X-Message-Number: 9051 Date: Sun, 25 Jan 1998 09:17:44 -0700 From: David Brandt-Erichsen <> Subject: Oregon update The following article was published in the OREGONIAN (January 24, 1998; page n/a) ----------------------------------------------------------------------- DEA POLICY ON SUICIDE LAW IN DOUBT A preliminary review by the Justice Department would clear doctors to participate By Jim Barnett, Dave Hogan, and Ashbel S. Green of The Oregonian staff An internal review team from the U.S. Department of Justice has concluded that federal law does not prohibit doctors from carrying out Oregon's assisted suicide law, Sen. Ron Wyden, D-Ore., said Friday. The Oregon law has been under a legal cloud since November, when U.S. Attorney General Janet Reno called for the review. Reno has not made a final decision, but Wyden said he's hopeful she will accept the team's conclusion. "I think the key thing is that the attorney general told me personally this call was going to be based on legal grounds," Wyden said. "The reason this development is important is that it goes right to the heart of how she said the decision was going to be made." Dispute about the intent and reach of federal law was sparked by Thomas A. Constantine, head of the Drug Enforcement Administration. Constantine thinks the Controlled Substances Act prohibits doctors from writing lethal prescriptions. In a Nov. 5 letter to Rep. Henry Hyde, R-Ill., chairman of the House Judiciary Committee, Constantine outlined his interpretation that doctors who assist the suicide of a terminally ill patient should lose their prescribing privileges -- a threat that would render the Oregon law useless. But Constantine sent the letter without telling Reno. Embarrassed, Reno referred the issue to an internal review team to determine whether Constantine's interpretation of the Controlled Substances Act was accurate. The Justice Department confirmed this week that a preliminary decision had been made by the internal team, headed by Jonathan D. Schwartz, counsel to Deputy Attorney General Eric Holder Jr. A spokesman declined to say what the decision was. A final decision will not be made until other members of the Justice Department -- including the Civil Division, the Solicitor General's office and the DEA -- are given a chance to comment. "Some components (of the Justice Department) have provided their comments, but other components have not had an opportunity to provide their views," spokesman Gregory King said. "All I can say is, the review has not been completed, and it's premature to speculate on what the results will be." However, state officials, including Gov. John Kitzhaber, are proceeding under the assumption that Oregon's assisted suicide law will go forward. Neither the attorney general's office, which is responsible for defending the law, nor the governor has been contacted officially about any decision on doctor-assisted suicide, said Kristen Grainger, a spokeswoman for Attorney General Hardy Myers. But "if that's the finding," Grainger said, "then that's great. It means the arguments of the state prevailed." Kitzhaber called the preliminary conclusion "a victory for the 60 percent of Oregonians who wanted this law." "It's what we were hoping to hear, that Oregon would be able to go ahead and implement its own laws," Kitzhaber said Friday before touring a Eugene agency serving homeless youth. The preliminary decision will be a relief to doctors wishing to take part, he said. The conclusion, if confirmed by Reno, will allow Oregon to proceed with handling the complexities of physician-assisted suicide, including working through a dispute between the Oregon Medical Association and the state Board of Pharmacy, he said. The president of the Oregon Medical Association, whose members are divided about the issue of assisted suicide, echoed that sentiment. Although applauding the Justice Department's initial conclusion as a victory for Oregon doctors, Dr. Charles E. Hofmann, a Baker City internist, said it would not have an immediate effect on physicians' behavior. First, the panel's findings are not final. Second, physicians are grappling with many more issues than the DEA. "It's one step down a long road," Hofmann said. The big issue for the medical association, at present, is whether physicians would have to comply with a state Board of Pharmacy emergency rule that requires doctors to divulge when they have written a prescription under the Death With Dignity Act. Arguing that the rule violates patient confidentiality, the medical association has appealed the pharmacy board's action to the Oregon Court of Appeals. The court action is pending. Dr. Patrick M. Dunn, chairman of the Task Force to Improve Care of the Terminally Ill and a HealthFirst Medical Group internist, called the Justice Department review team's conclusion "an important piece of the puzzle." "It will free at least one of the barriers hanging over the law," he said. Barbara Coombs Lee, co-author of the assisted suicide law and head of the Compassion in Dying Federation, concurred. "It's not the DEA's business to steamroll ... the people of Oregon and replace the voters' judgment with their own," she said. She called the review team's conclusion "the last in a long line of victories for the Oregon people and the Oregon Death With Dignity Act. ... Every dying Oregonian and every doctor who treats dying Oregonians should know that the (act) is a reality. It is an option to be counted among all the others at the end of life." But Dr. William M. Petty, vice president of Physicians for Compassionate Care, which opposes the act, said, "Allowing it is not ethical and never will be." Petty said his organization plans to be more active in advocating that patients get good end-of-life care, palliative care and second opinions that emphasize alternatives to assisted suicide. In Washington, opponents of assisted suicide, including President Clinton and leading congressional Republicans, said little about what strategy they would pursue if Reno agrees with the review team. "I cannot speculate on what we may do in the event of a hypothetcial situation," said Jon Murchinson, a White House spokesman. Likewise, assisted suicide opponents on Capitol Hill refused to say whether they would try to pass new legislation to thwart the Oregon law -- an arduous and potentially perilous task. "We will wait until the administration's formal position is announced before commenting," said Jeanne Lopatto, an aide to Sen. Orrin Hatch, R-Utah, Senate Judiciary chairman. Wyden, however, said he would not be surprised if legislation is proposed. Earlier this month, he noted, a bipartisan group of eight senators sent a letter to Reno urging her to accept Constantine's interpretation of the Controlled Substances Act. Richard Doerflinger, a spokesman for the U.S. Catholic Conference, said Friday that if the DEA does not have the authority to discipline doctors, then Congress should give it that authorization. Proposing a new law could carry political risk, Wyden said. Some of the loudest opponents of assisted suicide also are outspoken proponents of states' rights. "It'll be an interesting philosophical challenge for them." Wyden personally opposes Oregon's assisted suicide law but has emerged as its chief defender against federal intervention. Sen. Gordon Smith, R-Ore., who also opposes the Oregon law, backed Constantine's interpretation. It's unclear when Reno will render a final decision, said Josh Kardon, Wyden's chief of staff. He expects Reno to wait for comments from the White House, which has been distracted by preparations for the president's State of the Union speech on Tuesday and charges of sexual misconduct. Although Kardon said he did not have a draft of the Justice Department review team's findings, he said he had been told by administration sources that such a document had been circulated within the department. The review team's opinion may reflect the position taken by the Oregon attorney general. On Nov. 20, David Schuman, Oregon deputy attorney general, met with Justice Department officials to argue that Congress intended the Controlled Substances Act to deal with the abuse and trafficking of controlled substances, not with medical practices deemed legal under state law. The Death With Dignity Act still faces a court challenge. A federal judge in Eugene will hear arguments Feb. 18 about whether he should reinstate a lawsuit challenging the act's constitutionality. U.S. District Judge Michael R. Hogan in 1995 ruled that the act violated the U.S. Constitution's equal protection clause, but the U.S. 9th Circuit Court of Appeals last year reversed Hogan, saying the chronically ill plaintiff did not have standing to sue. The U.S. Supreme Court last fall refused to consider the case. Steve Woodward and Gail Kinsey Hill of The Oregonian staff and correspondent Janet Filips contributed to this report. Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=9051