Euthanasia and Assisted Suicide - The Battle Over Legalizing Physician-assisted Suicide

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In 2004 Oregon was the only state with a law allowing physician-assisted suicide, and then only in limited circumstances. Attempts to allow assisted suicide have been defeated in California, Washington, Michigan, Maine, Wyoming, and Hawaii. In 2004, 35 states had explicit laws against assisted suicide. Nine states had "common law" provisions against assisted suicide. This means there was a precedent of customs, usage, and court decisions that would support prosecution of an individual assisting in a suicide. Three states (North Carolina, Utah, and Wyoming) have abolished their common law provisions and do not have statutes criminalizing assisted suicide, but they do not have laws allowing it either.

Oregon

In November 1994 Oregon voters approved Measure 16 by a vote of 51 to 49 percent, making Oregon the first jurisdiction in the United States to legalize physician-assisted suicide. Under the Death with Dignity Act, 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 6.6 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 Death with Dignity Act was kept on hold due to legal challenges. In November 1997, 60 percent of Oregonians voted to defeat a measure to repeal the 1994 law (40 percent of voters voted in favor of repealing the Act). 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 it was inconsistent, 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.)

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) by 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 2004 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 Attorney General John 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 Drug Enforcement Agency to prosecute the physicians. In addition, the Court noted that Ashcroft's interpretation of the Controlled Substances Acts violated Congress's intent.

ANALYSIS OF THE EFFECTS OF THE DEATH WITH DIGNITY ACT.

In March 1998 an Oregon woman in her mid-80s 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 2002 a total of 70 people had reportedly committed suicide with a doctor's assistance under the Death with Dignity Act. According to the Sixth Annual Report on Oregon's Death with Dignity Act (Portland: Oregon Department of Human Services, Office of Disease Prevention and Epidemiology, March 10, 2004), 38 Oregon patients used legal physician-assisted suicide in 2002, and 42 patients did so in 2003, bringing the total number of deaths under the Oregon law to 150 by the beginning of 2004. The report also noted that 58 prescriptions for lethal medication were written in 2002, and 67 in 2003. Prescriptions for lethal medication have increased every year since 1998, when 24 prescriptions were written.

The median age of people who took lethal medication in 2003 was 73 years, and 83 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 (93 percent), a decreasing ability to participate in activities that make life enjoyable (93 percent), and loss of dignity (82 percent).

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 that "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' ATTITUDES.

Bioethicists, physicians, legislators, and patient advocacy groups have watched with interest to learn whether the attitudes and practices of Oregon physicians 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, MD, 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).

Dr. Ganzini and her colleagues found that 51 percent of responding physicians supported the Act, 32 percent opposed it, and 17 percent 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 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 percent were unwilling to prescribe lethal medication. Despite their reluctance to assist patients to die, more than half of the respondents (53 percent) 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 percent) indicated some degree of comfort discussing the Act with patients and 36 percent said patients had asked them whether they would be willing to prescribe lethal medication. Nearly 60 percent of physicians who were not morally opposed to prescribing lethal medication expressed concerns about adhering to federal Drug Enforcement Agency law and feared public scrutiny and hospital sanction.

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