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Prohibiting Physician-Assisted Suicide at the Expense of Pain Relief
Stephen J. Ziegler, JD and Nicholas P. Lovrich, Jr., PhD
Washington State University
September 2001

Although many of the sponsors of the Pain Relief Promotion Act (PRPA) of 1999 claimed that its purpose was to promote pain relief, it became quite apparent that its primary purpose was to accomplish something quite different – namely, to prohibit the practice of physician-assisted suicide (PAS). In their zeal to prohibit PAS, however, some of the sponsors of the PRPA may have not only impeded pain relief but also seriously compromised the political process as well. We begin by presenting a brief history of the events surrounding the PRPA, then characterize the threat it posed to the provision of pain relief, and finally examine some of the political maneuvering which arguably strained the political process and principles of state sovereignty.

In 1994, Oregon voters approved the legalization of physician-assisted suicide, a citizen-based initiative that permitted physicians to legally prescribe a lethal amount of controlled substances to a terminally-ill patient under certain circumstances (1). Through a series of judicial and legislative maneuvers, opponents of the initiative were able to prevent implementation of the law until November of 1997 when Oregon voters rejected a repeal referendum and the U.S. Court of Appeals for the Ninth Circuit ordered dismissal of the lawsuit that had permanently enjoined enforcement of the Oregon law. Lee v. Oregon (2, 3). Earlier that same year, the U.S. Supreme Court held that although there was no constitutional right to assisted suicide, the individual states and their citizens were free to decide the matter among themselves. Washington v. Glucksberg (4).

Although the voters of Oregon had decided to support PAS in two separate democratic elections, an interest group and a small number of Congressmen were bent on vitiating the Oregon law and preventing its replication in other states. Shortly after the Court’s decision in Glucksberg, supra note 4, Richard Doerflinger of the National Conference of Catholic Bishops contacted U.S. Representative Henry Hyde (R-Ill.), Chairman of the House Judiciary Committee which exercises oversight over the Drug Enforcement Administration (DEA). Doerflinger, concerned that the Oregon PAS “law might be allowed to kick back into effect,” asked Congressman Hyde to see if the Oregon “law could be in conflict with federal law.” (5) Shortly thereafter, Congressman Hyde and U.S. Senator Orrin Hatch (R-UT) sent a co-signed letter to DEA Administrator Thomas A. Constantine, stating in pertinent part:

As chairmen of the House and Senate Judiciary Committees, we write seeking the Drug Enforcement Administration’s view … In our view, assisting in a suicide by prescribing or filling a prescription for a controlled substance cannot be a “legitimate medical purpose” under DEA regulations …As you know, this is an area of special interest to the Congress… Clearly Congress would have a serious concern were any federal agency to construe the intentional prescribing of lethal drugs for suicide as a legitimate medical practice…(6, 7).

Predictably, the day after the Oregon voters approved PAS legislation for the second time, DEA Administrator Constantine informed Representative Hyde and Senator Hatch that physicians who used controlled substances to assist patients in committing suicide could be in violation of the Controlled Substances Act (CSA) (8). Although the letter to DEA Constantine was a legal action by duly elected federal legislators, this back-door approach to eliminating PAS concerns us. First, Representative Hyde and Senator Hatch do not represent the U.S. Congress as a whole. Contrary to the implication that their letter carried, Congress was not united against the Oregon law and the use of controlled substances to hasten the death of terminally ill patients. Secondly, as chairmen of their respective committees, two elected officials out of a 535-member legislative body were able to exert a great deal of influence upon an executive agency concerning a drug policy that had yet to be voted upon. In fact, when the PRPA eventually was voted on, it was nowhere near unanimous; the vote was split along party lines (271 for, 156 against, and 6 not voting) (9). However, despite the fact that Representative Hyde and Senator Hatch got the answer they wanted from the DEA (7), Attorney General Janet Reno soon thereafter reversed the Constantine-Hyde-Hatch drug policy, and in time decided that because PAS is a legally sanctioned practice in Oregon this particular use of controlled substances would not violate the Controlled Substances Act (10, 11). Immediately following this decision, Representative Hyde introduced the Lethal Drug Abuse Prevention Act (12), a bill “designed to reverse a recent decision by Attorney General Janet Reno on the issue” (13). Unlike the earlier letter to DEA Constantine, the introduction of legislation to change a decision of an executive branch official is far more appropriate and consistent with democratic principles than a letter from two of our nation’s 500+ elected legislative representatives. Although we applaud the introduction of legislation that would result in open debate, the Act itself concomitantly imperiled the treatment of pain because it would expand “the grounds for the suspension or revocation of a physician’s DEA certificate if it were determined that a prescription for controlled drugs had hastened a patient’s death” (14). In fact,

Dozens of healthcare and patient groups … successfully argued that enactment would have a chilling effect on pain management by forcing M.D.s.and R.Ph.s to prove to Drug Enforcement Administration agents, untrained in pain management, that the intent of the prescribing /dispensing was to comfort patients, not kill them. The end result could well have been more patients in pain and more of them seeking help to end their lives. (15).

Although H.R. 4006 eventually died, Representative Hyde introduced another bill, The Pain Relief Promotion Act of 1999, an Act which would permit the DEA to prosecute any physician who dispenses controlled substances for the purpose of hastening someone’s death (16, 17). If passed, the DEA would take a lead role in determining what a physician’s intent was when dispensing the medication, and determining what dispensing practices constitute a “legitimate medical purpose” (18, 19). Not only did this new bill raise many of the same concerns as its predecessor concerning the treatment of pain, but its role in defining what was a legitimate medical purpose seemed to be in conflict with a statement by Patricia Good of the DEA: “the CSA by design does not define ‘legitimate medical purpose’ nor does it set forth standards of medical practice. These issues can only be defined by the medical community … ” (20). Consequently, not only would the PRPA effectively overturn Oregon’s PAS initiative and raise federalism concerns, it would represent an intrusion into the doctor-patient relationship by shifting “authority from state medical boards [concerning medical practice] to the” Department of Justice (1, 18, 21, 22). As a result, the Act could ultimately interfere with a clinician’s medical judgment and result in yet another barrier to pain relief for the terminally ill (19).

Fortunately, as was the case with its immediate predecessor, the PRPA did not become law. Nevertheless, the history surrounding the PRPA raises several concerns. First, although the primary purpose of the bill was to prohibit PAS, it posed a substantial risk to the alleviation of pain among the terminally ill. Physicians fearful of prosecution would likely under-medicate, and as a result patients would needlessly suffer (22). Secondly, a small number of elected representatives were not only able to influence national drug policy and medical practice with little public debate, the legislation they subsequently introduced would have constrained medical practice and the sovereignty of a state whose citizens had approved of a particular medical practice designed to enhance choices available to citizens and doctors dealing with terminal illness. Fortunately, the Conquering Pain Act of 2001 has been introduced (23). Unlike its predecessors, the primary purpose of the legislation is the elimination of pain in our society as opposed to the displacement of the policy of an individual state. We applaud the efforts of many members of Congress who are committed to eliminating the barriers to pain relief, and further encourage the broadening of the public debate of controversial issues that are best resolved through the democratic process as opposed to the informal or pre-textual approaches used to achieve a particular end at the expense of pain relief.

1. R.A. Klinck, “Pain Relief Promotion Act,” Harvard Journal on Legislation, 38 (2001): 249-261.
2. J. Fallek, “The Pain Relief Promotion Act: Will it Spell Death to “Death with Dignity” or is it Unconstitutional?,” Fordham Urban Law Review, 27 (2000): 1739-1758.
3. Lee v. Oregon, 107 F.3d 1382 (1997, CA 9).
4. Washington v. Glucksberg, 521 U.S. 702 (1997).
5. S. Suo and E. Hoover, “DEA Deems Suicide Law Illegal,” The Oregonian, November 8, 1997.
6. Letter to DEA Constantine from Henry Hyde and Orrin Hatch, July 29, 1997 (House Committee on the Judiciary Files).
7. G.K. Hill and J. Barnett, “Push is on to Assess DEA Clout on Suicide,” The Oregonian, November 13, 1997.
8. Letter from DEA Constantine to Henry Hyde, November 5, 1997 (visited September 28, 2001) http://www.house.gov/judiciary/constantine.htm.
9. 106 Cong. Rec. H10903 (October 27, 1999).
10. D. Hogan and J. Barnett, “Aided Suicide Cause Storm in Congress.” The Oregonian, April 3, 1998.
11. Letter from A.G. Janet Reno to Henry Hyde, June 5, 1998 (visited September 28, 2001) http://www.house.gov/judiciary/attygen.htm.
12. H.R. 4006, 105th Congr. (1998).
13. Kolb, “Hyde Tries to Reverse Reno in Suicide Bill,” CQ Quarterly, 56, no. 30 (1998): 2022.
14. A. M. Martino, “In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?,” Journal of Law, Medicine & Ethics, 26 (1998):332-349.
15. M. F. Conlan, “U.S. Congress May Try to Kill Oregon’s Assisted-Suicide Law,” Drug Topics, 143, no. 19 (1999): 85-86.
16. H.R. 2260, 106th Congr. (1999).
17. B. Knickerbocker, “Doctor-aided Suicide: Shifting Politics. Pro-life Forces in House Opt for Backdoor Strategy to Try to Curtail,” Christian Science Monitor, September 28, 1999.
18. V. Foubister, “Some Fear Authority Shift in Pain Treatment Bill,” American Medical News, 42, no. 43 (1999): 5-6.
19. D. Orentlicher and A. Caplan, “The Pain Relief Promotion Act of 1999: A Serious Threat to Palliative Care,” JAMA, 283, no. 2 (2000): 255-258.
20. P. M. Good, “The Drug Enforcement Administration and Proposed Model Guidelines for the Use of Controlled Substances in Pain Management” (Speech presented before the Federation of State Medical Boards Symposium on Pain Management and State Regulatory Policy, March 17, 1998, Dallas, Texas)(visited 9/28/2001) http://www.medsch.wisc.edu/painpolicy/domestic/dea98.htm.
21. C.A. Batt, “The Pain Relief Promotion Act of 1999 and Physician-Assisted Suicide: A Call for Congressional Self-Restraint,” San Diego Law Review, 38 ( 2001): 297-332.
22. B.A. Diebold, “The Pain Relief Promotion Act of 1999: Whose Pain Does it Relieve?, “ Loyola Consumer Law Review, 12 (2000): 356-367.
23. H.R. 2156, 107th Congr. (2001); S. 1024, 107th Congr. (2001).