Demise of Death with Dignity?

By Melanie Rubinsky, J.D., LL.M. candidate

The Oregon Death with Dignity Act (Act) was a citizenís initiative first passed by Oregon voters in November 1994. Implementation was delayed by a legal injunction, but after proceedings that included a petition denied by the United States Supreme Court, the Ninth Circuit Court of Appeals lifted the injunction on October 27, 1997. In November 1997, a measure asking Oregon voters to repeal the Act was placed on the general ballot (Measure 51, authorized by Oregon House Bill 2954). Voters rejected this measure, retaining the Act. Since that time, 70 patients suffering from incurable disease have chosen to end their lives and their suffering. On February 21, 2001, the Oregon Health Division published its Year 2000 statistics, documenting the number of individuals availing themselves of Oregonís law. For a review of these statistics, see Oregon Health Division reports, www.ohd.hr.state.or.us/chs/pas/ors.htm.

The Act allows terminally ill Oregon residents to obtain and use prescriptions from their physicians for self-administered, lethal medications. The Act legalizes physician-assisted suicides but specifically prohibits euthanasia, which is committed when a physician or other person directly administers a medication to end anotherís life. The requirements a terminally ill patient must meet in order to comply with the Act are stringent. Both physicians and pharmacists must comply with the law by reporting all prescriptions for lethal medications to the Oregon Health Division. Physicians and patients who adhere to the requirements of the Act are protected from criminal prosecution. For a more detailed discussion of the Act, please see other Health Law Perspectives articles at http://www.law.uh.edu/healthlawperspectives in Death and Dying. Also see ORS §127.800 et seq.

Despite the State of Oregonís autonomous decision to allow physician assisted suicides under the guidelines set forth in the Act, it has now, once again, come under attack, this time by the federal government. On November 6, 2001, in a letter forwarded to Drug Enforcement Administration (DEA) chief, Asa Hutchinson, U.S. Attorney General John Ashcroft gave federal drug agents the authority to take action against physicians who assist terminally ill patients in dying. The decision would allow the suspension or revocation of drug licenses issued to physicians who participate in assisted suicide using federally controlled substances. The federal government has taken the position that assisted suicide is not a "legitimate medical purpose" for prescribing, dispensing or administering federally controlled substances and, therefore, is impermissible under the Controlled Substances Act. The federal government's decision to allow revocation or suspension of physician's drug licenses in cases of assisted suicide relied on a unanimous Supreme Court opinion issued in May 2001 that held there was no exception in federal drug laws for the medical use of marijuana to ease pain from cancer, AIDS and other illnesses. See U.S. v. Oakland Cannabis Buyersí Cooperative, 532 U.S. 483 (2001). The court did not change state laws allowing patients to use marijuana for medical reasons, but made the drug harder to obtain by denying patients the right to claim "medical necessity" as a basis for circumventing the Controlled Substances Act.

In response, Oregon lawmakers, physicians, and patients moved forward on November 7th with filing suit to keep federal agents from taking legal action against physicians who help terminally ill patients. Motions were filed in the United States District Court in Portland. The Office of the Attorney General for the State of Oregon stated that they were seeking to block the DEA from taking any action against specific Oregon physicians until the legality of the U.S. Department of Justice decision is resolved. In addition, the State of Oregon filed suit arguing that the federal government misinterpreted the Controlled Substance Act and that it is the stateís right, not the federal governmentís, to determine what is a legitimate medical practice. The lawsuit challenges the authority of the Attorney General to limit the practice of medicine in Oregon, claiming the DEA does not have jurisdiction over a state matter.

On November 8th, U.S. District Judge Robert Jones granted a temporary restraining order requested by Oregon Attorney General Hardy Myers, a doctor, a pharmacist, and three terminally ill patients, holding that "there is no showing that the United States would be irreparably impaired by a temporary stay of the [US] Attorney Generalís action." How Judge Jones ultimately decides this suit could turn on how close a connection he sees between the medical use of marijuana for certain illnesses and the use of prescription drugs to end the life of terminally ill patients.

The differences between the Oakland Cannabis suit and the legality of the Act are clear. The Supreme Court ruling was limited to marijuana, an illegal drug the DEA has determined has no medical value and whether the Controlled Substance Act contained a medical necessity exception. The drugs used for assisted suicides, typically barbiturates and morphine, are narcotics that physicians may legally prescribe for a variety of illnesses. The Oakland Cannabis case is about which drugs can be legally dispensed, while the Oregon case is about what medical condition legal drugs can be issued for, i.e., what is a legitimate medical practice. These issues are unrelated to each other. The dispute over Oregonís assisted suicide law depends on whether the Act assumes the traditional state role in regulating the practice of medicine. A multitude of cases exist supporting the idea that states have the authority to regulate the practice of medicine. The concept of "medical necessity" has always been left up to the individual states to define, not the federal government. For this reason, each state has its own board of medical control. Is federal drug law intended to replace the statesí authority to regulate the practice of medicine?

The United States Supreme Court in 1997 rejected arguments that the Constitution embodies a right to assistance in dying. However, the court cleared the way for Oregonís law to take effect by turning aside an appeal that had kept the measure tied up in Court. The Supreme Court acknowledged that this area was one for "earnest and profound" debate, leaving individual states able to choose to lawfully pass a ban on physician-assisted suicides; it did nothing to prohibit any other state from legalizing the practice according to its own laws. Four times in the past three years, Congress has rejected legislation that would have invalidated Oregonís law through prosecution of physicians who prescribe under its authority.

The federal government's position directs federal officials with no medical expertise to second-guess the decisions of physicians and will hinder efforts by physicians in Oregon to ease the suffering of their terminally ill patients. The result will be that far too many of the 550,000 patients who die each year of cancer will spend their final days in anguish and immeasurable pain.

02/15/02