NATIONAL LEGAL CENTER

FOR THE MEDICAL DEPENDENT

& DISABLED, INC.

TESTIMONY OF THOMAS J. MARZEN

ON H.R. 2260, THE "PAIN RELIEF PROMOTION ACT OF 1999"

Mr. Chairman, my name is Thomas J. Marzen, and I am General Counsel of the National Legal Center for the Medically Dependent and Disabled. The National Legal Center is a public interest law firm that supports the medical treatment rights of persons with disabilities and serious medical conditions. I testify in favor of H.R. 2260, the "Pain Relief Promotion Act of 1999" (the "Act"). In particular, I will address elements in the Act that would clarify existing law by specifically stating that the use of controlled substances to alleviate pain and discomfort is a legitimate medical practice under the federal Controlled Substances Act ("CSA"), while their use to commit euthanasia or to assist in suicide is not. I will also describe enforcement of the CSA in Oregon in the wake of the Pain Relief Promotion Act. Finally, I will address particular concerns that have previously been raised by Subcommittee Representative Frank.

Substantive Amendments to the Controlled Substances Act

In addition to provisions authorizing expenditure of federal funds to improve palliative care, the Pain Relief Promotion Act also contains clarifying amendments to the federal Controlled Substances Act which provide that: 1) there is no exception authorizing use of controlled substances for assisted suicide or euthanasia, and 2) that pain relief is a legitimate medical purpose under the CSA even if the use of controlled substances for this purpose increases the risk of death. The need for these clarifications was occasioned by the determination of the Attorney General that the Controlled Substances Act does not authorize enforcement actions for the use of controlled substances for assisted suicide or euthanasia insofar as these practices are permitted by state law. See June 5, 1998, Correspondence of Attorney General Janet Reno to Hon. Henry Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives, attached as Exhibit A.

Under this ruling, federal enforcement actions would continue to be appropriate when controlled substances are used in violation of state laws that proscribe assisted suicide. As the Attorney General stated, "Adverse action under the CSA may well be warranted in other circumstances: for example, where a physician assists in a suicide in a state that has not authorized the practice under any conditions, or where a physician fails to comply with state procedures in doing so." Id. at 4.

Both at the time of the Attorney General's ruling and at present only one state, Oregon, has explicitly legalized the use of controlled substances for any killing purpose in any circumstances under any state law. "The Oregon Death with Dignity Act," Or. Rev. Stat. §§ 127.800 to 127.995, legalizes physician-assisted suicide by the prescription of lethal "medications" for terminally ill persons⁽¹⁾ when done in compliance with certain procedural requirements. Thus, as a practical matter, the exception to the CSA recognized by the Attorney General exempts from federal liability those assisted suicides performed in Oregon in accord with the formalities and restrictions of its law authorizing physician-assisted suicide. The use of a controlled substance for euthanasia or assisted suicide in any other state⁽²⁾ -- or in Oregon unless done in compliance with the Oregon law authorizing assisted suicide -- continues to subject the physician who prescribes or the pharmacist who dispenses such drugs to enforcement action by the federal Drug Enforcement Administration ("DEA").

The Pain Relief Promotion Act of 1999 closes a loophole created in federal law by the Attorney General's ruling through which a state might effectively overrule federal law banning the use of controlled substances for assisted suicide or euthanasia. Under the Attorney General's ruling, the federal Controlled Substances Act is enforceable against use of controlled substances for assisted suicide or euthanasia to the extent that state law proscribes these practices. However, the practical effect of the ruling is to effectively legalize the use of controlled substances for assisted suicide in one state -- Oregon -- to the extent that assisted suicide is performed in compliance with the restrictions and formalities of "The Oregon Death with Dignity Act."

The Attorney General's ruling renders federal law on assisted suicide and euthanasia a function of state policy in a manner inconsistent with the principles of federalism and existing federal policy on assisted suicide and euthanasia. The federal "Assisted Suicide Funding Restriction Act of 1997," ("ASFRA") 42 U.S.C. § 14401, for example, provides that no federal funds may be used, directly or indirectly,

(1) to provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing;

(2) to pay (directly, through payment of Federal financial participation or other matching payment, or otherwise) for such an item or service, including payment of expenses relating to such an item or service; or

(3) to pay (in whole or in part) for health benefit coverage that includes any coverage of such an item or service or any expenses relating to such an item or service.

Federal law thus forbids the use of any federal funds for assisted suicide regardless whether a state authorizes the practice -- yet, under the Attorney General's ruling, permits the use of controlled substances for assisted suicide if a state authorizes the practice. The Pain Relief Promotion Act would correct this inconsistency in the application of federal policy and would result in a uniform policy on the use of controlled substances nationwide.

Oregon is not singled out by the Act for disparate treatment. To the contrary, the Act would assure that all states are treated equally by assuring that controlled substances should not be used for killing purposes under federal law regardless of state law on the matter. Thus, the Pain Relief Act amends the Controlled Substances Act by providing,

(2) Notwithstanding any other provision of [the Controlled Substances] Act, in determining whether a registration is consistent with the public interest under [the Controlled Substances] Act, the Attorney General shall give no force and effect to State law authorizing or permitting assisted suicide or euthanasia.

The Pain Relief Promotion Act would thus preclude the Attorney General from finding that the use of controlled substances falls within the "public interest" exception of the CSA (21 U.S.C. § 823) as grounds for carving out an exception to a general prohibition on the use of controlled substances for assisted suicide or euthanasia when states permit such practices.

At the same time, the Pain Relief Promotion Act specifically states that controlled substances may be used for the purpose of providing palliative care even if there is an indirect risk that the use of the substances may result in death:

For purposes of this Act and any regulations to implement this Act, alleviating pain or discomfort in the usual course of professional practice is a legitimate medical purpose for the dispensing, distributing, or administering of a controlled substance that is consistent with public health and safety, even if the use of such a substance may increase the risk of death. Nothing in this section authorizes intentionally dispensing, distributing, or administering a controlled substance for the purpose of causing death or assisting another person in causing death.

This provision of the Pain Relief Act in effect states the "principle of the double effect" in the context of application of the CSA in order to sharply differentiate between encouraged use of controlled substances for palliative care and proscribed use of controlled substances for killing purposes. Following this common sense principle familiar to medical practitioners, use of controlled substances to relieve pain or discomfort is explicitly encouraged, although it is understood that their use may present an increased risk of death as a secondary and undesired consequence of their use. This aspect of the Act mirrors the same principle enshrined in ASFRA (42 U.S.C. § 14402):

(b) CONSTRUCTION AND TREATMENT OF CERTAIN SERVICES.--Nothing in subsection (a), or in any other provision of this Act (or in any amendment made by this Act), shall be construed to apply to or to affect any limitation relating to--. . . .

(4) the use of an item, good, benefit, or service furnished for the purpose of alleviating pain or discomfort, even if such use may increase the risk of death, so long as such item, good, benefit, or service is not also furnished for the purpose of causing, or the purpose of assisting in causing, death, for any reason.

There is no provision in the current CSA that expressly protects prescribing or dispensing of controlled substances to control pain even if they carry the risk of death. At present, therefore, some physicians might arguably be chilled from prescribing controlled substances in doses sufficient to control pain for certain patients for fear that this might put their DEA registration at risk if large-dose prescriptions are seen as sufficient potentially to kill the patient. To the extent that there is fear that DEA's authority to revoke registrations prescribing controlled substances to assist suicide may chill appropriate prescriptions for pain relief, this fear can only be diminished by the passage of this Act. Because the law as interpreted by the Attorney General now allows revocation of DEA registrations for assisting suicide to the full extent that such conduct violates state law, it cannot be credibly argued that passage of the Act would increase reluctance to prescribe drugs for pain relief. On the contrary, it is only by passing the Pain Relief Promotion Act that an explicit provision ratifying provision of appropriate pain relief measures will be added to the Controlled Substances Act.

It also deserves emphasis that neither physicians nor pharmacists would have a legitimate basis for concern that their dispensing of controlled substances for appropriate pain relief without intent to assist suicide might cause their loss of DEA registration, even if a patient later misused those drugs to commit suicide. In order to revoke DEA registration under the proposed Act, the DEA must show that the registrant "intentionally" dispensed or distributed a controlled substance "for the purpose of causing death or assisting another person in causing death." This creates a scienter requirement: to revoke a license, the DEA must show that the registrant had the knowing purpose of assisting suicide or committing euthanasia. Revocation of a registration is not authorized under the Act for negligence, but only for knowing and purposeful supplying of a federally controlled substance for a forbidden purpose.

Even if a physician intentionally prescribes federally controlled substances to assist suicide or commit euthanasia, it a separate question whether the pharmacist who fills the prescription is subject to revocation of DEA registration under the Act. To revoke the pharmacist's registration, the DEA must independently show that the pharmacist intentionally dispensed the substance with a purpose of assisting in suicide or committing euthanasia. The current DEA Pharmacist's Manual states that "the pharmacist who deliberately turns the other way when there is reason to believe that a purported prescription order had not been issued for a legitimate medical purpose may be prosecuted." U.S. Department of Justice, Drug Enforcement Administration, Pharmacist's Manual at 30 (Dec. 1995), citing United States v. Kershman, 555 F.2d 198 (8^th Cir. 1977). The key word is "deliberately." Unless the pharmacist acts deliberately and intentionally to assist suicide or commit euthanasia, the pharmacist's DEA registration may not be revoked.

Enforcement of the Act in Oregon

Special consideration to the manner in which the Pain Relief Promotion Act would operate in Oregon is appropriate because only Oregon has specifically legalized what the Act would forbid: Oregon explicitly permits the use of "medication" prescribed by physicians under certain conditions and certain patients for use in assisted suicide. Or. Rev. Stat. § 127.805.

The Act would cause the use of a controlled substance to assist in suicide to violate federal law -- the Controlled Substances Act - regardless whether or not this violates any Oregon state prohibition.⁽³⁾ In the wake of the Act, use of a controlled substance for this purpose would offend federal law in Oregon just as it now does in the other states. In effect, therefore, the Act would create a uniform national standard under which it is never legitimate to use controlled substances to assist in suicide or commit euthanasia.

Although the Pain Relief Promotion Act will shield physicians, pharmacists, and other DEA registrants who provide appropriate pain relief and who prescribe or dispense controlled substances without the intent of assisting suicide or euthanasia, the Act will be readily enforceable so as to deter the prescribing or dispensing federally controlled substances to assist suicide in Oregon. This is so because the DEA has statutory authority to subpoena reports of assisted suicide that The Oregon Death with Dignity Act requires to be made to Oregon authorities in order for assisted suicide to be legal under Oregon law. This ability to subpoena records will, with minimal investment of DEA resources, rapidly and conclusively establish whether any violations of the Controlled Substances Act, as modified by the Pain Relief Promotion Act, have occurred. As soon as this becomes widely known in Oregon, it is likely to deter virtually all violations.

First, reports and recorded required by The Oregon Death with Dignity Act will readily reveal whether federally controlled substances have been intentionally dispensed to assist suicide. Under the Oregon law,

The following shall be documented or filed in the patient's medical record:

(1) All oral requests by a patient for medication to end his life in a humane and dignified manner;

(2) All written requests by a patient for medication to end his or her life in a humane and dignified manner; . . .

(7) A note by the attending physician . . . indicating the steps taken to carry out the request, including a notation of the medication prescribed. [Or. Rev. Stat. § 127.855.]

Under rules issued November 5, 1997, by the Oregon Department of Human Resources, Health Division:

At the time the attending physician writes a prescription for medication to end life of a qualified patient, the attending physician shall send two documents to the State Registrar . . . 1) a copy of the patient's written request for medication to end life, as specified in Section 6 of the Act, and 2) a signed and dated report, entitled "Request for Medication to End Life, Attending Physician's Report and Medical Records Documentation,". . . which either is a) fully and accurately completed or b) indicates that the attending physician agrees to make available the relevant portions of the patient's medical record for Division review to determine compliance with the Act . . . [Or. Admin. R. 333-009-0010(1)(a)(1997)].

Thus, in order to comply with The Oregon Death with Dignity Act and to escape criminal liability that would otherwise exist under Oregon law for assisting a suicide, a physician must note the medication used to assist a suicide in the patient's medical record, and the physician must file a form with the State Registrar reporting the provision of that medication. The physician must either list the specific medication in Part G of a two-page "Attending Physician's Compliance Form" or file a short form identifying the patient and physician together with a commitment "to make available to the Health Division the relevant portions of the patient's medical record to determine compliance with The Death with Dignity Act." See copies of form attached as Exhibit B.

Recent amendments to The Oregon Death with Dignity Act further clarify the process. Oregon Senate Bill 491⁽⁴⁾ amends Or. Rev. Stat. § 127.865 by adding a new subsection 1(b): "The [Oregon Health] division shall require any health care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the division." Oregon Senate Bill 491 at p. 4, lines 9-10.⁽⁵⁾

Second, the DEA has federal statutory authority to subpoena the reports that must be provided to Oregon authorities, and, if necessary, the corresponding patient's medical record. Under 21 U.S.C. § 876 (1981),

In any investigation . . . with respect to controlled substances, the Attorney General may . . . require the production of any records (including books, papers, document, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.

Monthly, or at other appropriate periodic intervals, the DEA could and should subpoena copies of the relevant reports filed with the Oregon authorities. These would provide identification of each patient and physician, and they would identify the medication used. This information, once obtained in response to subpoena, would indicate unequivocally whether a federally controlled substance had been prescribed. If so, then this would be sufficient in itself -- without need for further investigation -- to provide adequate evidence for the suspension or revocation of the physician's registration to distribute controlled substances in accordance with 21 U.S.C. § 824(a) construed in light of the amendments of the Pain Relief Promotion Act.⁽⁶⁾

Use of this procedure would result in an efficient enforcement procedure against use of controlled substances in Oregon. Only physicians who comply with Oregon's record keeping and reporting requirements are immune from liability under Oregon law when they assist in suicide. However, when they comply with these requirements, they will be providing the evidence that the DEA can use to demonstrate their violation of the federal Controlled Substances Act.

Active Killing v. Withholding/Withdrawing Treatment

As amended by the Pain Relief Promotion Act, the Controlled Substances Act would prohibit the use of scheduled drugs for the purpose of assisting suicide or committing euthanasia: the use of active means to cause death. The Act does not affect the authority of the patient -- or, under circumstances described by state law, the patient's surrogate -- to order withholding or withdrawing of treatment necessary to sustain life.

The distinction between the use of active means that cause death and the foregoing of means that sustain life is well-acknowledged in state law and is already embodied in federal law. Thus, ASFRA denies the use of federal funds "to use for items and services (including assistance) the purpose of which is cause (or assist in causing) the suicide, euthanasia, or mercy killing of any individual. 42 U.S.C. § 14401(b). At the same time, ASFRA specifically states that "[n]othing in . . . [the Assisted Suicide Funding Restriction Act] . . . shall be construed to apply to or to affect any limitation relating to - (1) the withholding or withdrawing of medical treatment or medical care; (2) the withholding or withdrawing of nutrition or hydration . . ."

Nevertheless, the validity of the distinction between active means to cause death and forgoing treatment necessary to sustain life continues to be questioned. For example, at the April 1996 hearing before this Subcommittee, Representative Frank appeared to maintain that there is no difference in intention between a doctor who fails to provide life-saving medical treatment to a patient, knowing that this will result in the patient's death, and a doctor who gives the patient a lethal prescription or a lethal prescription. As Rep. Frank stated, "[A]s between the means of standing idly by when you have the ability easily to prevent something and helping it happen, that is not a significant difference . . . Doctors have acquiesced that you are as a doctor, under the law and by ethics, to allow someone to die even though you can prevent it because that individual wishes to die. [Here, Rep. Frank was referring to withholding or withdrawing life-saving medical treatment.] . . . I don't understand the moral distinction between acquiescing by giving someone the extra pills or simply saying, okay, we are going to let you die, when I could stop it." Transcript, Oversight Hearing: "Assisted Suicide in the United States," Monday, April 29, 1996, House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary at 162, 165.

Let us evaluate what this position entails. Since Rep. Frank maintains that there is no supportable distinction between rejecting life-saving treatment and taking lethal prescriptions to kill the patient, whenever the State permits rejection of treatment, it must also equally permit active killing. What follows from this?

First, one does not need have to any particular condition - for example, a terminal condition -- in order to refuse treatment of any kind. Under the law of informed consent, it almost always the case that a doctor cannot treat a competent patient if the patient refuses permission to be treated or to continue to be treated. This is true regardless of the nature of the treatment and regardless whether the patient would continue to live indefinitely if the treatment were provided. Thus, if there is no difference between actively killing and forgoing life-saving treatment, it follows that the government cannot prevent anyone from being provided a lethal prescription because, with rare exceptions, it cannot force anyone to accept life-saving treatment. For example, a mentally competent 18-year-old woman who, for whatever reason, refuses a blood transfusion or an antibiotic that would certainly save her life, but without which she would die, would also have an equal right to receive a prescription for a lethal overdose of drugs.

Second, if there is no distinction between the use of active means to cause death and forgoing life-saving treatment, then assisted suicide would be made available not only for competent adults, but also for mentally incapacitated adults and children. At least thirty-eight states and the District of Columbia impute the authority to order the withholding or withdrawing of life-sustaining medical treatment to surrogates to exercise on behalf of patients unable to make their own treatment decisions. See Thomas J. Marzen, Mary K. O'Dowd, Daniel M. Crone & Thomas J. Balch, 'Suicide: A Constitutional Right?' -- Eleven Years Later, 35 Duquesne L. Rev. 261, 279 n. 58 (1996) ("Eleven Years Later"), attached as Exhibit D. In state after state, it has been ruled, as has the Washington State Supreme Court, that "[a]n incompetent's right to refuse treatment should be equal to a competent's right to do so." In re Guardianship of Grant, 747 P.2d 445, 449 (Wash. 1987). If the right to forgo treatment necessary to sustain life is to be equated with a right to seek a lethal prescription, it follows that lethal drugs may be provided to mentally disabled adults and to children whenever surrogates may refuse life-saving treatment for them. Under the same circumstances in which a public guardian or family member might reject use of a respirator or chemotherapy for adults with Alzheimer disease or for children with disabilities, they would also have the authority to order lethal drugs be given to them.

The U.S. Supreme Court has explained the difference between use of active means to cause death and forgoing treatment:

First, when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication . . . he is killed by that medication. . . . Furthermore, a physician who withdraws, or humors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes . . . [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 . . . [P]atients who refuse life-sustaining treatment 'may not harbor a specific intent to die' and may instead 'fervently wish to live, but to do so free of unwanted medical technology, surgery, or drugs.' . . . [T]he law distinguishes actions taken 'because of' a given end from actions taken 'in spite of' their unintended but foreseen consequences. 'When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death . . . His purpose, though was to . . . liberate Europe from the Nazis.'" [Quill v. Vacco, 117 S.Ct. 2293, 2299 (1997), quoting Compassion in Dying v. Washington, 79 F.3d 790, 856 (9th Cir. 1996) (Kleinfeld, J., dissenting)].

It is undoubtedly true that some patients or their surrogates may refuse life-sustaining treatment precisely in order to cause the death of the patient rather than to relieve the burden treatment imposes or to achieve some other end. From an ethical or moral perspective, such a decision may not be different from a decision to actively kill through the use of lethal agents. In both cases, the motive is homicidal rather than beneficent.

However, law and public policy are hardly in the position to distinguish between the subjective motives of the decision makers when the contemplated conduct -- foregoing life-sustaining treatment -- is the same when treatment is refused for entirely legitimate reasons and when it is refused for homicidal motives. The law cannot read minds. And any attempt to establish a system to distinguish among refusal of treatment cases by balancing risk of death versus prospect of benefit or through prior oversight by an authoritative decisionmaking body would involve tortuous, and ultimately subjective, bureaucratic entanglement in end-of-life decisionmaking processes. See Eleven Years Later, 35 Duquesne L. Rev. at 271-273. In contrast, homicidal intent is clearly always manifest when active means are used to cause death. Drawing a bright line between the use of active means to cause death and forgoing treatment is thus not only logically defensible and already widely accepted in law, but it is sensible practical public policy. Moreover, failure to acknowledge the distinction between use of active means and forgoing treatment would result in a regime that legitimatized assisted suicide and euthanasia for virtually everyone since life-sustaining treatment can be refused by virtually everyone regardless of circumstance or condition.

Lack of Criminal Sanctions Against Suicide

It is sometimes argued that because there are at present no criminal penalties for those who commit or who attempt to commit suicide, it is irrational to make it crime to permit someone to assist others to commit suicide. After all, the argument goes, there are those who are physically incapable of killing themselves without assistance and those who may not otherwise be able to obtain drugs to permit them to commit suicide in a "humane and dignified manner." Shouldn't they have the opportunity for suicide as those who are physically able to do so or who have some access to controlled substances without physician prescription?

Thus, Representative Frank at an earlier hearing asserted that the "difference between the State not doing something to punish somebody for doing an act and the State calling it a right, which gives it a sanction" is "a distinction without a difference. You leave me alone, and I do what I want, and that is okay. People legally should be allowed to kill themselves if you're driven to do that without any fear of adverse legal consequences either to themselves or their estates . . . [I]f I am . . . legally entitled to commit suicide without adverse legal consequences, and I become physically incapable of doing it, then it seems to me to say that in those limited circumstances I can get someone else to help me and share with them my immunity to legal action is not discriminatory." Transcript, Oversight Hearing: "Assisted Suicide in the United States," Monday, April 29, 1996, House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary at 48-49.

This line of argument rests on a faulty premise: that people who are physically unable to do so in a desired manner now have a "right" or "freedom" to commit suicide.

Why is this premise faulty? Compare the situation of someone who avails herself of First Amendment rights by denouncing a politician in a public park. If an irate supporter of the politician tries to physically restrain the speaker and prevent her from continuing her denunciations, that person will be subject to criminal charges of assault and battery. On the other hand, suppose someone else tries physically to prevent that person from committing suicide. As the Minnesota Supreme Court held in a 1975 case, "[T]here can be no doubt that a bonafide attempt to prevent a suicide is not a crime in any jurisdiction, even where it involves the detention, against her will, of the person planning to kill herself." State v. Hembd, 305 Minn. 120, 126, 232 N.W.2d 872, 878 (1975). In fact, if public authorities detect someone in the act of attempting suicide, they will typically not only interfere, but also place the person in temporary custody of mental health authorities. Posing such a danger to oneself is grounds for involuntary commitment for mental health treatment by statute in every jurisdiction in the United States. See, e.g., Mass. Gen. Laws Ann. ch. 123, §§ 1, 18(a) (involuntary commitment to a mental health facility if there is "a substantial risk of physical harm to the person himself as manifested by evidence of threats or attempts at, suicide"); D.C. Code Ann. § 21-5459 (involuntary commitment for treatment for the mentally ill "likely to injure himself").

In short, it is not accurate to assert that there is a legal right or liberty to commit suicide. If this were so, then it would be no more constitutionally permissible for the State to interfere with suicide decisions than to interfere with free speech.

But if suicide is not today treated as a right, then why are there no criminal penalties against it? In fact, under English common was there was criminal punishment of a sort for suicide: the suicide was buried "ignominiously" (at a crossroads, and sometimes with a stake through the heart) and the personal property of the suicide was forfeited to the State. See Thomas J. Marzen, Mary K. O'Dowd, Daniel Crone & Thomas J. Balch, Suicide: A Constitutional Right? 24 Duquesne L. Rev. 1, 56-100 (1985), for an extensive treatment of the history of the law of suicide. There were instances of ignominious burial and forfeiture in the American colonies. By the time of the American Revolution or shortly thereafter, however, these penalties had been abolished in virtually all the states. This was not because early America approved of suicide. In an influential 1796 treatise, Zephaniah Swift, later Chief Justice of the Connecticut Supreme Court, explained that they were discontinued because it was seen as "contemptible" to exercise "mean act of revenge upon lifeless clay, that is insensible of punishment" and cruel to inflict "a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender." 2 Zepheniah Swift, A System of Laws of the State of Connecticut 304 (1795). Swift emphasized that suicide was nevertheless a "crime" that is "abhorrent to the feelings of mankind," but observed that "it is evident that were a person so destitute of affection for his family . . . as to wish to put an end to his existence, that he will not be deterred by a consideration of their future subsistence." Id. As the U.S. Supreme Court pointed out, abolition of the old common law of forfeiture of a suicide's personal property "did not represent an acceptance of suicide; rather . . . this change reflected the growing consensus that it was unfair to punish the suicide's family" by denying them their inheritance. Washington v. Glucksberg, 17 S. Ct. 2258, 2264 (1997). "Nonetheless, courts continued to condemn it as a grave public wrong." Id.

The colonies and later the states continued to punish assisting suicide and even attempted suicide. In the latter part of the Nineteenth and Twentieth Century, penalties for attempting suicide were generally repealed -- but not because suicide was seen as a liberty. Rather, the feeling grew that those who attempted suicide should be given treatment for mental or emotional disorders rather than punished by the criminal law. Typical was the 1902 statement of a Pennsylvania court about one who attempted suicide: "[I]t is the result of disease. He should be taken to a hospital and not sent to prison." Commonwealth v. Wright, 11 Pa. D. 144, 146 (1902). In 1980, the Supreme Court of Iowa wrote, "The only reason we view suicide [as] noncriminal is that we consider inappropriate punishing the suicide victim or attempted suicide victim, not that we are concerned about that person's life any less than others' lives. To say that aiding an abetting suicide is a defense to homicide would denigrate these views." State v. Marti, 290 N.W.2d 570, 581 (Iowa 1980). As the Florida Supreme Court stated in 1933, "No sophistry is tolerated . . . which seek[s] to justify self-destruction as commendable or even a matter of personal right" Blackwood v. Jones, 111 Fla. 528, 532-33, 149 So. 600, 601 (1933).

In sum, history a legal precedent does not support the notion that now or in the past suicide has been treated as an accepted liberty or freedom in the United States. That criminal penalties against suicide have been abolished does not render suicide an affirmative right. It remains against public policy. If it did not, then the numerous laws against assisted suicide, that permit police and private parties to use necessary force prevent suicide, and that warrant involuntary commitment of those who attempt suicide could not survive under the Constitution.

Conclusion

I strongly encourage enactment of H.R. 2260, the "Pain Relief Promotion Act of 1999." This proposed law would create a needed uniform federal standard on the use of controlled substances for assisted suicide and euthanasia, create an explicit exception for doctors to use controlled substances for palliative care, and authorize needed federal funds for palliative care training.

1. 0. Neither the U.S. Constitution nor federal statutory law warrants carving out an exception to a general prohibition on assisted suicide based on the condition or status of a person -- such as wheter the person has a terminal condition. See Washington v. Glucksberg, 17 S. Ct. 2258, 2265, quoting Blackburn v. State, 23 Ohio St. 146, 163 (1872) ("The life of those to whom life has become a burden - of those who are hopelessly diseased or fatally wounded -- nay, even the lives of criminals condemned to death, are under the protection of the law, equally as the lives of those who are in full tide of life's enjoyment, and anxious to continue to live"); United States v. Rutherford, 442 U.S. 544, 558 (1979) (no exception implied in the federal Food, Drug, and Cosmetics Act for terminally ill cancer patients to secure Laetrile).

2. 0. Euthanasia or "mercy killing" with or without the consent of the person killed is a homicide under the law of every state. Thirty-seven states have explicit statutory authority banning assisted suicide: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Mississippi, Montana, Nebraska, North Dakota, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and Wisconsin. At present, the District of Columbia and twelve states have no explicit statutory authority prohibiting assisted suicide: Alabama, Hawaii, Idaho, Massachusetts, Illinois, North Carolina, Nevada, Ohio, Utah, Vermont, Wyoming, and West Virginia. However, assisted suicide may not be safely done in any of these jurisdictions in view of the possibility that the courts in these jurisdictions might find that assisting in suicide is a form of homicide. See, e.g., State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961)

3. 0. The Pain Relief Promotion Act does not repeal The Oregon Death with Dignity Act. Under the conditions prescribed by The Oregon Death with Dignity Act, assisted suicide would remain legal under Oregon law. If the use of a "medication" for this purpose does not also involve the use of a federally "controlled substance," then the use of such a "medication" would not violate the CSA as amended by the Pain Relief Promotion Act. However, since Oregon law requires that death through assisted suicide be accomplished through use of "medications" that will cause death in a "humane and dignified manner" (Or. Rev. Stat. § 127.805), and since only controlled substances would appear to satisfy these criteria, a federal ban on the use of controlled substances for assisted suicide would effectively ban assisted suicide in Oregon, as it is already banned elsewhere.

4. 0. Oregon Senate Bill 491 amends The Oregon Death with Dignity Act. It was passed by both the Oregon House and Senate; the Governor of Oregon has represented that he will sign it. It is attached as Exhibit C.

5. 0. The new amendments to The Oregon Death with Dignity Act also specifically provide for a circumstance in which the attending physician, rather than a pharmacist, dispenses the "medications" for assisted suicide. An attending physician may dispense lethal drugs, provided that "the attending physician is registered as dispensing physician with the Board of Medical Examiners, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule . . ." Oregon Senate Bill 491 at p. 3, lines 13-16 (emphasis added).

6. 0. I respectfully urge the Subcommittee to include in its Committee Report accompanying H.R. 2260 an expression of clear Congressional expectation that the DEA will in fact on a periodic basis subpoena the relevant records from Oregon authorities or from authorities in any other state that would permit assisted suicide or euthanasia.