Testimony on Pain Relief Promotion Act of 2000

Testimony of the National Conference of Catholic Bishops in support of H.R. 2260, the Pain Relief Promotion Act of 2000 Senate Judiciary Committee

April 25, 2000

The Catholic bishops of the United States strongly support the Pain Relief Promotion Act of 1999 (H.R. 2260), as well as the substitute bill proposed by chairman Orrin Hatch which incorporates revisions requested by medical organizations (henceforth "Chairman's Substitute"). We believe that swift enactment of this legislation is needed for two purposes: (1) to correct a seriously flawed 1998 ruling by U.S. Attorney General Janet Reno, which authorizes the use of federally regulated drugs to assist vulnerable patients' suicides wherever the practice is permitted by state law; and (2) to promote the legitimate use of these drugs to relieve pain and other distressing symptoms, especially for patients who are terminally ill.

In our view, these two goals are both important, and are closely related. Terminally ill patients deserve better pain control precisely because they have the same innate worth and dignity as all other human beings and are in special need of our love and support. When a society singles out these patients as candidates for physician-assisted suicide, it denies the value of their very lives, and thereby undermines respect for their dignity and their legitimate needs -- including their need for the best possible palliative care.

When we accept assisted suicide as a "good enough" solution for these patients, we preach a counsel of despair to all terminally ill patients. We tell them that we find it easier to kill them than to find ways to kill their pain. By rejecting the "quick fix" of assisted suicide, however, we reaffirm to ourselves and to the medical profession that these patients have lives worth living, and that they deserve real solutions for the pain, depression and isolation that they may experience.

In our view, then, the two titles of this bill -- one providing federal support for training in palliative care, the other clarifying federal law on the use of controlled substances -- serve the same goal of promoting genuine supportive care for some of our most vulnerable citizens. Because medical professionals can speak with greater expertise on the palliative care provisions in Title I of the Chairman's Substitute, we would like to focus on the urgent need to enact Title II, clarifying the Controlled Substances Act.

The Need to Clarify the Controlled Substances Act
On June 5, 1998, contradicting an earlier determination by her own Drug Enforcement Administration, U.S. Attorney General Janet Reno ruled that the State of Oregon, by rescinding its own penalties for assisting the suicides of certain patients, had effectively succeeded in unilaterally amending federal drug laws as well. According to the Attorney General, Oregon's law had established assisted suicide as a "legitimate medical practice" within Oregon's borders -- and the federal government lacked any basis for disagreeing with this judgment. Under this ruling, however, federal intervention by the Drug Enforcement Administration (DEA) "may well be warranted" in other states -- and is warranted even in Oregon, when a physician "fails to comply with state procedures" regarding how and when to assist suicides. Federal law will protect the lives only of those still deemed by the state to deserve suicide prevention, instead of suicide assistance.

Thus Attorney General Reno's ruling requires the federal government to ratify Oregon's assisted suicide policy -- and to help implement it, by licensing physicians to prescribe and distribute federally regulated drugs for the required lethal overdoses. This is not only morally wrong -- it directly contradicts everything that Congress and federal agencies have ever said about terminally ill patients and assisted suicide:

• Current federal policy demands an increased penalty when the victim of a federal crime is seriously ill or otherwise "unusually vulnerable."(1) Yet in Oregon, it is now the U.S. Justice Department's policy that the serious illness of the victim transforms a crime into a "legitimate" medical procedure, so that it is no crime or offense at all. Oregon's discriminatory policy, which stigmatizes an entire class of patients and denies them the equal protection of the law, has effectively been ratified by federal administrative fiat.(2)
  
  
• As the U.S. Supreme Court noted in its 1997 rulings on assisted suicide, it is a longstanding policy under the federal drug laws "to protect the terminally ill, no less than other patients," from potentially lethal drugs.(3) Yet in Oregon this policy is now turned on its head, so that federal prescribing licenses are used precisely for the purpose of facilitating lethal overdoses for the terminally ill.
  
  
• In 1997, Congress almost unanimously approved the Assisted Suicide Funding Restriction Act (42 U.S.C. §14401 et seq.) to ensure that federal funds, health facilities and health programs are not used for assisted suicide or euthanasia. The Senate approved this legislation 99-to-0. Signing it into law, President Clinton said it "will allow the Federal Government to speak with a clear voice in opposing these practices"; and he warned that "to endorse assisted suicide would set us on a disturbing and perhaps dangerous path." Yet an important federal statutory scheme, designed to ensure that potentially dangerous drugs are used only to promote patients' health, is now being used to condone and facilitate assisted suicide.

The Attorney General's ruling is especially indefensible as an interpretation of the Controlled Substances Act (CSA). Nothing in that Act indicates that an individual state, by dropping its own state penalties for a form of manslaughter, can convert such killing into a "legitimate medical purpose" for the use of federally controlled drugs within the meaning of the federal Act. Indeed, any "states' rights" argument on this issue is contradicted by the plain language and intent of the CSA. Provisions to ensure that narcotics and other dangerous drugs are used solely for a "legitimate medical purpose" (21 C.F.R. §1306.04), and are never used to endanger "public health and safety" (21 U.S.C. §823(b)(5)), have been included in this Act and its implementing regulations precisely to establish a uniform federal standard that would not rely on the vagaries of individual state laws.(4)

A clear and explicit purpose of such provisions was to prevent the use of federally regulated drugs for lethal overdoses, not only their use for addiction. Obviously, using drugs to cause people's deaths is an even greater threat to health and safety than using them to feed an addiction.

Current enforcement of the CSA reflects this understanding. In the past, physicians have had their DEA registrations revoked for giving dangerous drugs to patients who then used them to commit suicide (see, e.g., the case of Dr. Hugh Schade, reported at 60 Fed. Reg. 56354 [Nov. 8, 1995]). Practitioners can lose their registrations in such cases even for negligently giving these drugs to patients who they should have known might use them for suicide.(5)

Such enforcement has often relied on the separate federal policy of protecting patients' health and safety, quite aside from whether a practitioner has violated state criminal laws or even state medical licensing standards. Especially since the CSA was clarified and strengthened in 1984, "state licensure is a necessary but not sufficient condition for DEA registration" (63 Fed. Reg. 8479 [Feb. 19, 1998]). By the same token, revoking a DEA registration does not imply that a physician will lose his or her state medical license or has violated state law.(6) The Chairman's Substitute for H.R. 2260 makes explicit the States' sole authority to govern state medical licensing and state prescribing privileges.

To reaffirm this longstanding and consistent federal policy that all citizens, including the terminally ill, deserve protection from the lethal misuse of potentially dangerous drugs, new legislation is needed and long overdue.

Choosing the Means: New Features of H.R. 2260
In 1998 legislation was introduced to correct the Attorney General's legal error. The Lethal Drug Abuse Prevention Act (H.R. 4006, S. 2151) was approved by House and Senate Judiciary Committees, but was opposed by many medical groups who claimed it would have an adverse effect on physicians' ability or willingness to prescribe controlled substances for pain relief. This year's Pain Relief Promotion Act addresses these concerns in the following ways:

1. In order to correct the anomaly the Attorney General has created in the way federal law is enforced in Oregon, last year's legislation established a new substantive policy against the use of controlled substances for assisted suicide throughout the 50 states. Critics feared that this explicit new authority might be taken as giving the DEA a new mandate to question and scrutinize physicians' medical decisions in order to detect assisted suicides.(7) H.R. 2260 is based on a recognition that no new authority of this kind is needed. The Attorney General herself has acknowledged that the DEA already has authority to prevent the misuse of controlled substances for assisted suicide in every state except Oregon (and even has that authority in Oregon, when an assisted suicide does not comply with all the state's guidelines). The only new explicit statement on this issue in H.R. 2260 is that a state, by enacting a law permitting assisted suicide, does not succeed in changing the separate federal standard that already applies to all other states -- in other words, a law like Oregon's has no "force and effect" in determining whether a practitioner has violated separate federal standards for protecting patients' health and safety. This simply reaffirms what is already true under the federal Supremacy Clause: Where state and federal law conflict, federal law governs. The Chairman's Substitute also adds explicit statements that this bill cannot be construed to alter the respective roles of state and federal governments in regulating medical practice or to authorize new national standards for clinical practice regarding pain management.
   
   
2. The 1998 bill gave priority to stating a new policy against assisted suicide, then explained that this policy does not forbid the legitimate use of controlled substances to control pain. In H.R. 2260 the emphasis is reversed: It contains a forthright and explicit declaration on the legitimacy of using controlled substances to control pain, then adds that this and other policy statements in the relevant section of the CSA do not authorize the use of controlled substances for assisted suicide. In several ways the Chairman's Substitute further emphasizes the bill's strong commitment to promoting pain management and palliative care: It adds a "findings and purpose" section on this subject, reverses the order of the bill's titles to give greater prominence to the palliative care provisions, and adds a provision calling for a new decade of commitment to pain management.
   
   
3. H.R. 2260 contains a new mandate that the DEA's continuing education programs for federal, state and local law enforcement personnel include education in how their enforcement procedures can better accommodate the legitimate medical use of controlled substances for pain relief. Combined with the provisions supporting education and training in palliative care for health professionals, this provision underscores the federal policy that pain control is an important and legitimate purpose for the use of federally regulated drugs -- a policy that has never before been so explicitly stated in federal statutes. The Chairman's Substitute amends the provision on continuing education for law enforcement personnel to make it unambiguously clear that these personnel are to be trained in giving greater deference to physicians' decisions in the field of pain medicine – not in making medical determinations themselves.

The Pain Relief Promotion Act is carefully tailored to clarify federal law on assisted suicide only to the minimum degree needed to correct the Attorney General's ruling, so that the federal government will no longer actively facilitate assisted suicide in any state that has legalized the practice. It does not give new enforcement authority to the DEA, and does not change the law at all in the vast majority of states -- except to give new emphasis to the legitimate use of federally regulated drugs to control pain, and to provide a clearer "safe harbor" from legal liability for health professionals committed to such use.

Killing Pain vs. Killing Patients
Because the relationship between optimal pain management and physician-assisted suicide is central to this legislative debate, the difference -- we would say, the contradiction -- between the two practices is worth further comment.

The medical profession has long recognized that efforts to control pain using powerful drugs may sometimes have side-effects. Very rarely, controlling pain in dying patients may require the use of such large doses of drugs that the patient's breathing reflex may be suppressed and the dying process hastened. The physician's intent in these cases, however, is to use the minimum dosage needed to control the pain; any risk of hastening death is not intended, but is foreseen as the unavoidable side-effect of a legitimate medical action.(8)

This principle of double effect is not especially obscure. The difference between consequences which are intended, and those which are only foreseen, is part of everyday life.

As one federal appellate judge has observed, when General Eisenhower gave the order for D-Day he knew many American soldiers would die as a result -- but that does not mean he murdered them.(9) Conversely, when King David ordered Uriah the Hittite to the front line of battle, then called back his other men so Uriah would be killed, he murdered him as surely as if he had wielded the weapon himself (2 Sam 11: 15-17).

The important factor here is the agent's intent -- what am I trying to achieve by this action? The goal of pain control is a patient who is relieved of pain. The goal of assisted suicide is a world that is relieved of one more patient. And this difference of purpose is reflected in the different ways drugs are used in the two practices. Pain control requires carefully titrating drugs to the point where pain is relieved with a minimum of side-effects; assisted suicide generally requires one sudden and massive dose of drugs, to make sure that the patient does not have time to build up any resistance to the drugs' lethal effects.

The euthanasia movement has tried to obscure this difference for its own narrow purposes. Jack Kevorkian claimed in his assisted suicide and murder trials that he was only trying to end "suffering," though the means he used had no analgesic properties. Assisted suicide supporters filed many briefs with the U.S. Supreme Court two years ago, claiming that pain control and assisted suicide were practically indistinguishable. They lost this debate. As the Supreme Court has said:

[A] physician who withdraws, or honors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes and "to cease doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them." Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 368 (1996) (testimony of Dr. Leon R. Kass). The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, "must, necessarily and indubitably, intend primarily that the patient be made dead." Id., at 367. Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not....

Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently.(10)

Since November 1994, when Oregon first approved its law allowing physician-assisted suicide, all other states discussing the issue have reaffirmed this distinction. No state has followed Oregon's lead; several have passed new laws against assisted suicide, including provisions to emphasize the distinction between assisted suicide and pain control.(11)

What has happened to pain control in states enacting new bans, and in states that have rejected proposals to legalize assisted suicide? Time after time, actions to ban assisted suicide or to reaffirm existing bans have been followed by advances and improvements in pain control:

• When Rhode Island considered a new ban on assisted suicide in 1996, the state medical society objected that such a ban would have an adverse effect on physicians' willingness to use drugs like morphine for aggressive pain control.(12) But in fact, the opposite happened. In the year following enactment of the ban, according to official figures from the DEA, Rhode Island more than doubled its per capita use of morphine for pain control, rising from 46th among the states to 19th in morphine use. To this day Rhode Island's use of morphine is twice what it was before its ban was enacted. A similar, though less startling, improvement was seen in Iowa after its ban was enacted the same year. In fact, none of the states passing new bans on assisted suicide since 1994 have seen declines in morphine use, and several have seen dramatic improvements.
  
  
• The year after President Clinton signed the Assisted Suicide Funding Restriction Act, banning assisted suicide in all federal health facilities, advocates for palliative care reported that the Veterans Administration health care system had "made improving the quality of its end-of-life care a top priority" and implemented many positive changes in this field.(13)
  
  
• After a legalization measure was defeated by popular referendum in 1991, the Washington State Medical Association issued its first handbook ever for rank-and-file physicians on palliative care for dying patients. California's 1992 debate on a legalization measure, also defeated by popular vote, was the catalyst for a 1994 "Summit on Effective Pain Management" convened by the governor's office, which led to new policy changes to facilitate the prescribing of controlled substances for pain control (e.g., a new 1998 law ending the practice of triplicate prescription forms). Similarly, after Michigan enacted its ban on assisted suicide in 1998 it proceeded to enact several new laws to encourage physicians to practice effective pain control.

There is ample evidence for the observation, made by the American Medical Association and dozens of other medical groups in their 1997 Supreme Court brief in Quill, that "the prohibition on physician-assisted suicide provides health care professionals with a tremendous incentive to improve and expand the availability of palliative care." (14)

By the same token, as the National Hospice Organization noted in its brief in the same case, "the acceptance of assisted suicide as a way to deal with terminal illness would undercut further efforts to increase the public's awareness of hospice as a life-affirming option." (15) As Supreme Court Justice Breyer noted during oral argument in these cases, we have certainly seen this in the Netherlands, where hospice care is woefully underdeveloped: that country, which permits assisted suicide, had only three palliative care centers, compared with 185 in England which prohibits assisted suicide.(16)

Some may claim that Oregon is an exception to this rule, that legalization has actually led to great improvements in hospice and palliative care. But those claims are misleading and exaggerated, for the following reasons:

• Oregon was a leader in palliative care long before legalization, and almost all the alleged improvements took place before the new law took effect in the fall of 1997. Many of these improvements were made by Catholic and other organizations seeking to ensure that patients would not be railroaded into assisted suicide once the objectionable law took effect.
  
  
• Many similar improvements have occurred in states which have passed new bans on the practice, or simply debated and then defeated legalization measures. It is the debate itself that often focuses lawmakers' and physicians' attention on the need to improve palliative care.
  
  
• Whatever brief incentive this debate may have created for improving care of the dying in Oregon now seems to be giving way to a more ominous trend. The state of Oregon has begun to provide public funding for assisted suicide, while cutting back on access to some pain control drugs and other treatments for terminally ill patients; the same trend has been observed among private health insurers in the state.(17)
  
  
• The DEA's figures on per capita use of morphine may be instructive in this regard. Oregon has always ranked among the top states in such use, coming in 3rd in 1992 (two years before its legalization proposal was first approved). It rose to 2nd place in 1996, when the measure was still enjoined and assisted suicide was still illegal. But in both 1997 and 1998, Oregon was in 6th place – outpaced in morphine use by five states that have not legalized assisted suicide.(18) In 1999 Oregon was again in second place -- with first place going to New Hampshire, a state that explicitly bans assisted suicide and has recently once again defeated a legalization measure. These data do not provide any clear support for the claim that legalizing assisted suicide encourages the use of drugs for pain control; they certainly disprove the claim that prohibiting assisted suicide discourages pain control.

Conclusion
H.R. 2260 supports and promotes palliative care as an integral part of good health care. It also helps prevent federal support for a practice that is ultimately the enemy of good palliative care -- the deliberate use of medications to pervert the goals of medicine and intentionally help cause patients' deaths. For both these reasons it deserves support and swift enactment.

Fact sheets submitted as attachments to testimony:

Oregon's Ranking Among States in Per Capita Morphine Use

Legislative History of Federal Drug Law Supports Authority to Act Against Physician-Assisted Suicide

Past Cases Show DEA Authority to Act Against Assisted Suicide

Notes

1. United States Sentencing Commission, Guidelines Manual, p. 227, § 3A1.1.
2. The Oregon law has been found to violate constitutional guarantees of equal protection by the only federal court to review that law on the merits. See Lee v. Oregon, 891 F.Supp. 1429 (D. Or. 1995), vacated on other grounds, 107 F.3d 1382 (9th Cir. 1997), cert. denied, 522 U.S. 927 (1997). In its 1997 rulings on assisted suicide, the U.S. Supreme Court noted that it has yet to review the validity of this argument: "Lee, of course, is not before us ... and we offer no opinion as to the validity of the Lee courts' reasoning. In Vacco v. Quill ..., however, decided today, we hold that New York's assisted-suicide ban does not violate the Equal Protection Clause." Washington v. Glucksberg, 521 U.S. 702, 709 n. 7 (1997) (emphasis added). To this day no appellate court has ruled on the constitutionality of a law like Oregon's.
3. Washington v. Glucksberg, 521 U.S. 702, 729 (1997), quoting United States v. Rutherford, 442 U.S. 544, 558 (1979).
4. In particular, 1984 amendments to the CSA were designed "to make it easier for the [DEA] to suspend or revoke the authority of physicians ... who write or dispense prescriptions in a way that is threatening to the public health or safety," even in cases where they may not have been charged or convicted under state criminal statutes. Remarks of Rep. Gilman, 130 Cong. Rec. H9681 (daily ed. Sept. 18, 1984), quoted in Trawick v. Drug Enforcement Administration, 861 F.2d 72, 75 n.* (4th Cir. 1988).
5. Thus H.R. 2260's affirmation that the relevant section of the CSA does not authorize intentionally prescribing and dispensing federally regulated drugs for the purpose of causing death is restrained, and carefully focused on the legal anomaly created by the Attorney General's ruling.
6. "Registration of a physician under the Controlled Substances Act is a matter entirely separate from a physician's State license to practice medicine. Therefore, revocation of registration only precludes a physician from dispensing substances controlled under the Controlled Substances Act and does not preclude his dispensing other prescription drugs or his continued practice of medicine." S. Rep. No. 225, 98th Congress, 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3449 n.40.
7. Indeed, the bill's creation of a new medical advisory board to review particular cases was taken by critics as evidence that massive new enforcement actions were contemplated -- though sponsors intended this board as an independent panel of experts to be convened only at the practitioner's request, to provide an additional shield against medically uninformed enforcement actions.
8. Such effects are far rarer than was once thought. "No more than 1 per cent of patients who receive narcotics for pain develop serious respiratory depression." M. Angell, "The Quality of Mercy," in 306 New England Journal of Medicine 99 (January 14, 1982). "There is close to universal ethical approval of the bold use of pain-control measures even if their use risks decreasing the period of survival. Yet palliative-care experience shows this situation to be extremely rare. The drugs for pain relief are very safe. Palliative-medicine specialists do not agree that good pain relief shortens life. Pain relief without sedation is a central and achievable goal of palliative care." J. Scott, "Fear and False Promises: The Challenge of Pain in the Terminally Ill," in I. Gentles (ed.), Euthanasia and Assisted Suicide: The Current Debate (Stoddart: Toronto 1995) at 100.
9. See Compassion in Dying v. Washington, 79 F.3d 790, 856 (9th Cir. 1996)(Kleinfeld, J., dissenting), rev'd, 521 U.S. 702 (1997).
10. Vacco v. Quill, 521 U.S. 793, 801-02, 808 (1997).
11. Since 1994 new statutes against assisted suicide have been enacted in: Louisiana (1995); Rhode Island and Iowa (1996); Virginia, Michigan and South Carolina (1998); and Maryland (1999). Between 1997 and 1998, three states (Kansas, Oklahoma and South Dakota) added to their existing criminal prohibitions by providing civil penalties as well. The Michigan law did not include an explicit disclaimer on the legitimacy of pain control, but such legislation was later enacted separately; Jack Kevorkian's flagrant but effective misuse of the "principle of double effect" in his trials made Michigan legislators hesitant to include such language in their ban.
12. "Assisted suicide to be R.I. felony," American Medical News, Aug. 12, 1996 at 31.
13. S. Beckwith, "VA Makes Better End-of-Life Care a Top Priority," Last Acts Newsletter, Summer 1998 at 6.
14. Brief for Amicus American Medical Association, et al., at 22, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858).
15. Brief for Amicus National Hospice Organization at 18, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858) and Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110).
16. Oral Arguments in Vacco v. Quill, reprinted in 12 Issues in Law & Medicine 417, 437 (Spring 1997).
17. D. Gianelli, "Suicide opponents rip Oregon Medicaid's pain control policy," American Medical News, Sept. 28, 1998 at 7; S. Rojas-Burke, "Health Plan cuts threaten status of safety-net clinics," The Oregonian, Feb. 16, 1999; J. Hamby, "The Enemy Within," The Oregonian, Jan. 21, 1998.
18. These states prohibit assisted suicide by statute (Missouri, New Hampshire, Arizona) or by common law (Vermont). The sole exception is Nevada, which has no clear law on the matter. In 1998 the DEA rankings on morphine use for the other three states without a clear law were 40th (Wyoming), 48th (Utah), and 50th (Hawaii).