Saying No to Assisted Suicide

The Attorney General Takes on Oregon.

When Oregon voters legalized assisted suicide in 1994, state regulators had a problem. They wanted to authorize doctors to prescribe barbiturates as killing agents. But the federal government regulates the use of these drugs under the Controlled Substances Act, and federal law did not permit their use to intentionally kill.

Ordinarily, that would have been that. The feds, not the states, have the final say about what would and would not be a proper use of drugs governed by the Controlled Substances Act. Unfortunately, Oregon's assisted suicide law went into effect during the Clinton years, when principle and the rule of law were rarely allowed to impede political expedience. Thus, it was hardly surprising when former Attorney General Janet Reno declared that she would not enforce federal law against Oregon's doctors who assisted patient suicides, thereby permitting a state to nullify the federal proscription against using controlled substances to kill.
Proponents of assisted suicide were thrilled. Their Oregon beachhead secure, they expected to spread their dark agenda nationwide. Instead, they have been turned back by a potent alliance of liberal disability rights activists, pro-lifers, members of the hospice movement, medical professionals, and advocates for the poor and minorities. Only seven years after the Oregon law passed, the landscape has dramatically changed: Jack Kevorkian is in prison for murder; initiatives attempting to legalize assisted suicide failed in Michigan in 1998 by 71-29 percent and in Maine last year by 51-49 percent; and the U.S. Supreme Court, followed by Florida and Alaska high courts, all ruled that there is no constitutional right to assisted suicide.

And now, assisted suicide in Oregon has taken a body blow. Last Wednesday, Attorney General John Ashcroft issued a memorandum to Asa Hutchinson, the new head of the Drug Enforcement Administration, (DEA), reversing Reno's decision. Oregon regulations will no longer override the Controlled Substances Act. "Assisting suicide is not a 'legitimate medical purpose'" under the meaning of that act, Ashcroft stated, and doctors who assist suicides act "inconsistently with the public interest." Accordingly, even though assisted suicide remains legal in Oregon, the DEA will now be authorized to revoke the federal prescribing license of any doctor who uses controlled substances lethally rather than medically.

Predictably, Oregon has sued, its politicians bellowing that their "state's rights" have been violated. But this is nonsense. Ashcroft based his decision on the recent 8-0 Supreme Court decision in United States v. Oakland Cannabis Buyers' Cooper ative, which ruled that while California was free to legalize medical marijuana all it wanted, the state's decision did not prevent the federal government from enforcing federal law proscribing the use of marijuana for any purpose.

Not surprisingly, a federal judge has temporarily restrained implementation of Ashcroft's decision, questioning why the attorney general waited months before changing Justice Department policy. But it is hard to see how any court can prevent Ashcroft from enforcing federal law unless it openly flouts the Supreme Court ruling in Cannabis Buyer's Club.

Of course, this is the Ninth Circuit, the most reversed court in the country, so the road is likely to be bumpy. But the Supreme Court sits at the end of that road, and thus, it is probably only a matter of time before the Controlled Substances Act is enforced uniformly in all 50 states.

Oregon euthanasia activists warn that Ashcroft's memo will create a "chilling effect" for doctors who wish to aggressively treat pain. But this is baseless fear-mongering. Ashcroft has already written to the president of the Oregon Medical Association assuring him that Oregon doctors "have no reason to fear" that prescribing "controlled substances to control pain will lead to increased scrutiny by the DEA, even when high doses of painkilling drugs are necessary." Moreover, states that have outlawed assisted suicide, while at the same time making it clear that aggressive treatment of pain is a proper medical act, have seen tremendous per capita increases in the prescription of morphine to treat pain. For example, in 1996 Rhode Island outlawed assisted suicide. Since then, per capita morphine use has increased 164 percent. Michigan's similar ban resulted in increased morphine use of 20 percent since 1998. Similarly, Louisiana banned assisted suicide in 1995 and has seen a 26 percent increase in per capita morphine use.

Any lingering worries about chilling effects could be easily thawed by passing the Pain Relief Promotion Act, legislation that would explicitly make aggressive pain control a legitimate medical purpose under the Controlled Substances Act. Unfortunately, passage of this important bill was thwarted last year by Senator Ron Wyden, an Oregon Democrat who feared the pain relief legislation would do what Ashcroft has just done-- reassert a federal penalty for doctors who use controlled substances to engage in assisted suicide. Wyden saw to it that the legislative clock ran out on the pain relief act.

Now that Ashcroft has properly restored federal standards in the use of controlled substances, there is no further excuse to thwart passage of the Pain Relief Promotion Act. If Wyden and the other backers of Oregon's assisted suicide regime really care about suffering patients, this time they won't stand in the way.

Wesley J. Smith is the author of CULTURE OF DEATH: THE ASSAULT ON MEDICAL ETHICS IN AMERICA. This column first appeared in the Weekly Standard and is reprinted here with permission.