Attorney General takes issue with physician-assisted suicide laws

Oregon is the center of a states’ rights fight

As a federal appeals court considers whether to uphold U.S. Attorney General John Ashcroft’s directive nullifying Oregon’s state law allowing physician-assisted suicide, medical and legal experts are divided over whether Ashcroft’s action could have more far-reaching consequences than its stated intent.

On May 7, the U.S. Ninth Circuit Court of Appeals heard arguments from attorneys for the state of Oregon and the U.S. Department of Justice over whether the federal government or individual states have the authority to regulate how controlled substances are used.

In November 2001, Ashcroft issued a directive stipulating that physicians who prescribe barbiturates with the intention of allowing a patient to end his or her life would be stripped of their federal prescription licenses. The directive, if enforced, would effectively nullify Oregon’s Death with Dignity Act, which allows physicians to prescribe a lethal dose of drugs at the patient’s documented request.

A federal judge ruled against Ashcroft in April 2002 contending that states, not the federal government, have the right to regulate medical practice. Attorneys for the federal government appealed the decision to the Ninth Circuit. A decision either way is expected to be appealed to the Supreme Court.

Some fear the directive, if upheld, will amount to a drastic reinterpretation of the powers the federal government has under the Controlled Substances Act.

"This is an act that was written in 1974 and created to prevent drug diversion. Its function is to keep drugs off the streets — a worthy cause — but it has little to do with what we are discussing," says Susan Tolle, MD, director of the Center for Ethics in Health Care at Oregon Health Sciences University in Portland. "The current case comes down to who has the authority to determine what a legitimate use of a particular controlled substance is. Is it the federal government or the states?"

The Controlled Substances Act allows physicians holding federally approved prescribing licenses permission to prescribe the specified substances for "legitimate medical purposes." The law does not specify which purposes are appropriate for which drugs, but Ashcroft contends that the law permits the federal government, using the discretion of the U.S. attorney general, to determine which uses of controlled substances are appropriate medical practice and which are not. Opponents argue that "legitimate medical purpose" is determined by the states, which regulate medical practice within their borders by the authority of state medical boards.

"I think it also raises the question of whether you want them [the federal government] to make decisions about which other uses of medications are legitimate," Tolle adds. "I can think of many other uses that might be questioned."

Law’s foes welcome challenge

Many physicians opposed to assisted suicide support Ashcroft’s challenge and criticize Oregon’s law for what they feel is an inappropriate association of suicide with the legitimate practice of medicine.

The major American medical professional organizations, including the American Medical Association, have stated repeatedly that physician-assisted suicide is fundamentally incompatible with the physician’s role as healer and would pose serious societal risks, says Kenneth Stevens, MD, president of Physicians for Compassionate Care, one of the leading physician groups opposed to Oregon’s Death with Dignity Act.

"Physician-assisted suicide is not a legitimate medical purpose," he says. "It represents a reversal of the proper role of physician as a healer, comforter, and consoler. By participating in assisted suicide, physicians are providing the direction and means for a patient’s self-destruction."

In Stevens’ view, use of any medication with the intent of causing a patient’s death cannot be considered a legitimate use because the drug is not intended to treat a medical problem, but to end the patient’s life.

Upholding Oregon’s law will only allow other states to issue their own exceptions to the Controlled Substances Act, he argues.

Stevens disagrees with those who believe that upholding the directive would discourage aggressive use of medication to treat pain.

Surveys of patients choosing physician-assisted suicide in Oregon indicate that untreated pain is not a primary reason patients choose that option, he says. And the drugs prescribed and used in Oregon for assisted suicide have been barbiturates, which are sedatives, not medications, to treat pain.

"The attorney general has reassured the physicians of Oregon that the federal Drug Enforcement Administration considers the proper prescribing of pain medications with the purpose of pain control a legitimate medical practice, even if the pain medication may result in death," Stevens says.

However, physicians’ perception that the federal government will closely scrutinize their use of controlled substances may lead many to be extremely conservative with their use — whether it is barbiturates or narcotics, says Tolle.

"I am not advocating and I have not been an advocate of the [assisted suicide] law," she explains. "I don’t take a stand on whether Oregon’s law is a good or bad thing, and I don’t tell other states to do it or not do it. My interest is if you do things to change such laws, will other unintended consequences happen?"

The Center for Ethics in Health Care conducts a great deal of research into end-of-life care in Oregon, Tolle notes. An ongoing research program is devoted to monitoring how many people choose assisted suicide in Oregon, why they report choosing it, and the potential social, economic, and demographic factors that might affect their decision.

In addition, other researchers survey patients and families about other issues in end-of-life care — the frequency that advance directives are developed and implemented, how well care planning is performed, and how well terminal patients’ pain is managed during the final weeks of life.

In almost all areas, Oregon residents report more satisfaction with the care they receive compared to residents of other states, with the notable exception of one key area, Tolle says.

"We continue to see large numbers of people reporting severe, untreated pain and suffering at the end of life," she says. "As many studies as we’ve done, and efforts we’ve made, I can find no proof that we have in any way improved the treatment of pain at the end of life."

Statewide surveys of physicians and other health care providers indicate that the fear of being investigated for prescribing patterns is a large reason many do not aggressively prescribe medication, Tolle says. In Oregon, the only state that disciplines doctors for undertreatment of pain, that is a surprising finding, she adds.

In addition, she notes, the number of people choosing assisted suicide each year has remained relatively stable — approximately one per 1,000 deaths. Although the total number of assisted suicides last year was 17 higher than the year before, overall, the prevalence has remained the same.

Yet, no one is seeing a reduction in the number of people suffering at the end of life, Tolle says.

"That is a huge problem here and everywhere, and I don’t think you can find anyone to argue with me," she adds. "It is not the overtreatment of pain that we are finding is a problem. It is not the lax and indiscriminate use of narcotics that we are finding. It is that we have large numbers of people experiencing severe pain and suffering at the end of life."


Susan Tolle, MD, Oregon Health & Science University, Center for Ethics in Health Care, 3181 S.W. Sam Jackson Park Road, Mail Code UHN-86, Portland, OR 97201-3098.

Kenneth Stevens, MD, Physicians for Compassionate Care Educational Foundation, P.O. Box 6042, Portland, OR 97228-6042.