The Oregon Death with Dignity Act
In November 1994 Oregon voters approved Measure 16 by a vote of 51% to 49%, making Oregon the first jurisdiction in the United States to legalize physician-assisted suicide. Under the Oregon Death with Dignity Act (ODDA), a mentally competent adult resident of Oregon who is terminally ill (likely to die within six months) may request a prescription for a lethal dose of medication to end his or her life. (See Table 6.8 to see what the Oregon law does and does not do.) Critics charge that assisted death is now "state-subsidized" because Medicaid money may be used to pay for physician-assisted suicide for the poor.
Between 1994 and 1997 the ODDA was kept on hold due to legal challenges. In November 1997 Oregonians voted to defeat a measure to repeal the 1994 law. Immediately after this voter reaffirmation of the Death with Dignity Act, the Drug Enforcement Administration (DEA) warned Oregon doctors that they could be arrested or have their medical licenses revoked for prescribing lethal doses of drugs. DEA administrator Thomas Constantine, under pressure from some members of Congress, stated that prescribing a drug for suicide would be a violation of the Controlled Substances Act (PL 91-513) because assisted suicide was not a "legitimate medical purpose." Janet Reno, who was then the U.S. Attorney General, overruled Constantine and decided that that portion of the Controlled Substances Act would not apply in states that legalize assisted suicide. Those opposed to the practice observed that Reno's ruling was inconsistent with other rulings, citing the government's opposite ruling in states that have legalized marijuana for medical use. (Reno maintained that the prescription of marijuana is still illegal, regardless of its medicinal value.)
TABLE 6.8
Provisions of Oregon's Death with Dignity Act
What the law does do
The Death with Dignity law allows Oregon residents to obtain medication from their physicians after two explicit oral requests and a written request have been made
Key facts
- At least two doctors must concur on diagnosis, prognosis and the patient's capability;
- The patient must provide a written request to their physician witnessed by two individuals who are not family members or primary caregivers;
- The patient must ultimately administer the prescription him/herself.
What the law doesn't do
- Allow non-Oregonians to use the law;
- Allow anyone other than the patient to make the request;
- Allow euthanasia. The law explicitly prohibits euthanasia, which is typically defined as having someone other than the patient administer a life-ending medication.
SOURCE: Adapted from "Death with Dignity Primer," Death with Dignity National Center
In response to the DEA decision, Congress moved toward passage of the Pain Relief Promotion Act. This law would prevent the use of federally controlled drugs for the purpose of assisted suicide and euthanasia. It would also strengthen protections for doctors who use narcotics to manage patients' pain, provide research grants, and establish a program for palliative care. As of June 2000, the House had passed the measure (HR 2260) 271 to 156. In April 2000 it was favorably reported out of the Senate Judiciary Committee; however, a scheduled vote was stalled in the Senate, and as of June 2006 the Act had not been passed.
On November 6, 2001, John Ashcroft, who succeeded Janet Reno as U.S. Attorney General, overturned Reno's 1998 ruling that prohibited the DEA from acting against physicians who use drugs under Oregon's physician-assisted suicide law. Attorney General Ashcroft said that taking the life of terminally ill patients is not a "legitimate medical purpose" for federally controlled drugs. The Oregon Medical Association and Washington State Medical Association opposed Attorney General Ashcroft's ruling, and even physicians opposed to assisted suicide expressed concern that the ruling might compromise patient care and that any DEA investigation might discourage physicians from prescribing pain medication to patients in need.
The State of Oregon disagreed so vehemently with Attorney General Ashcroft's interpretation of the Controlled Substances Act that on November 7, 2001, Oregon's attorney general filed suit, claiming that Ashcroft was acting unconstitutionally. A November 8, 2001, restraining order allowed the Death with Dignity Act to remain in effect while the case was tried.
On April 17, 2002, U.S. District Judge Robert E. Jones ruled in favor of the Death with Dignity Act. His decision read, in part:
State statutes, state medical boards, and state regulations control the practice of medicine. The [Controlled Substances Act] was never intended, and the [U.S. Department of Justice] and [Drug Enforcement Administration] were never authorized, to establish a national medical practice or act as a national medical board. To allow an attorney general—an appointed executive whose tenure depends entirely on whatever administration occupies the White House—to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented and extraordinary…. Without doubt, there is tremendous disagreement among highly respected medical practitioners as to whether assisted suicide or hastened death is a legitimate medical practice, but opponents have been heard and, absent a specific prohibitive federal statute, the Oregon voters have made the legal, albeit controversial, decision that such a practice is legitimate in this sovereign state.
The Justice Department appealed the ruling to the Ninth Circuit Court of Appeals. On May 26, 2004, the court stopped Ashcroft's attempts to override the Oregon law. The divided three-judge panel ruled that Ashcroft overstepped his authority when he declared that physicians who prescribe lethal drug doses are in violation of the 1970 federal drug law and when he instructed the federal DEA to prosecute the physicians. In addition, the Court noted that Ashcroft's interpretation of the Controlled Substances Acts violated Congress's intent.
In February 2005 the U.S. Supreme Court agreed to hear the Bush administration's challenge of Oregon's physician-assisted suicide law. On January 17, 2006, the Supreme Court let stand Oregon's physician-assisted suicide law. The High Court held that the Controlled Substances Act "does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure." Writing for the majority, Justice Anthony Kennedy stated that both Ashcroft and Attorney General Alberto Gonzales did not have the power to override the Oregon physician-assisted suicide law. Kennedy also added that it should not be the attorney general who determines what is a "legitimate medical purpose" for the administration of drugs, because the job description for the attorney general does not include making health and medical policy.
ANALYSIS OF THE EFFECTS OF THE OREGON DEATH WITH DIGNITY ACT
In March 1998 an Oregon woman in her mid-eighties who had terminal breast cancer ended her life with a lethal dose of barbiturates. Hers was the first known death under Oregon's assisted-suicide law. By the end of 2004, a total of 208 people had reportedly committed suicide with a doctor's assistance under the ODDA. According to the Seventh Annual Report on Oregon's Death with Dignity Act (Oregon Department of Human Services, Office of Disease Prevention and Epidemiology, March 10, 2005, http://egov.oregon.gov/DHS/ph/pas/docs/year7.pdf), thirty-seven Oregon patients used legal physician-assisted suicide in 2004, and forty-two patients did so in 2003. The report also noted that sixty prescriptions for lethal medication were written in 2004, and sixty-eight in 2003. Prescriptions for lethal medication increased every year from 1998 to 2003. In 1998 twenty-four prescriptions were written.
The median age of people who took lethal medication in 2004 was sixty-four, and 78% percent suffered from end-stage cancer. Physicians were asked if patients voiced any of seven end-of-life concerns that might have contributed to their requests for lethal medication. In nearly all cases physicians reported that patients had multiple concerns contributing to the request. The most frequently cited concerns were losing autonomy (ability to make independent choices; 87%), a decreasing ability to participate in activities that make life enjoyable (92%), and loss of dignity (78%).
Based on the Oregon Health Division's annual reports, groups in favor of the legalization of assisted suicide conclude that the law is working as intended and without abuse. Opponents of the law continue to charge that the law discriminates against the elderly and seriously ill and express concern about reporting requirements. The Oregon Health Division admits, "Underreporting cannot be assessed, and noncompliance is difficult to assess because of the possible repercussions for noncompliant physicians reporting data to the division."
OREGON PHYSICIANS', NURSES', AND SOCIAL WORKERS' ATTITUDES TOWARD THE ODDA
Bioethicists, physicians, legislators, and patient advocacy groups have watched with interest to learn whether the attitudes and practices of Oregon physicians and other health care practitioners would change in response to the passage of the Death with Dignity Act. In early 1999 researchers mailed questionnaires to 3,981 Oregon physicians to find out about their experiences with the Act. The responses of the 2,641 physicians who returned the survey by August 1999 were reported by Linda Ganzini, M.D., et al in "Oregon Physicians' Attitudes about and Experiences with End-of-Life Care since Passage of the Oregon Death with Dignity Act" (Journal of the American Medical Association, vol. 285, no. 18, May 9, 2001).
Ganzini and her colleagues found that 51% of responding physicians supported the Act, 32% opposed it, and 17% neither supported nor opposed it. Four out of five respondents said their attitude about the law was unchanged since it passed; however, among those whose feelings had changed, nearly twice as many supported the Act as opposed it. Thirty percent considered prescribing lethal medication under the Act immoral or unethical, and 46% were unwilling to prescribe lethal medication. Despite their reluctance to assist patients to die, more than half of the respondents (53%) reported that if terminally ill, they would consider seeking physician assistance to end their own lives.
The researchers found that more than three-quarters of physicians who had cared for a terminally ill patient in the prior year had sought to improve their knowledge of depression, their ability to recognize and treat the illness, as well as prescribing pain medication. Nearly all respondents (91%) indicated some degree of comfort discussing the Act with patients and 36% said patients had asked them whether they would be willing to prescribe lethal medication. Nearly 60% of physicians who were not morally opposed to prescribing lethal medication expressed concerns about adhering to federal DEA law and feared public scrutiny and hospital sanction.
In 2001 Lois L. Miller, along with Ganzini and colleagues (see previous paragraphs) researched the attitudes of Oregon hospice nurses and social workers to legalized assisted suicide (Miller et al, "Attitudes and Experiences of Oregon Hospice Nurses and Social Workers Regarding Assisted Suicide," Palliative Medicine, vol. 18, no. 8, 2004). They found that 48% of the 306 hospice nurses who responded to the survey and 72% of the eighty-five social workers who responded supported the ODDA.
Miller noted that results showed a much higher percentage of social workers (78%) supported the ODDA than did hospice nurses (48%). The researchers suggested that this dissimilarity reflects different emphases in the nurses and social workers professional organizations' codes of ethics and position statements on assisted suicide. The American Nurses Association's position statement emphasizes the patient, while that of the U.S. National Association of Social Workers views client self-determination as a primary guiding principle. Table 6.9 summarizes the differences in the attitudes toward the ODDA among Oregon physicians, nurses, and social workers.
TABLE 6.9 Proportion of Oregon physicians, nurses, and social workers in support of and opposition to the Oregon Death with Dignity Act, 1999 and 2001
| TABLE 6.9 | |||
|---|---|---|---|
| Proportion of Oregon physicians, nurses, and social workers in support of and opposition to the Oregon Death with Dignity Act, 1999 and 2001 | |||
| 1999 survey | 2001 survey | ||
| Physicians (percent) | Nurses (percent) | Social workers (percent) | |
| *ODDA is Oregon Death with Dignity Act. | |||
| SOURCE: Lois L. Miller, et al., "Table 3. Proportion of Physicians, Nurses, Social Workers in Support of and Opposition to ODDA," in "Attitudes and Experiences of Oregon Hospice Nurses and Social Workers Regarding Assisted Suicide," Palliative Medicine, vol. 18, no. 8, 2004 | |||
| Support ODDA* | 51 | 48 | 72 |
| Oppose ODDA* | 32 | 36 | 13 |
| Neutral on ODDA* | 17 | 16 | 15 |
| More supportive since 1994 | 13 | 16 | 24 |
| More opposed since 1994 | 7 | 9 | 5 |
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