances Act. Provisions to ensure that narcotics and other dangerous drugs are used solely for a "legitimate medical purpose" (21 C.F.R. § 1306.04), and are never used to endanger "public health and safety" (21 U.S.C. § 823(b)(5)), were included in this Act and its implementing regulations precisely to establish a uniform federal standard that would not rely on the vagaries of individual state laws. The clear intent of such provisions was to prevent the use of federally regulated drugs for lethal overdoses, not only their use for addiction... Moreover, as the U.S. Supreme Court noted in last year's assisted suicide rulings, it is longstanding policy under the federal drug laws "to protect the terminally ill, no less than other patients," from potentially lethal drugs. See Washington v. Glucksberg, 117 S. Ct. 2258, 2272 (1997), quoting United States v. Rutherford, 442 U.S. 544, 558 (1979).

The proposed Act provides a focused and reasonable vehicle for reaffirming federal obligations to protect the vulnerable from lethal drugs. It affirms that assisting a patient's suicide is not one of the legitimate medical purposes for which controlled substances are entrusted to physicians by the federal government. It clearly distinguishes assisted suicide from legitimate pain control practices, using language which received nearly unanimous support from Congress last year as part of the Assisted Suicide Funding Restriction Act. Finally, it provides for peer review by medical experts in any case where a physician believes this distinction is being misapplied to infringe upon the use of controlled substances for legitimate pain control.

Background: Attorney General Janet Reno on Oregon's Law

Excerpts from U.S. attorney general Janet Reno's June 5 statement on Oregon's assisted suicide law:

The Department has conducted a thorough and careful review of the issue of whether the Controlled Substances Act (CSA) authorizes adverse action against a physician who prescribes a controlled substance to assist in a suicide in compliance with Oregon's "Death With Dignity Act." We have concluded that adverse action against a physician who has assisted in a suicide in full compliance with the Oregon Act would not be authorized by the CSA....

The relevant provisions of the CSA provide criminal penalties for physicians who dispense controlled substances beyond "the course of professional practice," and provide for revocation of the DEA drug registrations of physicians who have engaged either in such criminal conduct or in other "conduct which may threaten the public health and safety." Because these terms are not further defined by the statute, we must look to the purpose of the CSA to understand their scope.

The CSA was intended to keep legally available controlled substances within lawful channels of distribution and use. It sought to prevent both the trafficking in these substances for unauthorized purposes and drug abuse. The particular drug abuse that Congress intended to prevent was that deriving from the drug's "stimulant, depressant, or hallucino-genic effect on the central nervous system."

There is no evidence that Congress, in the CSA, intended to displace the states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice. Indeed, the CSA is essentially silent with regard to regulating the practice of medicine that involves legally available drugs except for certain specific regulations dealing with the treatment of addicts.

The state of Oregon has reached the considered judgment that physician-assisted suicide should be authorized under narrow conditions and in compliance with certain detailed procedures. Under these circumstances, we have concluded that the CSA does not authorize DEA to prosecute, or to revoke the DEA registration of, a physician who has assisted in a suicide in compliance with Oregon law. We emphasize that our conclusion is limited to these particular circumstances. Adverse action under the CSA may well be warranted in other circumstances: for example, where a physician assists in a suicide in a state that has not authorized the practice under any conditions, or where a physi-cian fails to comply with state procedures in doing so. However, the federal government's pursuit of adverse actions against Oregon physicians who fully comply with that state's Death with Dignity Act would be beyond the purpose of the CSA.

Finally, ...it is important to underscore that the President continues to maintain his longstanding position against assisted suicide and any Federal support for that procedure... While states ordinarily have primary responsibility for regulating physicians, the President and the Administration nonetheless remain open to working with interested members of Congress on this complex but extremely important issue.

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