Federal Action Deferred; Michigan to Vote

Among the many bills set aside in the 105th Congress's October rush to adjourn was a proposal to clarify the Controlled Substances Act to bar use of federally regulated drugs for assisted suicide.

The Lethal Drug Abuse Prevention Act (H.R. 4006, S. 2151), approved by the House Judiciary Committee in August, received a favorable vote of 11-to-6 in the Senate Judiciary Committee on September 24. At that time, however, chairman Senator Orrin Hatch (R-UT) said he did not expect the bill to receive a full Senate vote in the final days of this Congress. He and other supporters said more time is needed to resolve objections to the bill by some medical groups -- most notably the objection that, contrary to the bill's express language, its enactment may adversely affect use of controlled substances to relieve pain.

A vote on the bill by the full House was also deferred, due to its prime sponsor's other duties. As chairman of the House Judiciary Committee, Rep. Henry Hyde (R-IL) had to turn his full attention to impeachment proceedings involving President Clinton. An effort by Senate sponsor Don Nickles (R-OK) to add a one-sentence rider on this issue to Congress's final omnibus funding bill was ultimately unsuccessful as well. The rider would have required the Justice Department to reinstate the November 1997 policy statement of the Drug Enforcement Administration that assisted suicide is not a "legitimate medical purpose" for the use of federally regulated drugs.

The final weeks of the Congress did set the stage for a more balanced medical debate on this legislation next year. In late September a mailing to Congress and a briefing for congressional staff heralded the formation of Americans for Integrity in Palliative Care, an ad hoc alliance of physicians and others committed to promoting palliative care while combating assisted suicide. The alliance's founding members include hospice physicians Carlos F. Gomez of the University of Virginia and Walter Hunter of Hospice of Michigan, oncologist Eric Chevlen of Ohio, and pharmacology professor Ralph Miech of Brown University. AIPC's materials cite evidence that acceptance of assisted suicide, not its prohibition, threatens good palliative care [see page 3].

With this hiatus in federal action, attention has shifted back to the states. Virginia, Michigan and South Carolina passed new bans on assisted suicide this year; on November 3, Michigan voters face a ballot initiative to legalize the practice.

The legalization proposal, backed by a group of Jack Kevorkian's supporters called "Merian's Friends," has been opposed by dozens of groups ranging from the Catholic Church and right-to-life organizations to state medical and hospice societies. Both the Detroit Free Press and Detroit News have editorialized against Proposal B; even Jack Kevorkian has now urged voters to reject the 12,000-word proposal, saying it imposes too much "stifling bureaucratic red tape" on the dying process [AP, 10/16]. A survey of 600 likely voters published in the October 26 Detroit News shows the proposal losing 61% to 32%, with higher opposition among seniors, black voters and women. Statewide polls show longtime Kevorkian attorney Geoffrey Fieger losing his bid for governor of Michigan by a similar margin.

Recent court action in Oregon, however, makes it likely that legal issues raised by that state's assisted suicide law will not be resolved without congressional action. On September 22, U.S. district judge Michael Hogan dismissed the law suit by which terminally ill patients and their physicians sought to renew a constitutional challenge against Oregon's law [see page 2]. For sick or disabled citizens who believe the Oregon law demeans their rights, Congress may be the court of last resort.

News Briefs

Suit Against Oregon Law Dismissed

On September 22, U.S. District Judge Michael Hogan denied a request by terminally ill plaintiffs to renew their challenge against Oregon's assisted suicide law. The plaintiffs claimed they had standing to sue based on the stigmatic injury they suffer as a class under this law; Judge Hogan said this argument was not distinguishable from one rejected in 1997 by the Ninth Circuit Court of Appeals. In its 1997 decision the Ninth Circuit said the plaintiffs lacked standing to sue, because they could not show that the law had injured them or would imminently do so. On this basis the appellate court vacated Judge Hogan's 1995 ruling that the Oregon law violates the constitutional guarantee of equal protection.

In his September 22 decision, Judge Hogan criticizes the Ninth Circuit for erecting a formidable barrier against challenges to the Oregon law. "Although I am bound by the Ninth Circuit's decision in this case," he writes, "I find it troubling because it may well render Measure 16 incapable of judicial review. A terminally ill person intending to avail himself or herself of assisted suicide is obviously not going to challenge the constitutionality of the statutory scheme. Under this new Oregon law, the suicidal impulses of terminally ill persons are treated differently from the suicidal impulses of those who are not so afflicted.... Had the voters enacted a measure that permitted members of a certain race, gender, religion, or age group to avail themselves of physician assisted suicide, would outraged members of such classes lack standing to challenge the legislation on the ground they had no intention of committing suicide?" Lee v. Oregon, No. 94-6467-HO (D. Or. Sept. 22, 1998)(order denying motion to amend).


"Five Wishes" Living Will Introduced

A Florida-based nonprofit commission, Aging with Dignity, has unveiled a new kind of
advance directive that it hopes will broaden discussions about care at the end of life.

The document, designed to have legal effect in 33 states and the District of Columbia, is called "Five Wishes" because it provides for decisions in five areas: choosing a person to make health care decisions in the event of incompetency; accepting or refusing medical treatments; comfort care; preferences in how to be treated while dying; and final messages to loved ones.

Aging with Dignity founder Jim Towey says the document differs from many living wills in its easy-to-understand language, its references to personal and spiritual as well as medical issues, and its purpose of sparking advance discussion of these issues within families. "It's meant more for the living room than the waiting room," he says [Washington Post Health, 10/27/98, p. 7].

Among the document's "General Instructions" is the statement: "I do not want anything done or omitted by my doctors or nurses with the intention of taking my life." At an October 22 press conference announcing national distribution of "Five Wishes," Towey said that giving patients a greater sense of controlling their destiny should combat the desperation that leads some patients to consider assisted suicide.

More information is available on the group's Web page, www.agingwithdignity.org.


New York Veterinarian Admits to Euthanasia

On October 14, Upper East Side veterinarian Marco Zancope was arraigned in Manhattan Criminal Court for second-degree manslaughter. Zancope admits to ending the life of friend and receptionist Cara Beigel, 33, in August 1997, when she was a breast cancer patient at Memorial Sloan-Kettering Cancer Center. Zancope administered a lethal dose of pentobarbital, a drug often used to euthanize pets.

In 1995, George Delury was convicted under the state's law against assisting a suicide and served four months in prison [AP, 10/15; New York Times, 10/17, p. A14].

Is Pain Control Undermined by Banning Assisted Suicide, or by Legalizing It?

Since Oregon first voted to legalize physician-assisted suicide in November 1994, proponents have predicted that a permissive policy on this practice would encourage physicians to improve their use of pain control medications generally.

Some news reports now claim that this has occurred. For example, the Boston Globe recently reported: "Since 1994, Oregon has moved from 11th to first among states in prescription rates for morphine" ["New date show care improved for aged, dying," Boston Globe, 10/7/98, p. A19].

But the facts contradict this claim. While use of pain medications may have increased when Oregon's new law was enjoined by a federal court from 1994 to 1997, this trend did not last. Federal data from the Drug Enforcement Administration (DEA) show that Oregon's ranking among states in per capita use of morphine was higher in 1992, two years before legalization, than it is today:

1992 - 3rd highest morphine use in the nation
1993 - 10th
1994 - 11th (year of campaign to pass assisted suicide measure)
1995 - 3rd (measure approved but enjoined by federal court)
1996 - 2nd (measure still enjoined)
1997 - 6th (law takes effect late October 1997)
1998 - 7th (for first three quarters, January - September) (preliminary data)

Oregon officials have noted an increase in the pain experienced by patients dying in the state's hospitals in the last two months of 1997 -- but supporters of the assisted suicide law blame this on the "chilling effect" of a November 1997 statement by the DEA that Oregon physicians may not prescribe controlled substances for assisted suicide ["Oregon study finds increase in pain among the dying," The Oregonian, 10/7/98]. The facts do not bear out this claim. Preliminary data suggest that after U.S. attorney general Janet Reno reversed the DEA policy and declared on June 5 that Oregon physicians may implement the new state law, Oregon's standing among the states in use of morphine declined further.

In both 1997 and 1998, Oregon was outpaced in per capita morphine use by five states that have not legalized assisted suicide:

Three of these states ban the practice by statute (New Hampshire, Missouri and Arizona). New Hampshire's legislature has debated and defeated proposed legalization measures during this time.

One of the five top states (Vermont) bans assisted suicide by common law, while one (Nevada) has no clear law on assisted suicide.

However, in the first half of 1998 the ranking of the other three states which have no clear law against assisted suicide was:

Wyoming - 46th
Utah - 48th
Hawaii - 49th

In 1996, Iowa and Rhode Island passed new bans on assisted suicide. Both states experienced significant increases in morphine use after the ban's enactment. Rhode Island more than doubled its rate of morphine use in one year, leaping from 46th among states in per capita morphine use to 19th; it stands at 18th highest state this year.

In amicus curiae briefs in last year's Supreme Court cases on assisted suicide, medical groups predicted that legalization could undermine efforts to improve palliative care. According to the American Medical Association's brief, "states could reasonably conclude that abandoning the prohibition on physician-assisted suicide will undermine the provision of palliative care to those who need it....[T]he prohibition on physician-assisted suicide provides health care professionals with a tremendous incentive to improve and expand the availability of palliative care." The latest figures on morphine use support the AMA's claim: Legalizing assisted suicide may undermine the use of pain medication, while banning the practice creates incentives to meet dying patients' real need for pain control.

Background: ALS Patients Discuss Assisted Suicide

A study in the October 1 New England Journal of Medicine provides some unexpected insights into views of assisted suicide among patients with severe disabilities -- and their care givers.

The study was based on a survey conducted between 1995 and 1997, involving 100 patients with amyotrophic lateral sclerosis (ALS or "Lou Gehrig's disease") and 91 family care givers in Oregon and Washington. The mean duration of illness since the diagnosis was 2.8 years. Fifty-six patients agreed with the statement, "Under some circumstances I would consider taking a prescription for a medicine whose sole purpose was to end my life." Of these, 44 patients agreed with the statement, "If physician-assisted suicide were legal, I would request a lethal prescription from a physician."

Remarkably, the 56% figure for ALS patients in Oregon and Washington is not very different from what one might find in the general population in those states. For example, in a 1994 Tarrance poll, 50% of Oregonians said yes to the question: "Would you want your own family doctor to be somebody who was willing to assist with a patient's suicide?" (The figure was 40% in the nation as a whole.)

In the new study, patients' views on assisted suicide did not correlate with the severity of their pain or disability. Decisive factors were: depth of feelings of hopelessness, and depth of religious commitment (with more hopeful and more religious patients rejecting assisted suicide).

Over a fifth of the family care givers were wrong in predicting patients' view of assisted suicide -- and they were twice as likely to wrongly predict willingness to consider it (14 cases) as to wrongly predict unwillingness (7 cases). This despite an average of 30 years' association (usually marriage) with the patient. This finding raises serious questions about any prospect of allowing surrogate decision making for death by family members. According to Faye Girsh, executive director of the Hemlock Society, assisted suicides "are often done when it becomes too much for the caregiver" [Baltimore Sun, 10/21/98, p. 1B; emphasis added].

Of the 44 patients who said they might ask for the lethal drugs now if it were legal, 36 said they would not take the drugs now but save them for later use when the illness becomes worse. This finding calls into question the Oregon law's assurances about allowing a psychological assessment of patients before they are given a lethal prescription, since such an assessment may in most cases be conducted nowhere near the time when the drugs are actually taken.

The authors note that support for assisted suicide in this survey may be biased in an upward direction: the patients were mostly "white, college-educated, and male," and these factors are all associated with higher support for the practice.

[See: Linda Ganzini, M.D., et al., "Attitudes of Patients with Amyotrophic Lateral Sclerosis and Their Care Givers toward Assisted Suicide," 339 New England Journal of Medicine 967-73 (Oct. 1, 1998)]

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