Euthanasia supporters cheered on November 4 when
Oregon decided to keep its unprecedented law allowing physician-assisted
suicide. By a margin of 60% to 40%, Oregonians defeated a ballot measure
designed to repeal their "Death with Dignity Act" first approved
in 1994. The act has never taken effect due to a lawsuit; but in October
the U.S. Supreme Court allowed a federal appeals court to dismiss the suit.
With the new vote, doctors in Oregon were expected to begin giving terminally
ill patients lethal drugs with which to kill themselves.
But euthanasia advocates' celebration was short-lived. The day after the
vote, the U.S. Drug Enforcement Administration (DEA) said that a doctor
who prescribes lethal drugs to assist a suicide would violate the federal
Controlled Substances Act, notwithstanding Oregon's law.
The DEA policy is set forth in a November 5 letter from DEA Administrator
Thomas Constantine to Senator Orrin Hatch and Congressman Henry Hyde, chairmen
of the Senate and House Judiciary Committees. These congressional leaders
hailed the policy as a responsible expression of concern for the health
and safety of all Americans. But Governor John Kitzhaber and Senator Ron
Wyden of Oregon have attacked the DEA policy as an attack on state's rights
and urged U.S. Attorney General Janet Reno to rescind it.
To decide who has the stronger case we must understand something about federal
drug laws. While doctors receive their licenses to practice medicine from
state medical boards, they receive separate certification to prescribe controlled
substances, such as narcotics, from the federal DEA. Each time a doctor
orders morphine or another federally regulated drug from a manufacturer,
he or she must fill out a form in triplicate - - and one copy goes straight
to the local office of the DEA. Doctors must be prepared to explain to DEA
officials their use of these potentially dangerous drugs- - and they lose
their certification, and even risk federal criminal penalties, if they prescribe
such drugs for any but "legitimate medical purposes."
The question posed by Senator Hatch and Congressman Hyde to the DEA was
this: Can assisting a patient's suicide be a legitimate medical purpose
within the meaning of federal law?
While some Oregon officials may not like it, all three branches of the federal
government have already voiced a resounding"No" to this question.
This spring, Congress overwhelmingly approved an Assisted Suicide Funding
Restriction Act that forbids any federal agency or health program to treat
assisted suicide as a legitimate medical practice by funding it. Signing
this bill on April 30, President Clinton reaffirmed his longstanding opposition
to euthanasia and assisted suicide, adding that the new law would "allow
the Federal Government to speak with a clear voice in opposing these practices."And
in upholding legal bans on assisted suicide this summer, the Supreme Court
declared that such bans serve "unquestionably important and legitimate"
governmental interests - - including an interest in "protecting the
integrity and ethics of the medical profession."
It is easy to say that the meaning of "legitimate" medicine in
federal drug laws should vary according to what states may want - - easy,
but legally wrong. California found this out months ago, when voters approved
a ballot measure allowing doctors to prescribe marijuana for what they see
as medical purposes. The federal government replied that marijuana is still
classified by federal law as having no legitimate medical use - - and the
DEA has enforced that law, despite the absence of state penalties for providing
marijuana in some circumstances.
Whatever one may think of the medical debate on marijuana, the California
case illustrates the fact that federal drug penalties are independent of
state penalties. The state of Oregon may or may not have the power to remove
assisted suicide from the state criminal code under certain conditions -
- that raises unresolved constitutional questions of its own - - but it
certainly cannot rescind federal penalties under the Controlled Substances
Act.
Any federal official who wants to rescind or ignore those penalties would
have some serious explaining to do. Physicians are forbidden to misuse their
prescribing authority to provide addicts with the temporary oblivion of
drug-induced euphoria. Should they be able to misuse it to grant the permanent
oblivion of death? They face criminal charges when they give out drugs that
may risk or cause death accidentally. Should they go unpunished when they
give them out to cause death deliberately?
On reflection, Oregonians were naive to think they could turn the meaning
of medicine on its head without federal questions being raised. The Oregon
law allows doctors to place lethal drugs (and instructions for their lethal
use) in the hands of private citizens, who may take those drugs across state
lines to kill themselves or anyone else. While the law applies only to Oregon
"residents," even its supporters admit that residency remains
undefined. Mail-order pharmacies could even send lethal drugs through the
U.S. Postal Service under the new law.
John Donne wrote that no man is an island, that any person's death diminishes
us all. Oregon may find that in our nation, bound together as it is by travel,
communication, and law, no state is an island when it comes to issues of
life and death. We may have to decide as a nation whether to let our healers
become killers. That ball is in Janet Reno's court.
Richard Doerflinger is associate director for policy development at the
Secretariat for Pro-Life Activities, National Conference of Catholic Bishops
and a frequent contributor to NRL News.