Testimony of John A. Kitzhaber, M.D.

Governor, State of Oregon



before the



Subcommittee on the Constitution,

Committee on the Judiciary

United States House of Representatives



on



H.R. 4006



July 14, 1998

Washington, D.C.





Introduction:



Chairman Canady, members of the Subcommittee on the Constitution, for the record my name is John Kitzhaber, Governor of the State of Oregon. I appreciate this opportunity to appear before the Subcommittee today to offer the perspectives of the State of Oregon on H.R. 4006, the "Lethal Drug Abuse Prevention Act of 1998."



H.R. 4006 was introduced, and this hearing is being conducted, largely in response to statutory initiatives adopted by Oregon voters not once, but at two separate statewide elections. I appear before you today pursuant to the obligation of my office under the Constitution of Oregon that provides that I "shall take care that the Laws be faithfully executed." [Article V, Sec. 10]



The public policy issues surrounding H.R. 4006 are complex, serious and profound. On one level is the controversial and emotional policy debate alternatively referred to as "death with dignity," "physician assisted suicide" or "physician aid in dying." Equally complex, serious and profound are the issues of the appropriate role of the federal government in the regulation of the practice of medicine and the fundamental principles on which our federal system of government was established under the United States Constitution.



My comments today, Mr. Chairman, will focus on three areas: 1. A brief recapitulation of recent history of physician assisted suicide legislation in Oregon; 2. Summary observations on the consequences of H.R. 4006 on the practice of medicine and health policy in the U.S.; and 3. Concluding thoughts on the fundamental policy debate that should occur in light of the introduction of H.R. 4006.



Physician Assisted Suicide Legislation in Oregon:



The Constitution of the State of Oregon provides that "[t]he people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly." [Article IV, Sec. 1]



On November 8, 1994, at a statewide general election, such an initiative, known as Ballot Measure 16, was placed before the Oregon electorate. Ballot Measure 16's title stated: "Allows Terminally Ill Adults to Obtain Prescription for Lethal Drugs." With a general election turn-out of 68%, Ballot Measure 16 was approved by a margin of 51.3% in favor, 48.7% opposed. [627,980 Yes; 596,018 No; 1,223,998 total votes cast on Measure 16.]



A federal court injunction stopped implementation of Ballot Measure 16 and opened a lengthy series of appeals at various levels of the federal judiciary during 1995-96. In 1997, the 69th Oregon Legislative Assembly considered several legislative proposals relating to physician assisted suicide, culminating in the passage of H.B. 2954-A which repealed the statutes enacted by initiative at the November, 1994 general election. The provisions of H.B. 2954-A included that "[t]his Act shall be submitted to the people for their approval or rejection at a special election held throughout this state on November 4, 1997." [H.B. 2954-A, Sec. 3].



At the November, 1997 statewide special election, Ballot Measure 51 was considered by the Oregon electorate. Ballot Measure 51's title stated: "Repeals Law Allowing Terminally Ill Adults to Obtain Lethal Prescription." With a special election turn-out of 60%, Ballot Measure 51 was rejected by a margin of 59.9% opposed to repeal, 40.1% in favor of repeal. [666,275 No; 445,830 Yes; 1,112,105 total votes cast on Measure 51.]



This second Oregon plebiscite prompted passage by Congress and signing by the President of the Assisted Suicide Funding Restriction Act in late 1997. It also led to requests of Attorney General Reno to review "whether the Department of Justice, through the Drug Enforcement Administration, may invoke the Controlled Substances Act, 21 U.S.C. §§ 801-971, to take adverse action against physicians who assist patients in ending their lives by prescribing controlled substances." Attorney General Reno's opinion, issued on June 5 of this year and the substance of which I am certain you are familiar, led to the introduction of H.R. 4006 and its companion in the Senate, S. 2151.



My reason for this brief recapitulation of recent history is to emphasize that current Oregon law permitting physician assisted suicide was not promulgated by administrative action of the Executive Branch nor was it a "mere" statute originating through action of the Legislative Branch. The process by which physician assisted suicide was determined to be within the "legitimate practice of medicine" was the most democratic form of law-making available to the citizens of Oregon, the initiative and referendum. At two statewide elections, a clear majority of the Oregon electorate voted to permit physician assisted suicide. As Governor, responsible under Oregon's Constitution for the Executive Department, it is my obligation to "take care that the Laws be faithfully executed."



Consequences of H.R. 4006:



Mr. Chairman, I would now like to offer a few observations, in summary form, on the consequences if H.R. 4006 becomes law. Notwithstanding my concerns relating to constitutional questions - issues of federalism - which I will summarize at the end of my testimony, I view with great alarm, as a Governor and a licensed physician, the policy implications of H.R. 4006.



First, this legislation is an unprecendented expansion of federal power over the practice of medicine. The Controlled Substances Act (CSA) was adopted by Congress to "keep legally available controlled substances within lawful channels of distribution and use." Through the power to revoke prescriptive privileges and the review function of the Medical Review Board on Pain Relief, the Attorney General is given substantial power to determine what constitutes legitimate medical practice, especially as it relates to pain management practices generally and those practices in end-of-life care specifically.



Second, the standards for denial or revocation of DEA registration raise several concerns:



A denial standard based on evidence of a physician's intentions may substantially chill the exercise of free speech rights. Will the policy opinions of physicians be used as "clear and convincing evidence" of their medical intentions?



This "intention" standard could substantially influence medical practice with respect to aggressive palliative care due to fear that a physician's views will be used as evidence of an intention to practice euthanasia under a different label.



This subjective standard confounds the "sorting out" of a prescriber's purposes or intentions when death is unintended but foreseeable; physicians are placed at uncertain risk of denial or revocation by DEA.



The proposed standard may substantially restrict the permissibility of the "double effect": Death is often the foreseeable, even expected, result of medication sufficient to control excruciating pain. The U.S. Supreme Court observed in Vacco v. Quill that "painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or maybe, only to ease his patient's pain," and that "the law distinguishes actions taken 'because of' a given end from actions taken 'in spite of' their unintended but foreseen consequences." Nonetheless, H.R. 4006 establishes a violation if the purpose was to cause or assist in the death of a patient for any reason.



Conclusion:



Mr. Chairman, I believe that persons of good will can, and do, legitimately disagree on the merits of physician assisted suicide as a public policy. I further believe that Congress has the right to restrict the use of federal funds pursuant to legislation such as the Assisted Suicide Funding Restriction Act.



Whether intended or not, H.R. 4006, through its amendment of the Controlled Substances Act, "displaces the states as the primary regulators of the medical profession" and supercedes "a state's determination [of] what constitutes legitimate medical practice." Furthermore, H.R. 4006 achieves its policy objective - of prohibiting states, through their constitutional processes, from permitting physician assisted suicide - by indirection. It does not say to the American people, "Suicide at the end of life, assisted or otherwise, is not legally condoned in this country!" Rather, H.R. 4006 establishes a less-than-benign process of intimidation, threat or significant professional risk to practicing physicians attempting to alleviate the pain and suffering of terminally-ill patients.



If the actions of the people of Oregon, at two statewide plebiscites, are deemed by Congress to be unconscionable; if, in its collective wisdom, Congress rejects the "earnest and profound debate about the morality, legality, and practicality of physician assisted suicide" that has occurred under Oregon's democratic form of government, then adopt an explicit policy on physician assisted suicide. Don't use the artifice of an amendment to the Controlled Substances Act to establish a precedent-setting intervention by the Federal government into the practice of medicine. Don't intimidate and put at risk physicians when your true objective is altering the choices available to terminally ill patients.



Framing the issue from this perspective would, at least, engage the American public in a dialogue about the real issue. Whether you agree or disagree with Oregon's current policy, we've had an "earnest and profound debate" that has, in my opinion, enriched our democratic society.



I would be happy to answer any questions the Subcommittee members may have.

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