Update on Oregonís Death with Dignity Act:
Will it Last Under the New Administration?

By Timothy T. Carter R.N., J.D. Candidate 2002

The Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800 to § 127.897, approved by Oregon citizens in October 1997, re-ignited the debate over physician-assisted suicide. The only one of its kind in the nation, the statute allows terminally ill patients who choose to end their lives to do so with the assistance of a physician. To date seventy terminally ill patients have taken advantage of the Oregon statute. In the last year alone, twenty-seven terminally ill patients used the Death with Dignity Act to end their lives.

Contrary to popular belief the statute does not allow physicians to give lethal injections to terminally ill patients. However, the state statute does allow physicians to prescribe the oral medication which qualified terminally ill patients ingest to end their life. The statute has procedural safe guards that requires a patient to have six or less months to live, determined by two physicians, a treating physician and a consulting physician. Also the patient should be mentally competent and request the right to die on two occasions, once orally and another in writing in the presence of a non-family witness.

The national attention gained by the statute has transformed it into a highly controversial legal and political issue placing substantial pressure on both the past and present presidential administrations. While President Bill Clinton was in office, opponents of the statute attempted to persuade the Clinton Administration that the federal government had authority to regulate the Oregon statute because the medications prescribed are federally controlled substances. President Clinton did not support this argument. Furthermore, in 1998, Attorney General Janet Reno ruled that states have the authority to determine what is considered a legitimate medical use for federally controlled substances. See http://house.gov/judiciary/attygen.htm.

In addition to pressuring the Clinton Administration, opponents of the statute have made legislative attempts to limit the statute's effectiveness. Attempts in both the 105th and 106th congressional sessions to do so were unsuccessful. One such attempt by the legislature was the Pain Promotion Act which prohibited the prescription of federally controlled substances that are used to end a terminally ill patientís life. H.R. Rep. No. 106-378 (1998).

Presently, opponents of the statute are making a strong push to pressure the Bush Administration to ban physiciansí ability to prescribe controlled substances to terminally ill patients who choose to end their lives. Judy Holland, Ashcroft pressed to prevent Physician Assisted Suicides, Times Union, Mar. 18, 2001 WL 6296950. Although unsuccessful in the same attempt with the Clinton Administration, opponents of the statute are banking that the current administration will have a different view on the issue than its predecessor. There is no clear indication of the Bush Administration's stance. President George W. Bush stated during his campaign that he would have supported legislation to revoke a physicianís license for prescribing federal controlled substances to terminally ill patients who choose to end their lives. Keep Federal Hands Off State Assisted Suicide Law, Wis. St. J., Mar. 4, 2001 WL 5881194. However, President Bush also stated that he is a strong advocate for statesí rights, which in this instance Oregon is exercising with this Death with Dignity Act. Wis. St. J., Mar. 4, 2001 WL 5881194. At this particular juncture, the Bush Administration has not taken any action addressing the Oregon statute.

The most likely avenue for an action from the Bush Administration addressing the statute would require the administration to reverse former Attorney General Janet Renoís 1998 ruling. However, given the administrationís strong position advocating states rights, they will be reluctant to employ such a drastic measure.

In contrast, the Bush Administration may support legislation banning the use of federally controlled drugs used to assist the terminally ill in ending their lives only if it passes in both the House and the Senate. Because legislation of this type has traditionally not faired well in Congress, it seems that the Oregon Death with Dignity Act may survive another administration.

Whether the Death with Dignity Act will survive the Bush Administration is not known. What is known is that the Bush Administration is receiving the same pressure that faced the Clinton Administration, to use a federal authority to render the Death with Dignity Act ineffective. Only time will tell us whether the statute survives another administration.