Letter to the Senate on the Pain Relief Promotion Act

Richard Doerflinger

November 3, 2000

Dear Senator:

On October 30, President Clinton said that the key question regarding the Nickles/Lieberman Pain Relief Promotion Act (now twice approved by the House and pending in the Senate) is "whether the bill as written would have a chilling effect on doctors writing medication for pain relief on terminally ill patients."

We welcome the President's invitation to clarify this issue, because the question he raises is a testable proposition. Language almost identical to that found in the Pain Relief Promotion Act has been enacted in ten states in recent years – and the effect of such language on the use of powerful pain relief medication such as morphine has been dramatically positive.

The attached data cover all states passing new laws against assisted suicide since 1992. During this period, ten states passed new laws that ban intentionally assisting suicide (or that strengthen existing bans), including language that affirms the use of medications to control pain even when this may unintentionally increase the risk of death. As you can see, data on morphine use from the Drug Enforcement Administration (DEA) show that per capita use of morphine always increased in these states afterward, sometimes dramatically so (see, e.g., Iowa, Rhode Island and South Dakota, where morphine use doubled). The average change in morphine use in these ten states was an increase of over 50%.

During the same period, four states passed laws against assisted suicide that did not include language affirming pain control like that found in the federal Pain Relief Promotion Act. Even here, there is little evidence of a significant "chilling effect" on morphine use; but per capita use of morphine tended to stay about the same or to increase only slightly. In these four states, where new bans on assisted suicide lacked the kind of positive language on pain control found in the Pain Relief Promotion Act, morphine use rose by an average of 3%.

Turning back to the ten states with language similar to that of the Pain Relief Promotion Act, one can reasonably predict that the impact of passing the federal Act would be even more positive for pain control, for the following reasons:

1. These states actually passed new bans (or established new civil penalties for doctors) where none previously existed. By contrast, in the vast majority of states the Pain Relief Promotion Act establishes no new ban at all – it is already a state crime (and/or a violation of state medical licensing standards) to assist suicide, and thus an automatic violation of the federal Controlled Substances Act to use a federally controlled drug in such a practice. Thus, in the vast majority of states, the only provision of the federal Act to have new legal effect is the clearer "safe harbor" for physicians practicing pain control even in cases where there is a risk of death.
   
   
2. The state bans generally imposed criminal liability (imprisonment and fines), and/or civil liability with the potential for large monetary damages. The only "penalty" under the federal bill is that the DEA has the option (not a mandate) to suspend or revoke a practitioner's special federal prescribing privilege to handle controlled substances. As the federal Act itself clearly states, and as the House Judiciary Committee acknowledged in its report on the bill, such action has no effect on a practitioner's state license to practice medicine. (The charge that the federal bill imposes a criminal penalty of 20 years in prison has been rebutted by the Congressional Research Service's analysis of this bill. That is the penalty allowed by the existing Controlled Substances Act in cases where a misuse of controlled substances causes death, and assisting a suicide is already deemed to be misuse in all 50 states, except for a handful of cases in Oregon. Moreover, the Justice Department pursues criminal indictments against physicians chiefly when they are involved in large-scale drug trafficking, not when they have misused their federal prescribing privileges in individual cases, and nothing in the federal bill changes that. Even Jack Kevorkian, convicted of violating Michigan's homicide and controlled substances laws after he used a controlled substance to kill a man on national television, has never faced criminal charges under the federal Controlled Substances Act.)
   
   
3. The state laws were primarily concerned with banning assisted suicide; they then added a disclaimer that pain control that unintentionally hastens death does not fall under the ban. The federal bill has the opposite priority: It establishes an affirmative endorsement of pain management as a "legitimate medical purpose" for use of controlled substances, and then adds a disclaimer that this endorsement "does not authorize" intentionally causing patients' deaths by assisted suicide and euthanasia. (An earlier federal bill, the Lethal Drug Abuse Prevention Act of 1998, was worded much more similarly to the state laws in this regard; but the new federal bill was rewritten with the help of medical and palliative care groups to be far more positive and unambiguous in endorsing aggressive pain management.)
   
   
4. The federal bill has educational and grantmaking provisions absent from these state laws: Continuing education for law enforcement personnnel on how to better accommodate physicians' legitimate need for controlled substances to control pain; and grants totaling $5 million a year to educate medical professionals in their legal authority and medical responsibility to provide better pain management and palliative care.

Opponents may claim that the Pain Relief Promotion Act poses a threat to palliative care that did not exist in the case of the state laws, because it may lead to more aggressive federal enforcement by the DEA rather than by state authorities. This charge simply ignores the way the DEA becomes involved in individual cases. Where state and federal law do not conflict, DEA routinely leaves enforcement to state authorities in the first instance, and it would continue to do so under this bill. The only source of a potential conflict is Oregon, where assisted suicide in certain cases is permitted by state law; but such state permission is conditioned on the physician's submitting a report of the case to state authorities, clearly stating that his or her intent was to assist a suicide. These reports will be available for federal review to determine whether a federally controlled drug was used. So in no case does this bill call for more direct or frequent scrutiny of practitioners or their "intent." Rather, it calls in all 50 states for greater deference to physicians' medical judgments about the need for controlled substances to control pain.

The evidence suggests that passage of the Pain Relief Promotion Act will be unambiguously beneficial to the cause of optimum pain management. Thus, with the red herring of the "chilling effect" argument behind us, Congress and the President can assess this legislation in terms of the issue it really presents: Should the federal government, in any circumstance, approve and authorize prescribing and administering federally controlled drugs to deliberately kill one's patients? If you believe the answer is no, you will want to enact the Pain Relief Promotion Act before this Congress adjourns.

Sincerely,

Richard M. Doerflinger
Associate Director for Policy Development
Secretariat for Pro-Life Activities
National Conference of Catholic Bishops

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Per capita use of morphine (in grams per 100,000 people) in states passing new laws against intentionally assisting suicide (WITH "principle of double effect" provision affirming doctors' ability to provide pain management, as in federal Pain Relief Promotion Act)

Iowa - passed ban in 1996 (took effect July 1996)

1995 - 935 g - 30th among states
1996 - 1221 - 28th
1997 - 2207 - 26th
1998 - 2029 - 38th
Percentage change in morphine use (from year before enactment to year after): +136%

Kansas - passed law in 1998 strengthening law against assisted suicide and adding civil penalties, while adding "double effect" provision affirming pain control that may unintentionally hasten death (took effect July 1998)

1997 - 2047 g - 35th
1998 - 2016 - 39th
1999 - 2179 - 32nd
2000 (first half, pro-rated) - 2311 - 31st
Percentage change in morphine use: +6%

Kentucky - passed ban in 1994 (took effect July 1994)

1993 - 1388 g - 11th
1994 - 1624 - 6th
1995 - 1462 - 4th
1996 - 1673 - 7th
Percentage change in morphine use: +5%

Louisiana - passed ban in 1995 (took effect June 1995)

1994 - 843 g - 41st
1995 - 786 - 45th
1996 - 1058 - 37th
1997 - 1845 - 42nd
Percentage change in morphine use: +26%

Maryland - passed law in 1999 (took effect October 1999)

1998 - 2858 g - 16th
1999 - 2990 - 15th
2000 (first half, pro-rated) - 3347 - 12th
Percentage change in morphine use: +17%

Rhode Island - passed ban in 1996 (took effect August 1996)

1995 - 928 g - 33rd
1996 - 966 - 46th
1997 - 2454 - 18th
1998 - 2480 - 24th
Percentage change in morphine use: +164%

South Carolina - passed ban in 1998 (took effect June 1998)

1997 - 1457 g - 51st
1998 - 1625 - 49th
1999 - 1659 - 49th
2000 (first half, pro-rated) - 2014 - 43rd
Percentage change in morphine use: +14%

South Dakota - passed law in 1997 to strengthen ban on assisted suicide, adding civil penalties, while adding "double effect" language affirming pain control that may unintentionally hasten death (took effect July 1997)

1996 - 978 g - 45th
1997 - 2132 - 30th
1998 - 1896 - 43rd
1999 - 1880 - 43rd
Percentage change in morphine use: +94%

Tennessee - passed law in 1993 (took effect July 1993)

1992 - 1180 g - 16th
1993 - 1417 - 9th
1994 - 1544 - 8th
1995 - 1407 - 7th
Percentage change in morphine use: +31%
(for first half of 2000, Tennessee ranks 2nd highest among all states, with 2261 g of morphine per 100,000 people – pro-rated for full year this would be 4522 g)

Virginia - passed law in 1998 (took effect April 1998)

1997 - 2007 g - 37th
1998 - 2106 - 33rd
1999 - 2401 - 27th
2000 (first half, pro-rated) - 2432 - 28th
Percentage change in morphine use: +20%

Source of data on per capita use of morphine: U.S. Drug Enforcement Administration
Per capita use of morphine in states passing new laws against assisted suicide (WITHOUT "principle of double effect" provision affirming doctors' ability to provide pain control that may unintentionally hasten death)

Georgia - passed ban in 1994

1993 - 1029 grans per 100,000 people -28th among states
1994 - 937 g - 33rd
1995 - 838 g - 39th
1996 - 1030 g - 39th
Percentage change in morphine use (from year before enactment to year after): -19%
(a year later morphine use was back up to its older level)

Illinois - passed ban in 1993

1992 - 811 g - 40th among states
1993 - 872 - 39th
1994 - 880 - 36th
1995 - 822 - 40th
Percentage change in morphine use: +9%

Michigan - passed ban in 1998 (took effect September 1998)

1997 - 2251 g - 24th
1998 - 2540 - 23rd
1999 - 2700 - 19th
2000 (first half, pro-rated ) - 2737 - 22nd
Percentage change in morphine use: +20%

Oklahoma - strengthened law in 1998 to add civil penalties (took effect November 1998)

1997 - 2097 g - 31st
1998 - 2186 - 30th
1999 - 2137 - 34th
2000 (first half, pro-rated) - 2277 - 33rd
Percentage change in morphine use: +2%

Average percentage change in morphine use in these four states, comparing year before enactment of assisted suicide ban to year after enactment: +3%

Average percentage change in morphine use in the ten states which passed laws against assisted suicide incorporating language on pain control similar to that of the Pain Relief Promotion Act: +51%

Source of data on per capita use of morphine: U.S. Drug Enforcement Administration