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Pain Relief and Prohibiting PAS: The Saga Continues
Stephen J. Ziegler, JD and Nicholas P. Lovrich, Jr., PhD
Washington State University
November 2001

In the fall of 2001, United States Attorney General John Ashcroft, acting on his own authority, declared what type of drug prescribing practices constituted the legitimate use of controlled substances in the state of Oregon. According to his directive, Oregon physicians who prescribed, dispensed, or administered controlled substances for the purposes of assisting terminally ill patients to end their lives were violating federal law because assisting suicide is not a legitimate medical purpose under the federal Controlled Substances Act. Although Oregon voters had legitimized this medical practice twice by approving the state's Death With Dignity Act by direct legislation, U.S. Attorney General Ashcroft attempted to do what Congress had been unable to do -- namely, prohibit the practice of physician-assisted suicide (PAS) in the state of Oregon. In what is arguably another chapter in a continuing saga pitting the rights of the state and individual against the dictates of federal officials, the "Ashcroft Directive" and the partisan-based war against physician-assisted suicide ultimately come at the unfortunate expense of suffering patients and American democratic principles.

On November 9, 2001, U.S. Attorney General John Ashcroft published a directive reversing an earlier opinion issued by former U.S. Attorney General Janet Reno that the use of controlled substances pursuant to the Death With Dignity Act in Oregon did not violate the federal Controlled Substances Act. Like many other conservative Republicans who normally champion states' rights (unless such action contravenes conservative morality policy preferences), Attorney General Ashcroft sought to override the public policy of a democratic state polity and impose his own views on what is and is not legitimate medical practice. Although a federal court recently nullified Ashcroft's directive (and that decision will likely be appealed), the action of the Attorney General in issuing his directive was objectionable on several grounds.

First, the Ashcroft Directive affected the delivery of palliative care to terminally ill patients. A significant number of patients near the end of life experience a great deal of pain and their physicians are often hesitant to aggressively treat that pain with controlled substances out of fear of increased regulatory scrutiny. Moreover, other physicians fear that should a patient expire during the administration of controlled substances to palliate the symptoms of terminally ill patients, their actions could be construed as physician-hastened death. Consequently, the Ashcroft Directive likely encouraged the under-medication of patients and chilled the provision of pain relief among the terminally ill.

Secondly, aside from interfering with pain relief, Ashcroft's Directive also interfered with Oregon's sovereign right to regulate the practice of medicine within its own borders. Although the principle of federalism has waxed and waned over time, each state in the Union is in principle a sovereign polity that retained the right to set public policy in numerous areas of public affairs notwithstanding affiliation with the United States of America. In fact, one of the areas within the purview of state policy setting concerns the regulation of medicine. Consequently, when Attorney General Ashcroft dictated from Washington, DC what constituted a legitimate medical practice in an American state, without the consent of the state or legitimate act of Congress, such actions offend the very notion of state sovereignty under American federalism.

Third, as an appointed executive branch official, the attorney general poses a greater threat to our liberty than do the frequently elected members of Congress. The power of the Executive Branch is considerable, and our Founding Fathers were fearful of vesting too many powers in the enforcement arm of our government. In fact, former United States Supreme Court Justice Robert Jackson once stated that the prosecutor, an executive branch official, has more control over our liberty "than any other person in America." But unlike Senator Orrin Hatch (R-UT) and Representative Henry Hyde (R-Ill.), who also made extra-legislative attempts to prohibit PAS, Attorney General Ashcroft is not directly responsible to the voters in a legislative district or state (and certainly not directly accountable to the citizens of Oregon). Further, unlike Senator Hatch and Representative Hyde, Attorney General Ashcroft has the ability to compel compliance vis-à-vis his edict regarding what constituted a legitimate medical practice. In fact, his decision involving medical practice was even more objectionable than the complaints lodged against managed care. Whereas patients and health care providers are often resentful of the intrusion of third parties into health care decisions, at least those decisions are being made on an individual basis by persons with appropriate medical backgrounds. However, under the Ashcroft Directive, health care decisions were not only being made by an un-elected official in Washington, DC with no medical training, this newest form of utilization review affected not one individual but rather the entire population of an American state.

Rightly or wrongly, Oregon voters have approved of a practice that provides another choice to competent, terminally ill adults in Oregon concerning how they will spend their remaining months or days of their lives. Despite the duly expressed will of the majority of Oregon voters, Attorney General Ashcroft has attempted to nullify the will of Oregon voters and interfere with the provision of palliative care to terminally ill patients in an effort to prohibit a practice that contravenes conservative morality policy preferences. Congress had earlier failed to pass laws prohibiting the use of controlled substances to hasten the death of terminally ill patients because, inter alia, they could not get a majority of our elected officials to vote for it. Although many are quick to criticize a do-nothing Congress, the necessity to gain a majority in both houses of Congress helps to keep us safe from the tyranny of both the majority and the minority. Attorney General Ashcroft, like anyone else, has a sacred and honored right to voice his individual opinion. Moreover, we have no doubt that Attorney General Ashcroft sincerely opposes the practice of physician-assisted suicide on religious and personal grounds. He is perfectly free to do so. However, it is one thing to voice one's opposition to a practice that has been legitimated in two public elections, and clearly another to compel others to subscribe to your beliefs with the force of the federal government at your command.

References

D. C. Nice, Washington State University, Department of Political Science, Pullman, WA (personal communication) (2001).

R.H. Jackson, "The Federal Prosecutor," Journal of the American Judicature Society, 24 (1940): 18-20, at 18.

Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or., 2002).

L.F. Wiley, "District Judge Upholds Oregon Assisted-suicide Law and Halts Prosecution of Doctors," Pain & The Law Website (visited April 18, 2002) http://www.painandthelaw.org/palliative/districtjudge_041702.php.

S.J. Ziegler and N.P. Lovrich, "Prohibiting Physician-Assisted Suicide at the Expense of Pain Relief," Pain & The Law Website (visited May 24, 2002) http://www.painandthelaw.org/mayday/ziegler_lovrich_100301.php