Oregon’s Troubles Just Beginning?
Almost four months after Oregon’s new assisted suicide law took effect, initial legal and practical problems have only become more obvious.
A major problem still facing Oregon physicians is the prospect that prescribing lethal drugs for assisted suicide could violate the federal Controlled Substances Act notwithstanding the new state law. U.S. attorney general Janet Reno has yet to resolve this issue. Senator Ron Wyden (D- OR). who oppose federal intervention, says that Ms. Reno’s staff has concluded that the Drug Enforcement Administration (DEA) lacks authority to act against physicians who assist suicides; but the Justice Department says that the White House, the DEA and others are still being consulted [Catholic Sentinel (Portland) 1/30/98]. As of this writing, 68 house members and 28 Senators are known to have urged Ms. Reno to uphold the DEA’s authority. The Catholic Health Association of the United States recently urged President Clinton to uphold the DEA’s authority to prevent assisted suicide, while ensuring that the law is enforced carefully so as not to discourage the legitimate use of drugs for pain relief {PR Newswire, 2/19).
Also still unresolved is a dispute that arose in November between Oregon pharmacists who insist on being informed when a prescription is intended for assisted suicide, and the Oregon Medical Association, which claims this would breach patient “confidentiality.” The Board of Pharmacy points out that without notification, pharmacists cannot exercise their right of conscientious objection. Physicians say that notification would expose them to public scrutiny and possibly to Federal drug charges. After the medical association petitioned the Oregon Court of Appeals to rescind the Board of Pharmacy’s notification rule, Governor John Kitzhaber intervened in February to ask the State Board of Medical Examiners to craft a compromise [The Oregonian, 2/16]
The state of Oregon itself has become so zealous in guarding the privacy of assisted suicide decisions that some observers, like ethicist Courtney Campbell of Oregon Sate University, call its reporting provisions ‘”completely inadequate to the point of being irresponsible and useless for public policy purposes” [American Medical News, 2/9]. Anecdotal reports from doctors and counselors suggest that at least 10 Oregonians have formally requested assisted suicide; but the Oregon Health Division will not even reveal the number or location of assisted suicides until it has amassed enough cases to render it impossible to identify individuals. [The Oregonian, 2/19]
Meanwhile, the Oregon Health Services Commission has scheduled a meeting at Portland State University on February 26 to discuss the placement of physician aid in dying on the prioritized list of health services” in Oregon’s Medicaid rationing plan. The Commission says it is not interested in public comment on whether to subsidize assisted suicide for the poor, but only in comments on where to place this new service” on the state’s priority list, since the former question in its view was settled in November. In fact, public funding to assist the suicides of the poor was no part of the ballot question.
Even as Oregon takes its first clumsy steps toward institutionalizing assisted suicide, the practice’s basic legal status remains unsettled. On February 17, U.S. District judge Michael Hogan heard arguments aimed at reviving the 1994 law suit against Oregon’s statute. While that suit was dismissed last year by the Ninth Circuit Court of Appeals, plaintiffs say the court did not address whether the assisted suicide law inflicts a “stigmatic injury” on terminally ill persons by branding their lives as less worth protecting than others. They also seek to add a new plaintiff, 57-year-old lung cancer patient Peter L. Begin, who has standing to sue because a doctor has told him he has less than six months to live. Judge Hogan is not expected to rule until April [The Oregonian, 2/18]. Life at Risk, January-February, 1998
VERBATIM: Oregon’s New Guidebook on Assisted Suicide
In 1995, after Oregon voters first approved a law allowing physician-assisted suicide, the Center for Ethics in Health Care at Oregon Health Sciences University convened a “Task Force to Improve the Care of Terminally-Ill Oregonians.” One of the Task Force’s goals was to develop “professional standards” related to the new law. On March 3 of this year the Task Force released the fruit of its labors, The Oregon Death With Dignity Act: A Guidebook for Health Care Providers. Excerpts follow:
We recognize the controversy regarding terms to describe the provisions of the Oregon Death With Dignity Act. While some professionals use the term “physician-assisted suicide,” others prefer the term “physician aid-in-dying.”… Because of our neutral position, the Task Force does not intend to fuel this debate… We have chosen to use the term “physician-assisted suicide” because it underscores both the physician’s responsibility in providing medication to end life under the Act and the patient’s voluntary choice to end his/her life by self-administering the medication. (p.4)
Although requests for physician-assisted suicide are often attributed to uncontrolled pain, research has shown that other physical symptoms, psychological or existential distress may be equally or more important… the attending physician should seek to understand what constitutes unacceptable suffering in the patient’s view. (p.5)
An individual provider, such as a physician or a hospice nurse, who is opposed to physician-assisted suicide may want to refrain from discussing it with an inquiring patient. However, the desire to avoid discussion of what is morally reprehensible to the provider may prematurely stifle discussion of the patient’s overall needs … If’ after a full discussion with the patient, the provider cannot continue to care for the patient, the provider must transfer care so that the needs of the patient can be met and the continuity of the patient’s care maintained. To do otherwise would be abandonment. (p.7)
No hospice in Oregon will refuse to admit or care for a patient or deny support to a patient’s family because the patient intends to end his/her life under the Death With Dignity Act. While hospices differ in the extent to which they will participate, some hospices have established policies that will allow their employees to be at the bedside of a patient at the time a lethal dose of medication is self-administered … Many hospices are developing guidelines to support patients who choose to discontinue nutrition and hydration as a means of hastening death. (p. 12)
Under the Act, physicians are not allowed to provide a lethal injection if the patient’s self- administered medication does not result in death. Such an act could leave the physician open to homicide charges and disciplinary action… A health care provider may be present when the patient takes the medication to end life, but the level of assistance he/she may give to the patient is not clear. (pp.25, 27)
Although the Act calls for a decision that the patient is or is not competent to request a lethal prescription, in clinical practice, competency exists on more of a continuum. Competency standards specific to the decision to seek a prescription to end life have not been developed…. The presence of depression does not necessarily mean that the patient is incompetent. (pp.30, 31)
Predicting an effective lethal dose and the speed with which it will cause death for an individual with any degree of certainty is difficult. … The patient and anyone else who will be present when the patient self-administers the medication must be informed of the expected time line with oral ingestion; specifically, of the possibility of coma for several hours before death or that, on rare occasions, death may occur up to 24 hours after ingestion of the medication. (p.33)
[I]nformation regarding the identity of patients, health care providers, and health care facilities obtained by the [Oregon Health] Division with respect to compliance with the Act shall be confidential. (p.44) Life at Risk, March, 1998
Oregon: Further Out on a Limb
Despite local opposition and contrary policy trends in other states, Oregon has taken more steps to institutionalize doctor-assisted suicide.
On February 26, the Oregon Health Services Commission voted 10-to-I to add assisted suicide to the priority list of treatments provided to Medicaid patients under the Oregon Health Plan. Lethal drugs will be funded as an integral part of “comfort care,” ranking 260th on Oregon’s priority list of 745 services. While federal law prohibits use of federal Medicaid funds for assisted suicide and related expenses or for any benefits package that includes it, the Commission said it could integrate the practice into its health plan so long as it is paid for solely with state funds. [The Oregonian, 2/27/98].
While the Commission said denial of public funds for assisted suicide would “discriminate” against the poor in a state where the practice is legal, this stance was challenged from several directions. No one representing poor Oregonians or those who serve them testified in favor of the funding, while some — such as Catholic Charities and the Northwest Seasonal Workers Association — testified against it. In an opinion piece in the state’s largest newspaper, Archbishop John Vlazny of Portland and Robert J. Castagna of the Oregon Catholic Conference asked: “What could be more discriminatory to a class of poor people, dependent on a public health program, than to suggest to them that the public is willing to help pay for their deaths rather than their continued medical care?” [The Oregonian, 3/15] Even Ron Adkins, pro-suicide activist and husband of Jack Kevorkian’s first assisted suicide client, agreed: “Many Oregonians believe suicide, in any form, is morally wrong,” he wrote. “To force them to pay for my choice, or yours, is also morally wrong” [The Oregonian, 3/3].
Institutionalization has nonetheless continued, with the state’s largest academic health center preparing a “guidebook” for health professionals [see p.31 and six health experts planning a fact- finding trip to the Netherlands to garner advice on how to move further [The Oregonian, 3/6].
On March 25 the pro-suicide group Compassion in Dying announced that a woman with breast cancer in her mid-80s had become the first person to die from a drug overdose prescribed in accord with the Oregon law. In an audiotape released by the group, the woman said she could not see herself “living a few more months like this,” because she was once active but had become too weak for gardening or other favorite activities. Compassion in Dying said she died in her Portland home, surrounded by family and attended by a physician located by the group. Reportedly the woman’s own physician had refused to prescribe lethal drugs, and a second physician she consulted had concluded that her request for death was due to depression. While pro-euthanasia forces in Oregon gave subdued reactions to the woman’s death, Hemlock Society USA was less restrained: “Hooray for the people of Oregon,” said Hemlock executive director Faye Girsh on hearing the news. “I’m in awe. This is an historic moment” [AP, 3/25; The Oregonian, 3/26].
The unnamed elderly woman’s status as first patient to die under the law was soon questioned, as an unidentified Portland woman told press in a telephone interview that a close relative with cancer had died under the assisted suicide law before March 25. The physician in that case was provided by the state Hemlock Society. Because neither family wanted more publicity and state officials are committed to secrecy in such cases, only details selected by pro-suicide advocacy groups could be learned — a fact that provoked new calls for more public accountability regarding assisted suicide cases. Barbara Coombs Lee of Compassion in Dying rejected calls for public scrutiny: “The public doesn’t deserve to know anything except to know the law is available and the rules are being followed” [The Oregonian, 3/29]. Life at Risk, March, 1998
Assessing the Impact of Oregon’s Law
While Oregon’s law allowing physician assisted suicide took effect last fall, its long-term impact remains unclear. There is even some confusion about its immediate impact.
The first confusion involves the actual number of assisted suicides, due to the veil of secrecy drawn by state officials across the practice. Two cases were announced by pro-suicide groups in late March, but details were sparse and the cases were not confirmed by state officials. Reports of a third case occurring in April reached news outlets in May, but no one directly involved could confirm the report. The Oregon Health Division says it will release some statistical information only after ten completed cases are officially reported. [The Oregonian, 5/9/98].
Together the Hemlock Society and Compassion in Dying say they have received 42 requests for assisted suicide. Hemlock says it was contacted by 27 people, of whom 18 were ineligible (because they were not terminally ill or not Oregon residents), four obtained hospice care after talking with Hemlock, two died before obtaining a lethal prescription, and two still wanted assisted suicide but had not begun the formal process. Compassion in Dying says it received 15 requests from seriously ill patients, of whom died of natural causes, three were ineligible, and seven are at some stage of the process [Id., 4/24].
Noting that even this information is hearsay from ideologically committed groups, many observers have called for more better reporting of assisted suicides, arguing that this is needed to assess the practice and prevent coercion of vulnerable patients. The Oregon legislature has assigned a point committee to study the law and suggest changes; co-chair Senator Ken Baker says he favors better reporting, as well as mandated psychological review of patients and notification of families [Catholic Sentinel (Portland), 5/15].
Oddly, the Oregon Medical Association, which favored rescinding the entire assisted suicide law during last year’s statewide campaign, now opposes even minimal reforms of this kind. At its house of Delegates meeting in late April, the association voted to oppose mandated psychological review and to favor keeping prescriptions under the act “confidential” –making it difficult for pharmacists to know a drug’s purpose or to exercise a right of conscientious objection [American Medical News, 5/25].
The state legislative committee has held no hearings as yet on these issues, saying that they may be rendered moot by federal action. U.S. attorney general Janet Reno still has not ruled on whether prescribing controlled substances for assisted suicide is contrary to federal drug laws. Even if she rules that it is not, the issue may be addressed by Congress: 138 House members and 37 Senators have written to Reno urging her to uphold the Drug Enforcement Administration’s authority to prevent the use of federal prescribing licenses to assist suicides.
The DEA’s legal case was strengthened on May 14 when a U.S. District Court upheld its authority to close down ‘cannabis clubs” in California, despite passage of a state referendum allowing the medical use of marijuana. “Federal law supersedes state law,” says Justice Department spokesman Gregory King [Chicago Tribune, 5/27].
Assisted suicide advocates in Oregon are not taking this lying down. The Oregon Death with Dignity Legal Defense and Education Center, founded by the sponsors of the Oregon assisted suicide initiative, has hired the Washington D.C. public affairs firm Bass and Howes to lobby against congressional action on this issue [Washington Post, 5/21]. The firm was previously best known for its “abortion rights” efforts, including a campaign to have the abortifacient drug RU-486 manufactured and approved in the United States. Life at Risk, May, 1998