Pro-Euthanasia Groups Win Temporary Stay On Decision Banning Use of Federally Controlled Drugs for Assisted Suicide

By Jenny Nolan, NRLC Dept. of Medical Ethics

Reacting to a suit filed by the pro-euthanasia group Compassion in Dying, the state of Oregon, and others, Federal District Judge Robert Jones has temporarily ordered Attorney General John Ashcroft not to enforce the Bush Administration's November 6 order that federally controlled drugs may not be used to assist in suicides.

The effect of the November 20 decision is that lethal prescriptions of federally controlled drugs will continue in Oregon, at least for now. The court's restraining order applies pending the judge's final ruling on the merits. Judge Jones has allotted about five months for all sides to prepare briefs and for a hearing to be conducted.

The district court's ultimate decision is sure to be appealed by the losing party to the federal Ninth Circuit Court of Appeals and thereafter to the United States Supreme Court.

While Compassion in Dying used the courts to force continued use of federally controlled drugs in assisted suicide, another national pro-euthanasia group, the Hemlock Society, launched a national publicity campaign to force Ashcroft to reverse his decision.

The Hemlock Society offensive began November 20 with letters to President George W. Bush; Senator Bill Frist, who is also a physician; and the chairmen of the House and Senate Judiciary Committees. The letters call for congressional hearings on Ashcroft's decision, which Hemlock asserts means that "hopelessly ill people will suffer needlessly."

Hemlock ran quarter-page ads in the New York Times on November 23 and 25, but the official public debut of its reversal effort came November 27 at a Washington, D.C. press conference.

Faye Girsh, Hemlock's president, was on hand with other leaders of the group, calling for public support through an online petition on Hemlock's web site.

Fred Richardson, chair of the Hemlock Society board, accused Ashcroft of "stopping the democratic process in its tracks," interfering in the doctor-patient relationship, and threatening quality pain management for patients who depend on controlled substances for relief.

Hemlock claimed to be "blindsided" by the attorney general's decision.

However, President Bush himself had publicly opposed the use of federally controlled drugs to assist suicide in Oregon during a campaign appearance in that state last year.

The conflict over Ashcroft's ruling centers on how to apply the federal Controlled Substances Act (CSA) and its implementing regulations in Oregon, a state that has legalized physician- assisted suicide.

For the sake of public safety, the CSA placed the responsibility of controlling the most dangerous drugs and narcotics with the federal government. Some of these substances are outlawed entirely, while others, like powerful painkillers, may be used only in restricted circumstances.

State-licensed physicians who wish to prescribe these drugs must apply to the federal government for a special registration from the Drug Enforcement Administration (DEA). The doctor must use the registration to prescribe federally controlled drugs only for "legitimate medical purposes" that fall within the course of " usual professional practice."

In 1997, after reviewing the positions of major medical organizations, medical literature, and common practice, then-DEA Administrator Thomas Constantine ruled that assisting suicide is not a "legitimate medical purpose." However, in June, 1998 Clinton Administration Attorney General Janet Reno partially overruled the DEA.

While their DEA registrations could still be revoked if doctors write lethal prescriptions for federally controlled drugs, Reno indicated, she carved out an exception: when the doctor acts in accordance with state law.

To date, only one U.S. jurisdiction, the state of Oregon, has specifically authorized assisting suicide. All publicly reported cases in that state have involved federally controlled drugs.

This changed on November 6, 2001. In a memo to DEA Administrator Asa Hutchinson, Attorney General Ashcroft reversed Reno, effectively restoring the original DEA view that a uniform federal law against certain conduct is not nullified by a state which fails to penalize that conduct under its own law.

At the Hemlock press conference, Richardson charged that Ashcroft's ruling threatens good pain management in every state. Hemlock is working hard to convince doctors that if they prescribe the high doses of federally controlled painkilling drugs sometimes necessary to relieve suffering, they may be investigated by DEA agents snooping to discover whether they might in fact be surreptitiously assisting suicide.

However, Ashcroft has worked even harder to demonstrate that this is patently not true. In his memo to Hutchinson he clearly stated that there should be no increased investigation of doctors' prescribing practices.

Under Oregon state law, doctors who write prescriptions to assist suicide must report the exact drugs used to state authorities. The DEA will subpoena those reports and will immediately be able to tell from them whether federally controlled drugs have been illegally used.

Ashcroft emphasized that as a consequence of the new directive, other than reviewing these reports, the DEA will engage in no new investigative activity.

The attorney general also reiterated this in a series of letters to leading medical organizations around the country. He stated flatly, "On one point ... there should be complete agreement: no effort to prevent the use of controlled substances to assist suicide should operate in any manner to deter physicians from prescribing controlled substances to alleviate pain ... even when high doses of pain- killing drugs are necessary and even when dosages needed to control pain may increase the risk of death."The letters closed with a request from Ashcroft for the medical organizations to inform and reassure their membership that there would be "no increase of DEA scrutiny of physicians' prescription of controlled substances to control pain."

David N. O'Steen, Ph.D., NRLC executive director, condemned the actions of the Hemlock society.

"The Hemlock Society's attempt to paint the Bush Administration's refusal to facilitate euthanasia with federally controlled drugs as a threat to pain management is wholly unfounded and profoundly irresponsible," he said. "By falsely stating that the DEA will investigate pain prescribing practices, Hemlock risks frightening doctors themselves."O'Steen warned that this "massive effort being mounted by the pro- death forces should serve as a wake-up call to those concerned about the lives of the vulnerable. We must mobilize to counter them."