X-Message-Number: 8749
Date: Sun, 09 Nov 1997 17:55:42 -0700
From: David Brandt-Erichsen <>
Subject: Oregon update
From the PORTLAND OREGONIAN
(Saturday Nov 8/97)
DEA DEEMS SUICIDE LAW ILLEGAL
Oregon doctors could lose their right to prescribe some drugs if they
assist in a suicide
Steve Suo and Erin Hoover of The Oregonian staff
The U.S. Drug Enforcement Administration has determined that
prescribing lethal medication to assist in a suicide violates
federal narcotics law - meaning Oregon doctors could lose their
right to prescribe some drugs if they aid in a suicide.
Thomas A. Constantine, DEA administrator, wrote the chairmen of the
U.S. House and Senate judiciary committees in a letter dated
Wednesday that "delivering, dispensing or prescribing a controlled
substance with the intent of assisting a suicide" is not a
"legitimate medical purpose" allowed by law.
The letter responded to an inquiry from Sen. Orrin Hatch, R-Utah,
and Rep. Henry J. Hyde, R-Ill. They told Constantine earlier this
year that Congress "would have a serious concern" if the agency
allowed doctors to prescribe drugs for suicides.
It remained unclear Friday how far the Clinton administration would
go in backing up Constantine's interpretation of the law. The
Oregonian obtained a copy of his letter only a day after the DEA
acknowledged to the newspaper that the state's physician-assisted
suicide law was under review.
Administration officials and assisted-suicide supporters played
down the possibility of sanctions against doctors.
"The Justice Department is continuing to review this, and no
conclusions have been reached," spokesman Gregory King said. The
Drug Enforcement Administration is an arm of the Justice
Department.
But an administrator for the DEA's Portland subdivision, which
received Constantine's letter Friday, said his office would start
proceedings against doctors who clearly prescribed drugs to aid in
suicide.
"Assuming that the medical examiner or whatever ruled this death to
be suicide, and assuming someone . . . dropped it in our lap, I
don't think we would have any choice but to proceed," said Arnold
Lochner, group supervisor of the Portland DEA's diversion program.
"But are we going to go scouring the medical records? Probably
not."
News about the agency's involvement exploded into political clashes
from Oregon to Capitol Hill. Rep. Darlene Hooley and Sen. Ron
Wyden, both Oregon Democrats, sent letters to Attorney General
Janet Reno saying there is no need for the administration to
intervene.
And in a tense confrontation on a Capitol elevator,cq. Rep. Peter
DeFazio, D-Ore., taunted Hyde for trying to bring federal law to
bear on an issue Oregon voters had settled Tuesday, when they
overwhelmingly defeated a measure to repeal assisted suicide.
"He won't do anything - Henry believes in states' rights," DeFazio
said.
"When they're right," Hyde fired back.
"Have you ever seen someone die in horrible, horrible pain?"
DeFazio said.
Yes, Hyde said: his wife.
DeFazio said he had seen his father die painfully and that no one
should have to go through such an experience. When he started to
describe how horrible it is when someone has trouble breathing,
Hyde yelled, "Don't tell me how it is."
Sen. Gordon Smith, R-Ore., was the only member of the Oregon
delegation who applauded the DEA's finding.
"I'm not a supporter of assisted suicide," Smith said. "I respect
the vote of the people, but I also understand that this is a law
that has consequences far beyond the border of Oregon, and it may
contravene federal law."
The law, approved by voters as Measure 16 in 1994, allows mentally
competent, terminally ill patients to request a lethal
prescription.
DEA controls prescriptions
In a July 25cq. letter to the DEA, Hyde and Hatch argued that the
federal Controlled Substances Act prohibits doctors from
prescribing drugs except for a legitimate medical purpose.
Although physicians are licensed to practice medicine by states,
the agency registers doctors to prescribe controlled substances,
including barbiturates and most other drugs that could be used in
physician-assisted suicide.
The ability to prescribe controlled substances is so crucial to
many doctors that having their DEA registration revoked could put
them out of business. They would be unable to prescribe such common
painkillers such as Tylenol with codeine, for example.
The National Conference of Catholic Bishops has pushed the view
that Oregon's law conflicts with federal drug regulations. The
conference raised the issue in testifying against assisted suicide
before Hyde's committee in 1996 and before another committee in
March.
On June 26, the U.S. Supreme Court ruled there is no constitutional
right to suicide and left it to the states to debate the issue.
Shortly afterward, the organization asked Hyde to look into whether
Oregon's law could be in conflict with federal drug law.
Hyde contacted Hatch, said Richard Doerflinger of the bishops'
conference.
"We've been trying to get them interested in it for some time,"
Doerflinger said. "I think the prospect that the Oregon law might
be allowed to kick back into effect made it more of a timely
issue."
Doerflinger said the issue was a legitimate one for the federal
government to be taking up.
"I found it interesting that no one was noticing that Oregon
citizens are also citizens of the United States," he said. "There
are lots of implications for other states, and federal policy that
has to be addressed somehow."
The American Medical Association is on record as opposing assisted
suicide. But a spokesman said Friday the professional association
hadn't asked congressional leaders to intervene in Oregon and has
not taken a position on DEA inolvement.
Suicide supporters skeptical
Supporters of Oregon's law vowed to sue the DEA if the agency moves
against doctors. But they remained skeptical the administration
would do so.
In California this year, the agency threatened to act against
doctors who recommended medicinal marijuana to patients under a
voter-approved initiative. A group of doctors sued, and in April
they won a temporary court injunction blocking the DEA from
threatening or sanctioning doctors.
Eli Stutsman, a laywer for Oregon Right to Die, said he is
confident Oregon doctors can write lethal prescriptions without
violating federal drug law. The fact that Oregon voters approved
the assisted suicide makes it a legitimate medical purpose under
the Controlled Substances Act, he said.
"I'm not aware of any hard information from the DEA that they would
sanction doctors who follow the Death With Dignity Law," said Dr.
Rick Bayer, a Portland phyisican and a supporter of doctor-assisted
suicide. However, "We're certainly in favor of clarification," he
said.
Bill Wyatt, chief of staff to Gov. John Kitzhaber, said the
governor has no indication that the White House has taken a
position.
He said Kitzhaber, a doctor, thinks it's up to Oregon voters "to
determine what appropriate medical practice is, and they have done
so."
"Short of specific legal prohibitions, we expect Oregon doctors
should be able to operate under Oregon law without federal
intervention, and we believe that will happen," Wyatt said.
White House noncommittal
Administration officials were noncommittal. White House spokesman
Mike McCurry reiterated President Clinton's opposition to
doctor-assisted suicide but said he "would want to check" with
Clinton about his stance on Oregon's law.
If the federal government decides to intervene, it could quickly
end up in a legal thicket.
"This is very much a states' rights issue, balanced against the
power that the national government has operated under for a long
time - regulating interstate transportation," said Richard Shugrue,
a professor at Creighton University School of Law in Omaha, Neb.
Shugrue said the debate might go like this: Washington would say
there's a national interest in controlling pharmaceuticals. States
would say they have a right to allow prescribing lethal drugs under
their police powers.
"It's a classic battle of a state's right to control its destiny
and the federal government's right to have uniform code of
conduct," Shugrue said.
Nena Baker, Jim Barnett, Jeff Mapes and Gail Kinsey Hill of The
Oregonian staff contributed to this report.
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