Opposing Oregon Law, Ashcroft Authorizes Federal ‘Action’ Against Physician-Assisted Suicide; State Vows Court Challenge

Attorney General John Ashcroft on Nov. 6 instructed the Drug Enforcement Administration to pursue disciplinary action against doctors who prescribe lethal doses of drugs to terminally ill patients under Oregon's "landmark" physician-assisted suicide law, the Washington Times reports (Seper, Washington Times, 11/7). In a memo to DEA Administrator Asa Hutchinson, Ashcroft said that the agency has the legal authority to revoke the prescription licenses of doctors who "participate in an assisted suicide using federally controlled substances." The memo, however, does not call for criminal prosecution of these physicians and says that the "use of such drugs ... to manage patients' pain is medically valid," the Los Angeles Times reports (Meyer/Murphy, Los Angeles Times, 11/7). Ashcroft said that assisted suicide is not a "legitimate medical purpose" for using federally controlled drugs (Pfleger, AP/Newsday, 11/6). Oregon is the only state that permits physician-assisted suicide. Under the Death with Dignity Act, which was approved by voters in state referenda in 1994 and 1997, doctors may provide, "but not administer, a lethal prescription to terminally ill patients who are Oregon residents." Two physicians must concur that the patient has "less than six months to live, has voluntarily chosen to die and is able to make health-related decisions" (Eggen/Connolly, Washington Post, 11/7). According to the Oregon Health Division, "at least" 70 patients have committed suicide under the law since 1997, with all using a "federally controlled substance such as a barbiturate" (AP/Newsday, 11/6).

Overruled
Ashcroft's directive overturns a 1998 decision by then-Attorney General Janet Reno. After Oregon's law took effect in 1997, then-DEA Administrator Thomas Constantine "determined" that physicians "could not prescribe deadly doses of drugs, including narcotics such as morphine, covered by the 1970 Controlled Substances Act" (Washington Post, 11/7). Reno, however, overruled Constantine the next year, saying that the act was not "intended to displace states as the primary regulators of the medical profession or override a state's authority" to determine what "constitutes a legitimate medical practice" (AP/Newsday, 11/6). In his memo, Ashcroft cited a May Supreme Court ruling that the Controlled Substances Act does not allow an exception for the medical use of marijuana to relieve pain (Los Angeles Time, 11/7). "[T]he Supreme Court reaffirmed last term that the application of federal law ... is uniform throughout the United States and may not be nullified by the legislative decisions of individual states," he wrote. Noting that doctors who prescribe lethal drugs to the terminally ill are required to file their prescription records with the Oregon Department of Health, Ashcroft added the DEA now has the authority to "take appropriate measures" to obtain copies of such records in investigating possible use of federally controlled drugs (Washington Times, 11/7).

An Undemocratic Move?
Ashcroft's announcement was met with strong criticism by Oregon officials and advocates of physician-assisted suicide, who said the Bush administration was overturning the will of Oregon voters (New York Times, 11/7). The decision will "deprive terminally ill Oregonians of crucially important choice in how they manage their final days. ... [T]his is an unprecedented intrusion on Oregon's ability to regulate the practice of medicine," Oregon Gov. John Kitzhaber (D) said (Carroll, Wall Street Journal, 11/7). "Within hours of the announcement," Oregon officials said they would go to court today to seek an injunction blocking enforcement of the new policy (Los Angeles Times, 11/7). Meanwhile, Sen. Ron Wyden (D-Ore.), who blocked a 1999 House-passed bill that would have overturned Reno's ruling and effectively invalidated the Death with Dignity Act, said the Bush administration should "go through the democratic process and bring this [new policy] through the Senate" (Rovner, CongressDaily/AM, 11/7). Opponents of physician-assisted suicide, on the other hand, praised Ashcroft's decision. "[This] is a carefully crafted [ruling] that ... reassures doctors about their ability to prescribe federally controlled drugs to relieve pain while ensuring that the federal government does not facilitate assisted suicide," Burke Balch, director of medical ethics at the National Right to Life Committee, said (Los Angeles Times, 11/7).

Medical Ramifications
Critics of the decision also expressed concern that it would have a "chilling effect" on doctors nationwide and "make [them] more hesitant to prescribe powerful painkillers that could be used to commit suicide" (Washington Post, 11/7). Ann Jackson of the Oregon Hospice Association said that doctors have a "great deal of fear" of being investigated, and that "the specter of federal drug agents knocking at physicians' doors" may "make them hesitant" to write prescriptions for "strong pain killers" to "patients who need them" ("Morning Edition," NPR, 11/7). But Hutchinson sought to allay such fears, saying that the DEA "fully supports the use of appropriate medications" for pain relief (Washington Post, 11/7). In any case, observers on both sides of the issue believe that the dispute will eventually wind up in the Supreme Court (Los Angeles Times, 11/7). The Washington Post reports that the court in 1997 upheld New York and Washington state laws "that made it a crime for doctors to give lethal drugs to dying patients." However, the court that year also "refused to hear a challenge" to Oregon's law (Washington Post, 11/7). To listen to a report on Ashcroft's decision from NPR's "All Things Considered," go to http://www.npr.org/ramfiles/atc/20011106.atc.15.ram. Note: You will need Real Audio to hear the report.