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Congress Determined to Overturn Oregon Law

August 1998

The effort to repeal Oregon's Death with Dignity ACT (ODWDA) failed in Oregon last November -- by a 60% - 40% margin -- in one of history's largest turnouts for a special election. But even before the vote was tallied opponents in Washington D.C. vowed to find a way to undermine the new law.

Hatch and Hyde Step In

The first attempt was an opinion rendered at the behest of Senator Orrin Hatch, R-Utah, and Congressman Henry Hyde, R-Ill, by the Administer of the federal Drug Enforcement Administration (DEA). Administrator Thomas Constantine suggested the DEA could revoke the prescribing authority of physicians who complied with Oregon law and prescribed drugs to assist dying. He claimed that "delivering, dispensing or prescribing a controlled substance with the intent of assisting a suicide would not be under any current definition of a 'legitimate medical purpose' and therefore a violation of the federal Controlled Substances Act.

This strategy to put Oregon's law on hold failed when Attorney General Janet Reno immediately declared the Administrator's opinion premature and assigned Justice Department lawyers to review it. While the review was underway over 200 members of Congress pressured the Attorney General to back up Constantine and instruct DEA officials to block the Oregon law.

The Department of Justice spent several months studying the Controlled Substance Act (CSA). All the while Compassion in Dying and others quietly and carefully implemented the law and helped patients in Oregon realize their choices under the ODWDA for a peaceful, humane death. (See The Oregon Experience, this issue.)

Janet Reno Stands Up for Oregon

On June 5, 1998 the Department of Justice wrote to members of Congress announcing its determination that "the federal government's pursuit of adverse actions against Oregon physicians who fully comply with that state's Death with Dignity Act would be beyond the purpose of the CSA."

The Department concluded that the CSA was intended to keep legally available controlled substances within lawful channels of distribution and to prevent trafficking and drug abuse. But when Congress passed the CSA in 1970 it did not intend "to displace the states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice."

The letter goes on to say, "Even more fundamentally, there is no evidence that Congress, in the CSA, intended to assign DEA the novel role of resolving the 'ernest and profound debate about the morality, legality and practicality of physician-assisted suicide,'" and cites Compassion's Supreme Court case, Washington v. Glucksberg.

Opponents of end-of-life choice greeted the opinion with dismay, but other, more objective observers supported the Department's stand. Oregon's Governor John Kitzhaber, who is a physician, said, "This was a tough call for Attorney General Janet Reno to make. I commend her for sticking to the facts in this case and not allowing political pressure to influence her judgment in this matter."

The New York Times editorialized on June 8, 1998 that "The nation is beginning to grapple with an individual's right to control how a life ends.... Ms. Reno's decision allows voters in all states to act according to their values." Even the Portland Oregonian, a newspaper that has vociferously opposed the Death with Dignity Act, said this is a matter "for the people of Oregon to wrestle with free of the looming specters of federal drug agents. Reno's decision to butt out is welcome."

Opponents Resolve to Pass New Law

But within hours of reading Reno's opinion House Judiciary Chairman Hyde and Sen. Don Nickles, R-Okla., introduced bills in the House and Senate to change the law and instruct the DEA to revoke the federal prescribing license of any physician who participates in an assisted death.

The Hyde-Nickles bill, called the "Lethal Drug Abuse Prevention Act of 1998" (H.R. 4006/SB 2151), was reportedly largely drafted by the Secretariat for Pro Life Affairs of the National Conference of Catholic Bishops. It goes so far as to attempt to punish physicians who write prescriptions now in Oregon -- even prior to the bill's passage in Congress. Such retroactive application is clearly unconstitutional, but it reveals how far opponents are willing to go to use federal power to threaten the medical community.

The National Right to Life Committee has reportedly made the Hyde/Nickles bill a priority and deployed three full time staff members to promote it. A lobbyist for the group told the Associated Press, "I can't imagine how we would lose."

Sponsors seemed assured their bills would pass. Sen. Nickles enlisted 18 cosponsors and predicted that it would pass the Senate with an overwhelming 100/0 vote. "I don't think it's that controversial," Nickles said.

Early Opposition

Early on, the only voices in opposition to the proposed congressional power grab were members of Oregon's Congressional delegation. They spoke of the irony of conservative Republicans leading the charge to deprive a state of its right to self-governance.

Representative DeFazio D-Ore observed that, "They're for states' rights if it cuts social programs. But when the people of a state use their authority under the Constitution to do something humane -- then they're not for states' rights."

Earl Blumenaur, D-Ore, added that he sincerely hoped "that people of conscience will allow people to proceed, watch what happens in Oregon ... not impose their will on people in Oregon who are actually trying to do some important, pioneering work."

Testimony lopsided in favor of H.R.4006 dominated the first hearing on July 14 before a Subcommittee of the House Judiciary Committee. Only a few people were allowed to speak in opposition. The subcommittee heard testimony from Dr. Herbert Hendin, Diane Coleman and other persistent opponents of legalization of assisted dying that "The sanction of assisted suicide is bad for patients, bad for medicine and bad for society."

Yet the few who were allowed to speak in opposition to the bill did so with authority and forcefulness. Dr. Thomas Reardon testified for the American Medical Association that "the AMA believes that expanding the DEA's authority in this matter would be an unacceptable federal intrusion over matters of state law regarding the practice of medicine."

Governor Kitzhaber expressed his "great alarm" at the policy implications of such an unprecedented expansion of federal power over medicine. He urged Congress to be forthright if they wished to overturn two statewide plebiscites in Oregon, and not use "the artifice of an amendment of the Controlled Substances Act" to intervene in the practice of medicine.

Unexpected Controversy

As word of this proposed legislation spreads throughout the country, it must surprise Sen. Nickles to find every major medical organization lined up in opposition to his bill. A multitude of organizations, including the American Medical Association, American Academy of Hospice and Palliative Medicine, American Geriatrics Society, American Pharmaceutical Association, American Society of Health System Pharmacists, National Hospice Organization and the Pain Care Coalition, have opposed or raised serious concerns about the Hyde/Nickles bill.

The concern of most medical professionals arises from the effort to bar the use of certain medications, based on the "intent" of the physician doing the prescribing. Congressional opponents of assisted dying do not appear to appreciate that at the end of life many aggressive comfort care measures such as terminal sedation, withdrawing life support and administering high dose narcotics carry an ambiguous, or mixed intention. They think they can draw a bright line and say that on one side of the line is an intention to relieve suffering, and on the other side is an intention to cause death.

Seasoned professionals who care for the dying know that it is frequently impossible to maintain a "pure" intention only to relieve suffering, when death is a certain outcome of a course of action. Trying to limit physicians to a pure intention would surely deter them from using sedatives and narcotics to their full advantage in treating the dying. When death comes, as it always does in hospice and other end-of-life care, who wants to be accused of "intending" that death and face stiff penalties?

A Spirited Senate Hearing

By the time the Senate Judiciary committee held its hearing on July 31st, opposition to the bill had grown substantially and the hearing was much more balanced than that in the House of Representatives. Judiciary Chairman Orrin Hatch R-Utah heard that even his friend and colleague, Sen. Gordon Smith R-Ore would not support the bill unless it were redrafted to withdraw retroactive prosecution of physicians and define a "high tolerance of aggressive palliative care."

Andrew Batavia, an attorney with quadriplegia, a former staff member at the Bush White House, former legislative assistant to Senator McCain, and past Executive Director of the National Council on Disability, testified as a long time and loyal Republican. He told Senator Hatch, whom he called "my hero," that the proposed legislation violates basic Republican principles of federalism, sound legislation, regulatory restraint and fairness. "I believe the Republican party stands for states' rights," he said. "This legislation tramples the rights of the citizens of Oregon."

Orrin Hatch insisted that his bill merely reinstates a "common sense interpretation of the CSA." But Senator Wyden asked Hatch, "Is Congress better equipped than the citizens of my state to make moral judgments regarding what is legitimate medical practice?"

From a medical perspective Joanne Lynn M.D., President of Americans for Better Care of the Dying, testified that you "can't adjudicate intent." She also advised the committee of an unexpected and ironic consequence. Because the proposed bill will diminish palliative care, end-of-life suffering will increase and this in turn will increase the demand for assisted dying.

Harold Sox M.D. spoke for 100,000 members of the American College of Physicians/American Society of Internal Medicine in expressing the belief that there is no way for the DEA to know for certain which of the 6,000 deaths in the United States each day are intentionally assisted. The potential harm of an investigation will create a "fear driven chain reaction," resulting in inadequate treatment of pain and suffering. Dr. Sox concluded that "This legislation attempts to draw a line where none can be drawn."

The Administration Weighs In

Possibly the most significant testimony, because of its implications for eventually obtaining the President's signature, came from the Department of Justice. Joseph Onek, Principal Deputy Associate Attorney General, testified that although the President opposes legalization of assisted dying, the Administration also opposes this particular legislation as a way to deter it.

The Department's concerns are that this bill would (1) divert the DEA from its core mission to prevent drug abuse and diversion, (2) embroil the DEA in the area of pain management where it has no expertise, (3) intimidate physicians into providing less-than-adequate pain relief, (4) undermine the cooperation DEA now enjoys with the medical community, and (5) not prevent assisted dying, which doesn't require specially prescribed controlled substances.

Although Senator Hatch pressed Mr. Onek for suggestions from the Administration on how this legislation might work in another form, he did not receive the answer he was searching for. Mr. Onek stayed firm in his position that the DEA was not the proper agency to deal with such a "profound moral issue," and said he felt is was inconceivable that Congress would give such far-reaching power to determine proper medical practice to a DEA official.

Hatch pressed witness after witness to help "find a way to end this dreadful practice," but he received neither concrete suggestions of better methods or specific promises of help from those who spoke. Dr. Sox told Sen. Hatch there was no compromise language that would prevent unwarranted investigations and make the bill acceptable. Dr. Lynn offered help drafting comprehensive comfort care reform, but Hatch seemed uninterested. The Senator ended the hearing exhorting everyone to "keep looking" and come back after the August recess with a bill everyone can support.

What Happens Next

The House Judiciary Committee held its "mark-up" on August 4 and sent the bill to the full House for a vote in early September. Passage in the House seems likely, with a vote generally along party lines. House Republicans so far seem unmoved by the overwhelming opinion of experts that patients throughout the country will experience increased needless suffering from this legislation.

Republicans in the Senate will continue to apply pressure to medical experts, professional associations and others to find a way to nullify Oregon's new law without alienating the medical community. All evidence to the contrary, the AMA and others will be asked to help draw an arbitrary line, on one side of which is an intent to relieve suffering and on the other side is an intent to cause death.

Drawing such a line is not merely a question of clever draftsmanship. Expert after expert from the fields of internal medicine, hospice, pharmacy and others attest to the fact that no line can be drawn. Candid practitioners acknowledge that at the end of life the intention to relieve suffering and the intention to end life are often closely intertwined.

We at Compassion cannot predict the eventual outcome in Congress. This issue seems to be very important to many Republicans in power and political considerations could cause the AMA to waiver in its opposition to line drawing. With the Patient Bill of Rights being worked, the organization may have a reason to curry political favor with the Republican Congress.

But Congress will have a lot to do come September and little time to do it. If the Republican party heeds the polls that reveal that a high priority on moral issues will cost them votes in November, this bill might slip into the background and languish in the Senate. Surely this would best serve principles of federalism, the people of Oregon and dying individuals throughout the country.

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This article was provided by Compassion in Dying. It is a part of the publication Compassion in Dying.