House Appears Set to Criminalize Assisted Suicide

Congress is looking to stymie the nascent movement in the states to make doctor-assisted suicide legal for the terminally ill.

The House is set to approve legislation today that effectively would nullify Oregon’s law allowing physician-assisted suicide for terminally ill patients--the only such law in the country. The bill also could serve to dampen support in California and a few other states with legislative committees that are considering laws similar to Oregon’s.

The measure on the House floor today would explicitly make it a crime--regardless of state law--for doctors to prescribe controlled substances such as morphine with the intention of hastening death. Violators would face mandatory prison terms--up to 20 years for the prescription of morphine, one of the most commonly prescribed painkillers.

Although doctors could continue to prescribe non-controlled substances in lethal doses, most say that other available drugs would have to be taken in doses too large to be practical or with too high a likelihood of botched and painful results.

Doctors in Oregon say that, if the legislation becomes law, they would be forced to stop helping terminally ill patients end their lives.

The Senate will take up a similar bill by early next year. President Clinton, an ardent opponent of physician-assisted suicide, has sent signals through the White House staff and the Justice Department that he will consider signing the legislation but wants to see softer penalties for doctors and a few other changes.

The administration’s most recent letter to Congress evaluating the bill avoids any mention of a veto. “The administration strongly opposes the practice of physician-assisted suicide and would not support the practice as a matter of federal policy,” said a Justice Department letter personally approved by Clinton to House Judiciary Committee Chairman Henry J. Hyde (R-Ill.), according to senior administration officials.

The letter spelled out concerns, however, about the harsh penalties and about the “heavy-handed” way in which the bill would preclude states from adopting policies authorizing physician-assisted suicide.

“This is a difficult issue for the president,” said another senior administration official. “It plays into his personal abhorrence to physician-assisted suicide and his allegiance to state rights. . . . They are competing issues for him.”

At stake is not only the future of the movement to make assisted suicide legal but also the willingness of doctors to use aggressive pain-control measures for terminally ill patients. Even now, studies suggest that doctors undertreat pain in terminally ill patients in 40% to 80% of their cases and that they frequently cite the fear that law enforcement officials will question prescriptions of high doses of painkiller, whether or not the medication hastens death.

Much like abortion, physician-assisted suicide is a highly emotional issue that divides along ideological rather than party lines. Although a majority of House members is expected to approve the bill today, there is much disagreement about what might be constitutional and what might be ethically appropriate.

“On each side of this debate people have often failed to think about the contextual realities,” said Walter Dellinger, the former solicitor general who argued before the Supreme Court against a constitutional right to die.

Given managed health care’s emphasis on controlling health costs and the high cost of health care, there is a risk that some patients could feel pressured into choosing the less costly option of assisted suicide--a point often lost on proponents of assisted suicide, Dellinger said.

“And those who would use criminal bans are not being sensitive to how it would chill . . . limited use of powerful pain medication for people who are in terminal suffering,” Dellinger said.

In Oregon, whose voters twice approved physician-assisted suicide, policymakers are frustrated by the assault from Washington.

“This bill . . . will make it risky for physicians to be as aggressive as they should be in treating terminally ill patients,” said Mark Gibson, who advises Oregon Gov. Jon Kitzhaber on health and human services. “I’m not sure what these folks are trying to accomplish.”

Hyde, a sponsor of the bill, pointed out that it was changed to make clear that aggressive pain control would not be grounds for investigation or prosecution. Doctors could prescribe all the controlled substances necessary to alleviate pain, even if the effect is to hasten death, as long as the intent is not to assist in a patient’s suicide.

“We must take steps to kill the pain, not the patient,” Hyde said. He urged his colleagues to vote for the bill to ensure “that powerful drugs under federal control are used to eliminate pain and suffering, not to eliminate our fellow Americans.”

The bill also would authorize $5 million annually to train law enforcement agents and doctors in appropriate pain treatment and to establish protocols for treating severe pain. Many law enforcement officers and even doctors are not aware that the dosages necessary to quell severe pain at the end of life can run at least 500 times more than would be appropriate for patients who had not already developed a tolerance for the drug.

Doctors and experts in pain treatment are split on the bill. The American Medical Assn. and the National Hospice Assn. support it, but nine state medical associations, including those in California, Oregon and Washington, signed a letter opposing the bill as an intrusion into the sensitive area of pain treatment at the end of life and states’ prerogative to regulate the practice of medicine.

Clinton has walked a tortured course, threading between his moral objections to assisted suicide and his support of states’ rights. The Justice Department’s most recent take on the issue left the president leeway to go either way on whatever bill ultimately reaches his desk.

In 1997, Clinton signed a ban on using federal funds under such programs as Medicare, Medicaid and the military health-care system for assisted suicide. The previous year, arguing what were thought to be Clinton’s personal views, Dellinger told the U.S. Supreme Court that there is no constitutional right to assisted suicide.