Challenges Ahead

Euthanasia

OUTCOME HINGES ON 60 U.S. SENATORS

By Burke J. Balch, J.D., Director, NRLC Department of Medical Ethics

Will federally controlled drugs continue to be used to kill patients through assisted suicide?

That is the issue the United States Senate is likely to decide early this year when it votes on whether to end an expected filibuster of the Pain Relief Promotion Act. This crucial legislation passed by a bipartisan majority in the House of Representatives 271 to 156 on October 27.

All of the 15 officially reported deaths due to physician-assisted suicide under Oregon's euthanasia law in 1998 (the only year for which statistics are now available) were caused by prescriptions for federally controlled substances.

While fostering appropriate pain relief and palliative care as a positive alternative to assisting suicide and euthanasia, the bill would ensure that narcotics and other dangerous drugs regulated as "federally controlled substances" may not be used to kill patients, even in a state such as Oregon where its use in that manner is permitted by state law.

Under federal law and regulations, the use and prescription of certain narcotics and other dangerous drugs is generally prohibited unless a doctor with a special federal "registration" to prescribe them does so for a "legitimate medical purpose."

On July 29, 1997, the chairmen of the Senate and House Judiciary Committees, Senator Orrin Hatch (R-Utah) and Representative Henry Hyde (R-Il.), wrote the head of the Drug Enforcement Adminis-tration (DEA), who is charged with enforcing federal drug control laws, suggesting that killing patients is not a "legitimate medical purpose." On November 5, 1997, DEA Administrator Thomas Constantine agreed, stating that prescribing federally controlled drugs for assisted suicide or euthanasia could result in revoking a doctor's registration.

However, on June 5, 1998, Attorney General Janet Reno partially overturned Constantine's ruling. She said that doctors' DEA registrations might be revoked for using controlled substances to assist suicide, except to the extent authorized by state law. That means that at present DEA registrations are subject to revocation for assisting suicide in 49 states.

Even in Oregon, the DEA can revoke doctors' registrations if they prescribe controlled substances to assist suicide when patients don't meet the Oregon definition of terminal illness or if doctors fail to follow the procedures for assisting a suicide required by Oregon law.

But Reno said that the federal government would regard the use of controlled substances to kill patients in a manner legal under the law of Oregon or any other state as a "legitimate medical purpose."

To overturn the Reno ruling, on June 9, 1998, Representative Hyde and Senator Don Nickles (R-Ok.) introduced the Lethal Drug Abuse Prevention Act. Although it was passed out of the Judiciary Committees in both houses of Congress, it never came to a floor vote, largely because of opposition from the National Hospice Organization, the American Medical Association (AMA), and other medical groups, who charged it would chill pain relief.

After extensive negotiations, on June 23, 1999, a thoroughly rewritten bill entitled the Pain Relief Promotion Act was introduced. It was endorsed by key organizations that had led the attack on the 1998 bill, including the National Hospice Organization, the AMA, the American Academy of Pain Management, and the American Society of Anesthesiolo-gists. (On December 8, 1999, the AMA House of Delegates rejected an effort to reverse the AMA's support of the bill, although it called for minor wording changes.)

It was this bill that was passed by a strong bipartisan majority of the House of Representatives on October 27, 1999. The House-passed bill was referred to the Senate Judiciary Committee, chaired by Senator Hatch.

When the Senate reconvenes January 24, 2000, the House-passed bill, H.R. 2260, will first have to be considered by the Judiciary Committee. (The companion Senate measure, S. 1272, which now has 35 sponsors and co-sponsors, was referred to the Senate Health, Education, Labor, and Pensions Committee, which conceivably could also vote out that measure.)

If the Pain Relief Promotion Act is voted out of Senate committee, it will then face its most challenging test. It is certain to be subjected to a filibuster, in which opposing

senators debate endlessly to prevent a vote. Only if 60 of the 100 senators vote for "cloture" can debate be cut off and the bill thereafter be passed.

President Clinton has not publicly announced whether he would sign the Pain Relief Promotion Act if it reached his desk. Although the Justice Department has opposed the bill's overturning of Attorney General Reno's position, the White House has not issued a veto threat, and the President is on record as opposing assisting suicide.

Passage of the Pain Relief Promotion Act is critical to protecting the lives of people with disabilities.

While the image of terminally ill patients in intractable pain generates the greatest sympathy for legalizing assisted suicide among the general public, there are numerous indications that it is in fact resorted to, because of fear of disability and its most ardent advocates desire its legalization, primarily and because of a desire to eliminate those with disabilities. This is partly because of a genuine, if perverted, belief that those with severe disabilities are in fact better off dead, but also because of the strong view that those with disabilities create an unacceptable "burden" on society.

Of the 15 officially reported deaths in the first year of legalized assisted suicide in Oregon, none sought it because of present pain and only one was even influenced by the prospect of future pain; rather, those who sought and used legal lethal drugs were predominately afraid of what they saw as a loss of autonomy associated with the anticipated disabilities as their diseases progressed.

Compassion in Dying is a pro-euthanasia organization that has for some years assisted suicides in Washington state (although assisting suicide remains illegal in that jurisdiction) and has been the principal coordinator of legalized assisted suicides in Oregon. Its executive director, George Eighmey, has said, "The overwhelming majority of our patients who have a sustained desire and will to end their life do so because of fear of loss of autonomy, and of the indignities associated with losing control over bodily function."

The other major pro-euthanasia organization in the United States is the Hemlock Society. In a book published in 1998, its founder, Derek Humphry, wrote of the use of assisted suicide as "one measure of cost containment."

Speaking of people with disabilities, he wrote, "People with chronic conditions account for a disproportionately large share of health care use, both services and supplies." In light of all this, he asked, "Is there a duty to die--a responsibility within the family unit--that should remain voluntary but expected nevertheless?" Humphry asserted that "economics, not the quest for broadened individual liberties or increased autonomy, will drive assisted suicide to the plateau of acceptable practice."

The focus on people with disabilities may also be seen abroad. In the Netherlands, children born with disabilities such as Down syndrome and spina bifida are regularly and legally killed. In Belgium, the newly installed ruling coalition has proposed legislation legalizing assisting suicide that expressly encompasses those with disabilities who have no terminal illness. It even provides for advance directives to authorize one's killing if in the future one becomes mentally disabled.

In New Hampshire, the state Senate--in an action scheduled to take place after this paper goes to press but before it reaches readers--will vote on a measure similar to the proposal in Belgium. It would legalize assisting suicide for those regarded as incurable without any time period within which death is expected, which means that it would apply to many people with permanent disabilities.

The possibility of near-term legalization also exists: in Alaska, where the state's Supreme Court is slated to hear a case contending that the state constitution mandates legal assisted suicide; in California, whose Assembly is to vote on a legalization bill by the end of January; in Maine, where a referendum on a legalization bill will be held in November 2000; and in Montana, whose Supreme Court has strongly suggested that it will hold assisted suicide to be a right under the state constitution.

Whether this trend develops as it threatens to do, or whether it is checked, may in large measure rest on whether or not grassroots mobilization helps create the constituent pressure necessary to secure 60 U.S. Senate votes for the Pain Relief Promotion Act in early 2000.