No Federal Drugs to Assist Suicide, Ashcroft Rules

By NRLC Dept. of Medical Ethics

The Bush Administration moved decisively to end federal support for euthanasia November 6 when Attorney General John Ashcroft announced that federally controlled drugs can no longer be used to assist suicide, a practice that had been permitted by the Clinton-Gore Administration in the state of Oregon.

The next day Oregon, joined by some doctors who have offered lethal prescriptions and other euthanasia proponents, filed suit in federal court in an effort to require that federally controlled drugs remain available to kill terminally ill patients.

However, public support for the position taken by the Bush Administration is strong. By 67% to 29%, Americans say federal law should not allow the use of federally controlled narcotics and other dangerous drugs for the purpose of assisted suicide and euthanasia. (July 6-9, 2001, Wirthlin Worldwide national poll; 3.1% margin of error.)

The Bush Administration decision was carefully crafted to ensure that it will foster, and not deter, the willingness of doctors to prescribe such drugs when needed to control pain (see sidebar).

In a memorandum to Drug Enforcement Administration (DEA) chief Asa Hutchinson, Ashcroft wrote, "Pain management, rather than assisted suicide, has long been recognized as a legitimate medical purpose justifying physicians' dispensing of controlled substances." The attorney general added, "There are important medical, ethical and legal distinctions between intentionally causing a patient's death and providing sufficient dosages of pain medication necessary to eliminate or alleviate pain."

Ashcroft's opinion reverses a 1998 administrative decision by Clinton-Gore Attorney General Janet Reno and effectively reinstates the original determination by the DEA. On November 5, 1997, then-DEA Administrator Thomas Constantine had announced that since assisting suicide is not "a legitimate medical purpose . . . prescribing a controlled substance with the intent of assisting a suicide" violates the federal Controlled Substances Act.

Oregon is the only state in the nation whose law explicitly authorizes doctor-assisted suicide. Initially enacted by a referendum in 1994, the law went into effect in November 1997 after a series of court battles.

Since then, over 70 people have been killed by lethal prescriptions, according to official reports. All their lives were apparently ended by federally controlled drugs, most commonly secobarbital.

Controlled Substances Act

Under the federal Controlled Substances Act and its implementing regulations, the use and prescription of designated 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 then-chairmen of the Senate and House Judiciary Committees, Senator Orrin Hatch (R-Utah) and Representative Henry Hyde (R-Il.) respectively, wrote Constantine, who, as head of the DEA, was charged with enforcing federal drug control laws, suggesting that killing patients is not a "legitimate medical purpose." On November 5, 1997, Constantine agreed. He stated that prescribing federally controlled drugs for assisted suicide or euthanasia could result in revoking a doctor's registration.

However, on June 5, 1998, Clinton-Gore Administration Attorney General Janet Reno partially overturned Constantine's ruling. She said that doctors' DEA registrations might indeed be revoked for using controlled substances to assist suicide, except to the extent authorized by state law. That meant that while DEA registrations would be subject to revocation for prescribing federally controlled drugs to assist suicide in 49 states, the federal government would permit the use of federally controlled substances to kill patients in Oregon.

A bill to overturn the Reno ruling, supported by a number of medical organizations, including the National Hospice and Palliative Care Organization, the American Medical Association, the American Academy of Pain Management, and the American Society of Anesthesiologists, passed the House of Representatives in October 1999. Similar legislation was favorably reported by the Senate Judiciary Committee. However, a filibuster threat by Oregon Senator Ron Wyden (D) prevented it from coming to a Senate floor vote.

A 24-page opinion from the Justice Department's Office of Legal Counsel released with the attorney general's directive made the case that physician-assisted suicide serves no legitimate medical purpose.

Noting that "physician-assisted suicide has been condemned by the overwhelming majority of the states and by the leading professional associations of medical and nursing practitioners," the opinion said, "assisting in suicide should not, in our view, be considered a 'medical' practice solely because it is undertaken by a physician.... [I]t would follow that if a State authorized physicians to prescribe controlled substances to addicts in order to enable them to maintain their customary use and so avoid discomfort, the Federal Government would be unable ... to revoke their registrations...."

"We commend Attorney General Ashcroft and the Bush Administration for cutting off this outrageous misuse of drugs - - drugs that should be used to cure and to relieve pain, not to kill," said Burke Balch, J.D., director of NRLC's Department of Medical Ethics. "While we know that euthanasia advocates are mounting a challenge in the courts, we are confident that the Supreme Court will ultimately conclude that the attorney general has properly interpreted federal law, which clearly rejects assisting suicide and euthanasia."

Pain Relief and Enforcement of the AG Ruling

How will the Drug Enforcement Administration (DEA) enforce Attorney General John Ashcroft's ruling that federally controlled drugs may not be prescribed to assist suicide?

Oregon's law authorizing doctors to assist suicides already requires them to provide written reports to Oregon authorities showing both that they intend to assist suicide and what drugs they use. By subpoenaing these reports from the Oregon authorities, the DEA will be able to tell at a glance whether federally controlled drugs have been misused to kill patients. Contrary to accusations by critics, this means the DEA will not have to investigate doctors' prescribing practices or second- guess or challenge their prescriptions of drugs to relieve pain.

What effect will the attorney general's ruling have outside Oregon?

Consider the June 5, 1998, ruling by former Attorney General Janet Reno that Ashcroft's ruling reversed.

Reno allowed the use of federally controlled drugs to kill patients whose suicides were assisted in accordance with Oregon state law, but indicated the DEA might nevertheless revoke the registration of any doctor who uses federally controlled substances to assist suicide "in a state that has not authorized the practice under any conditions." In other words, in 49 states, the policy before and after Attorney General Ashcroft's ruling is the same.