By S.Van McCrary, Health Law & Policy Institute
The New York Times reports that it is unable to document a single case in which a person has used the five month-old law permitting physician-assisted suicide in Oregon (Mar. 15, 1998, p. 14). Opponents of the new law had suggested, during their campaign against it, that Oregon would "become a mecca for people who wanted medical assistance in ending their lives, a virtual suicide express . . . ." That the law has gone unused reportedly comes as a surprise to many Oregon officials, including representatives of the Oregon Health Division. In contrast, spokespersons for the Oregon Medical Association and the Oregon Nurses Association observed that there remains much confusion among health care providers about legal and ethical aspects of their potential roles in assisting patients to die.
This confusion is accompanied by fear. Immediately after the law became effective the U.S. Drug Enforcement Agency warned, in a letter solicited by Congressional opponents of the Oregon law, that physicians who prescribed drugs for suicide could risk revocation of their DEA permits to prescribe. Subsequent pressure from the Clinton Administration apparently has induced the DEA to cease its efforts to thwart implementation of the Oregon law. Nonetheless, according to Jim Kronenburg of the Oregon Medical Association, the DEA letter has "scared off" many doctors from writing what would otherwise be a legal prescription.
In light of the DEA letter, it is not surprising that physicians would be reluctant to assist a patient's death based on the Oregon law if there remained a threat of legal action from the federal law enforcement community.
Such threats may remain in the minds of many physicians long after the laws on which they were based have been modified. Research has indicated that physicians' perceptions of legal threats are as important as the actual enforcement of such threats. Thus, the DEA letter may have produced a chilling effect on Oregon physicians for an indefinite period of time.
Whether this is a good or bad outcome may depend on one's views regarding assisted suicide. However, it is arguably poor public policy to use such threats of federal legal action to induce fear in health care providers when Oregon law currently permits this particular practice. The U.S. Supreme Court, in Washington v. Glucksberg (117 S. Ct. 2258) and Vacco v. Quill (117 S. Ct. 2293), has expressed its willingness to allow states to experiment with regulation of assisted suicide and the states should be given latitude to do so until the Court speaks again on this issue.
Many physicians are already highly sensitized to the impact of law on their practices generally. To add fear and exacerbate confusion regarding possible federal sanctions for actions that are legal at the state level is a dangerous mix. The impact of legal threats on the minds of health care providers lingers. Such impact does not immediately disappear when and if laws are changed, and may never disappear completely. Further such threats, and the resulting fear and confusion, may have an unintended negative impact on the ability of patients to receive drugs for optimal pain relief near the end of life. Doctors who are confused and afraid of the legal implications of their actions will not be able to provide optimal care for dying patients.