House Approves Pain Relief Promotion Act.

On October 27, the U.S. House of Representatives overwhelmingly approved the Pain Relief Promotion Act of 1999 (H.R. 2260). The vote was 271 to 156, with 71 Democrats supporting the bipartisan measure introduced in June by Rep. Henry Hyde (R-IL) and Bart Stupak (D-MI).

If approved by the Senate and signed by President Clinton, the Act will encourage use of federally regulated drugs for pain relief without allowing their use for assisted suicide or euthanasia in any state [see June Life at Risk].

Before it was approved the measure had to survive two motions designed to derail it. Rep. Bobby Scott (D-VA) offered a motion to strike Title I of the bill, so it would no longer clarify the federal Controlled Substances Act to distinguish aggressive pain control from intentional killing; only the bill's provisions promoting palliative care through the Department of Health and Human Services would have remained. That amendment failed 160 to 268. A second motion, offered by Rep. Nancy Johnson (R-CT), would strike the entire bill and substitute a palliative care proposal crafted by members of Oregon's congressional delegation, the "Conquering Pain Act"; that amendment failed 188 to 239.

House floor debate featured one surprise, as Rep. Marge Roukema (R-NJ), who had signed "Dear Colleague" letters promoting the Johnson substitute, announced that she had decided to support the Hyde/Stupak bill instead. Roukema said she was originally concerned that the bill might have an adverse effect on the use of controlled substances for pain control, but was persuaded otherwise after discussing the legislation with the American Medical Association. She observed that even an October 19 letter from the Justice Department criticizing the bill acknowledges that it would establish a legal "safe harbor" for physicians practicing pain control.

Charges that the bill's policy against assisted suicide could harm pain management were further rebutted by Rep. Todd Tiahrt (R-KS). He noted that similar language -- opposing assisted suicide, while explicitly allowing aggressive pain control -- has been enacted in recent years as part of several states' new bans on assisted suicide. In each case, Tiahrt said, the passage of such legislation was followed by significant statewide increases in per capita use of pain control drugs such as morphine. He documented his case using charts of morphine use in his home state of Kansas as well as in Kentucky, Iowa, Louisiana, Michigan, Rhode Island, Tennessee and Virginia. "Because of experiences in Kansas and other States," he said, "we can be confident that a vote for H.R. 2260 will promote and not threaten improved pain relief."

Especially eloquent in support of the bill were physicians Tom Coburn (R-OK) and Dave Weldon (R-FL). Another Republican physician, Greg Ganske of Iowa, also spoke in its favor, while psychiatrist Jim McDermott (D-WA) opposed it.

Many news reports of the vote exaggerated the bill's scope, describing it as a federal "ban" on assisted suicide or as an effort to "overturn" Oregon's assisted suicide law. The fact that the legislation leaves Oregon law alone, while preserving a consistent definition of "legitimate medical purpose" in a federal law that has governed use of controlled substances for three decades, was lost on some journalists [see page 3]. Claims that the bill violates "states' rights" were also made by House members from Oregon -- and by Senator Ron Wyden of Oregon, who invoked his privilege as a former House member to lobby members on the House floor. Wyden says he will filibuster the bill when the Senate takes it up next year.

News Briefs

Alaska Suicide Suit Rejected

The euthanasia movement's latest attempt to create a state constitutional "right" to assisted suicide has failed -- at least in its first round.

Alaska Superior Court Judge Eric Sanders ruled September 9 that "the prohibition against physician assisted suicide does not violate the liberty, privacy, or equal protection clause of the Alaska Constitution." While finding that a terminally ill patient's request for physician assistance in suicide implicates the state constitutional right to privacy and other interests, Judge Sanders concluded that the ban on assisted suicide bears "a close and substantial relationship to the [state's] legitimate goal of protecting the general health and welfare."

The lawsuit, filed last December by Kevin Sampson and other Alaskans with the help of Compassion in Dying, sought to base a right to assisted suicide on past rulings' expansive reading of Alaska's constitutional "right to privacy" [see May and July/August Life at Risk]. Sanders' ruling has been appealed to the Alaska Supreme Court, with oral arguments expected next year.


Woman with Dementia Assisted in Suicide

The most recent case of assisted suicide to come to light in Oregon has raised new questions about the state's "safeguards" against abuse.

The case involved Kate Cheney, an 85-year-old woman with cancer who also had early-stage dementia. After her initial request for assisted suicide was refused by her own doctor, she sought a second physician with the help and encouragement of her adult daughter. That physician requested a psychological evaluation, which found Mrs. Cheney incompetent to make an assisted suicide decision; the psychiatrist reported that while Cheney herself seemed to accept his judgment, the daughter was very angry. The patient's HMO then authorized a second psychological evaluation -- and this psychologist, despite finding the daughter "somewhat coercive," concluded that her mother was competent to choose death. An HMO administrator then met with Mrs. Cheney and approved her request, and she ingested a lethal overdose about a month later [The Oregonian, 10/16 and 10/31].

Noting that such "doctor-shopping" was also apparent in Oregon's first reported case of assisted suicide, attorney Wesley Smith commented that once assisted suicide is accepted as a possible good, "the 'protective guidelines' allegedly designed to guard the lives of vulnerable people soon become scorned as obstacles to be circumvented" [The Weekly Standard, 11/8/99].


Assisted Suicides in the News

• Dr. Georges Reding, longtime associate of Jack Kevorkian, remains in hiding to evade criminal charges for his involvement in a New Mexico woman's death in 1998 [see May 1999 Life at Risk]. A warrant was issued for his arrest in September after he failed to appear for his arraignment. If found he also faces a wrongful death suit by the woman's relatives, who say he "breached the duty of care which he owed to Donna Brennan" as her physician [AP, 9/29/99].
  
  
• In Saginaw, Michigan, a critical care nurse is suspected of giving a lethal injection to at least one dying patient last year. The hospital in question, now part of the Covenant HealthCare System, is cooperating with police and conducting its own inquiry [APBnews.com, 10/27]. And in Indiana, the trial of nurse Orville Lynn Majors ended with convictions on six counts of murder [Washington Post, 10/18]. Majors was accused of giving fatal doses of potassium chloride to seven patients [see July/August Life at Risk].
  
  
• A Frankfort, Illinois cardiologist will not be charged with murder for allegedly giving a fatal injection of potassium chloride to an imminently dying patient in September 1998. Cook County prosecutors found that the only witness to the injection thought the patient was dead when it was given. Dr. Lance Wilson still may face state disciplinary sanctions and a wrongful death suit by the patient's family [Star Newspapers (Illinois), 9/30].

Comments and Corrections on the Pain Relief Promotion Act

Opponents of the Pain Relief Promotion Act have consistently exaggerated the legislation's scope, and much of this misinformation has been repeated in news reports and commentaries. Below are some widely repeated claims, and appropriate factual corrections.

Claim: "The Republican-controlled House yesterday voted to ban physician-assisted suicide..." [Washington Post, 10/28].

Correction: The bill affects only a relatively narrow class of drugs that have been under federal jurisdiction for three decades. Prescribing such drugs requires a special federal "registration" or license from the DEA, which is separate from a state license to practice medicine; many physicians never obtain such a registration. Other means for assisted suicide are available and even advertised by euthanasia groups.


Claim: "The bill would give the Drug Enforcement Administration the power to determine whether a controlled substance has been prescribed for a legitimate medical purpose" [Ron Wyden, in New York Times, 10/23/99].

Correction: Congress gave the DEA that power in 1970 (see 21 CFR §1306.04, first published at 36 Fed. Reg. 7799 [1971]). In the last two decades, the DEA has applied the standard of "legitimate medical purpose" over 250 times to determine whether practitioners' federal registrations for using controlled substances should be retained or revoked.


Claim: The bill has a "draconian provision" under which "the prescribing doctor could spend 20 years in prison" [New York Times editorial, 10/30].

Correction: No such provision exists -- in fact, the bill has no penalty provision. It simply states that doctors who use controlled substances to assist suicides in Oregon are not exempted from the penalties that already apply to everyone else under existing law. A criminal penalty is possible in theory when any physician misuses controlled substances to cause a person's death; this applies today in 49 states, and even in Oregon when a physician assists a suicide outside the bounds of Oregon's guidelines. However, while physicians have had their DEA registrations revoked in recent years for being involved in suicides or other lethal overdoses using controlled substances [see list at www.house.gov/judiciary/attach1.htm], any follow-up criminal charges are at the discretion of the Justice Department and are virtually unheard of when physicians are involved. The House Judiciary Committee's report on H.R. 2260 cites past congressional statements on the intent of the Controlled Substances Act, to reaffirm that an administrative penalty (revoking special federal prescribing privileges) will generally be the only penalty contemplated -- Congress even expects that physicians will generally retain their state medical licenses after a federal registration is revoked.


Claim: Because the bill bans "intentional" use of narcotics to assist suicide, while allowing their use for pain control that may unintentionally hasten death, there will be "thousands of cases each year in which the intent of the physician could be questioned under this law" [Gov. John Kitzhaber of Oregon, Washington Post, 11/2].

Correction: No new "intent" standard is created by the bill. Intentional assistance in suicide is already a felony in most states and a violation of professional standards in all states, including Oregon -- and thus already provides a basis for revoking a DEA registration as well. The only cases of assisted suicide newly covered by the federal bill are those which have been newly permitted by Oregon -- and in all those cases, physicians are required by state law to report explicitly what their intent is. In no case, then, is any new questioning of doctors' intent by the DEA called for. In 49 states, the only new standard created by this bill is its clearer and more explicit "safe harbor" for physicians practicing pain control -- a new protection, not a threat.

Background: Web Sites on Pain Relief Promotion Act

All pending federal legislation can be accessed on Congress's online service "THOMAS": http://thomas.loc.gov. One can search for the text of a bill, or for a report on its status and sponsors; searches can be done by bill number, sponsor, key words, etc. This site also provides transcripts of floor debates as printed in the Congressional Record (debate on HR 2260 was in the House on October 27).

House Judiciary Committee report on HR 2260:
ftp.loc.gov/pub/thomas/cp106/hr378p1.txt

House Commerce Committee report:
ftp.loc.gov/pub/thomas/cp106/hr378p2.txt

June issue of Life at Risk, including summary of bill and list of initial supporting groups:
www.nccbuscc.org/prolife/publicat/liferisk/june99.shtml

July/August issue, reporting on its progress:
www.nccbuscc.org/prolife/publicat/liferisk/julyaug99.shtml

Catholic Bishops' testimony in support of the bill:
www.nccbuscc.org/prolife/issues/euthanas/painrelief.shtml

Complete testimony on bill in House Judiciary Subcommittee on the Constitution (supportive testimony by R. Doerflinger, W. Hunter, G. Hamilton, T. Marzen and S. Beckwith; opposing testimony by A. Jackson, D. Joranson and D. Orentlicher): www.house.gov/judiciary/2.htm

Attachment to Doerflinger testimony, listing past cases in which the Drug Enforcement Administration acted against health professionals involved in suicides or other overdoses: www.house.gov/judiciary/attach1.htm

Attachment to Doerflinger testimony, documenting Congress's 1984 decision to allow revocation of a DEA prescribing license for actions that endanger "health and safety" even when such actions may not be forbidden by state law: www.house.gov/judiciary/attach2.htm

Excellent background piece by House Judiciary Committee staff:
www.house.gov/judiciary/ib062399.htm

Questions and answers on the bill, from the American Medical Association: www.ama-assn.org/ama/basic/article/0,1059,199-483-1,00.htm

A more technical analysis by AMA staff:
www.ama-assn.org/ad-com/roots/leg1099.pdf

Oregon Right to Life page on physician-assisted suicide, with links to related sites and to ongoing coverage of this debate in Oregon: ortl.org/suicide.htm

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