Federal Appeals Court Upholds Oregon Assisted Suicide Law -- DEA Threats to Prosecute Hindered Pain Control 5/28/04

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A three-judge federal appeals court panel Wednesday upheld an Oregon law allowing doctors to help terminally ill patients commit suicide. The decision said that Attorney General John Ashcroft's Justice Department did not have the authority to punish Oregon doctors involved in assisted suicides. In its opinion, the 9th US Circuit Court of Appeals in San Francisco had some unusually harsh words for Ashcroft, who, the court said, overstepped his bounds by trying to block the law.

But while the decision is being cheered by right-to-die advocates, it is also being hailed by people involved in the fight to ensure adequate pain management for patients and protection from the drug warriors for the doctors who prescribe for them. And some of the same people are involved. Eli Stutsman, the Portland attorney who helped argue the case, is also representing South Carolina pain management physician Dr. Deborah Bordeaux appeal the criminal conviction resulting from her pain practice, and is a major player in the development of a legal strategy promulgated by the Pain Relief Network (http://www.painreliefnetwork.org) to reverse the onslaught of federal prosecutions of pain doctors nationwide.

Though views within the pain advocacy community on assisted suicide in principle are not uniform, the two issues are linked functionally through the Controlled Substances Act (CSA), the law which enshrines criminal prohibition of drugs at the federal level. Just as police attempts to keep opioid drugs (also known as "narcotics") away from addicts and recreational users end up discouraging prescription of those drugs to patients who need them for pain control, threats to enforce the CSA against physicians prescribing opioids (or other) drugs for assisted suicide have had the same effect.

But there is also a more visceral link: Threats to Oregon's assisted suicide law, now in place for seven years, appear to be tied to reports of greater suffering by dying Oregon patients. At the end of 1997, after the Drug Enforcement Administration (DEA) threatened to punish Oregon doctors who helped patients commit suicide, a statewide study found a sharp increase in the level of pain reported by terminal patients. While the study's lead investigator, Susan Tolle, an expert in end-of-life care at Oregon Health Sciences University, was careful in drawing conclusions, she suggested to the Associated Press at the time that publicity over the DEA threats was the cause in the upsurge of suffering.

The connection between anti-assisted suicide enforcement and under-treatment of pain has wide recognition within the medical community. For example, in 1997, a bill entitled the "Lethal Drug Abuse Prevention Act," sponsored by Sen. Don Nickles (R-OK) and Rep. Henry Hyde (R-IL), would have authorized the DEA to revoke or suspend the federal prescription license of a physician who "intentionally dispensed or distributed a controlled substance with a purpose of causing or assisting in causing" suicide. The bill was defeated by a coalition of more than 50 medical and patient groups, who successfully argued that more DEA scrutiny and evaluation of medical decisions would even further discourage physicians from being willing to treat pain. Nickles and Hyde tried again in 1999, including language that would have asserted the supremacy of the CSA over Oregon state law in a larger Pain Relief Promotion Act of 1999. While the introduction of that bill was initially met with hopeful reactions by some pain patient advocates, the motives of the Republican pair were suspect, and it died, due in some part to opposition to the attack on Oregon's right to choose to have physician-assisted suicide.

Under the Oregon law, first passed as a voter initiative in 1994 and reaffirmed in 1997, adults whose terminal diseases are likely to kill them within six months may obtain lethal drugs from doctors in order to kill themselves. The law allows Oregon doctors to prescribe, but not to administer the lethal dosages. About 30 Oregonians have availed themselves of the law to end their suffering each year since it took effect, according to state health department records.

Ashcroft, who assumed the attorney general post in 2001 amidst controversy, and whose opposition to assisted suicide stems from his interpretation of fundamentalist Christian doctrine, opposed the Oregon law from the beginning. In 1997, while still a US senator from Missouri, Ashcroft asked then Attorney General Janet Reno to rule that doctor-assisted suicide violated federal law and that doctors who prescribed lethal drugs should face federal reprisals and prosecution under the CSA. Reno refused, arguing that the states should be able to regulate their own doctors. (Inconsistently, Reno attempted to use the same CSA club against doctors who recommended medical marijuana to patients in states where it is legal. In that case, Conant v. McCaffrey, the 9th Circuit also shot down the DC overreaching.)

After becoming attorney general, Ashcroft issued a directive threatening to prosecute doctors under the CSA. But that directive was in force for only a few months before it was put on hold by a preliminary injunction issued by a federal district court at the behest of the state of Oregon, a doctor, a pharmacist, and several terminally ill patients. Now, barring an appeal to the full 9th Circuit or the US Supreme Court, the Ashcroft directive is dead. The Justice Department has not yet announced if or where it will appeal.

The 9th Circuit certainly doesn't appear too friendly to the attorney general. In addition to blocking the effort to punish doctors who recommend medical marijuana, the 9th Circuit also ruled against him in Raich v. Ashcroft, the case brought by California medical marijuana patients seeking relief from federal persecution. In that ruling, the court held that the CSA was unconstitutional when applied to medical marijuana patients not engaged in the sale or interstate distribution of marijuana.

And the court laid into Ashcroft again on Wednesday. "The attorney general's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law," Judge Richard C. Tallman wrote for the majority. "The principle that state governments bear the primary responsibility for evaluating physician-assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the primary regulators of professional medical conduct," Judge Tallman wrote.

Oregon officials cheered the ruling. It was "a slam-dunk victory for the state of Oregon," said Kevin Neely, a spokesman for Oregon Attorney General Hardy Myers. "Decisions regarding medical practice are decisions for the state and the state alone to make," he told the New York Times. "Attorney General Ashcroft simply abused his authority in this matter."

"It's a wonderful decision, of course," said Eli Stutsman, the Portland attorney who helped argue the case. "This is a huge setback for the attorney general and, I suspect, a huge disappointment as well. I am very pleased with the narrowness of the opinion," he told DRCNet. "It doesn't push the envelope on constitutional issues, but is based almost entirely on statutory interpretation, which makes the opinion stronger and more resistant to further review. The essence of the opinion is that the attorney general exceeded the language of the statute, the intent of Congress, and his own statutory authority."

Elation over the ruling was not limited to persons interested in physician-assisted suicide. "This is a big win," said Dr. Frank Fisher, the California physician who just weeks ago was exonerated in a five-year legal battle to defend himself from charges he improperly prescribed opioid pain relievers (see interview this issue). "While not directly concerning the pain issue, this decision represents a victory in keeping law enforcement out of the regulation of the practice of medicine, specifically around the issue of controlled substances."

"This is a huge win for the state regulation of medical practice," said Siobhan Reynolds of the Pain Relief Network. "I wonder if Ashcroft is trying to regulate medical practice through the application of the CSA in any other way?" she asked rhetorically.

The Ninth Circuit encompasses the nine western states of Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon,
Washington, and Guam and the Northern Mariana Islands. (Photo and
info from http://www.ce9.uscourts.gov.)

Attorney Stutsman, activist Reynolds, and Dr. Fisher are part of a growing movement to defend doctors and patients from overweening federal interference in the practice of medicine. In recent years, dozens of physicians have been criminally charged as drug dealers for their cutting edge methods of pain treatment using opioids, such as Oxycontin. "In the last five to seven years, we have seen a new effort to regulate and enforce the standard of medical care," said Stutsman, who is representing convicted South Carolina physician Dr. Deborah Bordeaux in the appeal of her conviction. "The DEA introduces standard of care evidence that is very subjective and cites very recent cases that have not yet been challenged. It's a new dynamic."

And it's a departure from the past, he added. "Traditionally, if you go back 10 or 20 or 30 years, you find that enforcement of the drug laws in medicine targeted drug diversion and drug traffic-king, but what has happened recently is that those prosecutions have been subsumed by what are essentially civil medical negligence claims parading as a criminal prosecution. A physician could have been negligent, but that is not necessarily a crime."

The problem here is not bad medicine but bad law and bad law enforcement, said Stutsman. "If these guys were held to older precedent, they would hardly be able to get their evidence in court," he said. "While the feds could rely on unchallenged recent opinions, I have 90 years of jurisprudence to rely on. I think we can turn this back, but it'll be a lot of work. Their case is weak, but with all the power and resources they have, even a weak case is not that weak."

The Justice Department's efforts to use expansive interpretations of the CSA to thwart state's rights -- be it for medical marijuana, pain control or assisted suicide -- has been dealt another blow.

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Issue #339, 5/28/04 Editorial: Judge the System | California Senate Votes to Bar Random Drug Tests in Schools | DRCNet Interview: Frank Fisher, MD | Medical Marijuana Minds Gather in Charlottesville | Federal Appeals Court Upholds Oregon Assisted Suicide Law -- DEA Threats to Prosecute Hindered Pain Control | Newsbrief: Camden Opens Second Front in New Jersey Needle Exchange Rebellion | Newsbrief: Needle Exchange Comes to Paraguay | Newsbrief: Ohio Man Deported for Minor Marijuana Conviction Found Murdered in Brazil | Newsbrief: Life for Meth | Newsbrief: This Week's Corrupt Cops Story | Newsbrief: Kentucky Prosecutor Offers to Drop Charges in Return for Sex -- X-Rated Romp Caught on Video | Newsbrief: Supreme Court Expands Police Search Powers Again -- Cops Can Now Search Parked Cars Incident to Arrest | This Week in History | Media Scan -- Too Many to List in the Headline This Time! | 3rd Annual Drug War Vigil Film Festival and Contest | Job Opportunities at MPP | Job Opportunity: Campaign Coordinator for Marijuana Policy Reform, ACLU Drug Policy Litigation Project | The Reformer's Calendar
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