In 1994 voters in Oregon narrowly approved a ballot measure making their state the most permissive jurisdiction in the world on physician-assisted suicide. Opponents filed suit, arguing that the so-called “Death with Dignity” Act denied equal protection of the law to terminally ill patients, especially those who were economically or socially deprived. A federal district judge agreed and issued an injunction preventing the act from taking effect, but the Ninth Circuit Court of Appeals dismissed the case on procedural grounds without hearing the merits of the case. The Supreme Court declined to hear the case, at least for the present, and upon remand to the Ninth Circuit the injunction was lifted.
While all this was going on, many Oregonians apparently began to have second thoughts about the virtues of “death with dignity,” and a second ballot measure was proposed to repeal the first. In November, however, the voters decided by a sixty to forty percent vote to stand by their original decision. In theory, then, Oregon is willing to claim the dubious distinction of being the only state that authorizes doctors to issue medication for the sole and express purpose of killing their patients.
But opponents of assisted suicide have yet other arrows in their legal quiver. In late October, Henry Hyde and Orrin Hatch, chairmen, respectively, of the House and Senate judiciary committees, wrote to the director of the Drug Enforcement Administration and asked whether federal law had anything to say about doctors who prescribed drugs for the purpose of assisting suicide. DEA Administrator Thomas Constantine replied that any doctor who wrote such a prescription could be subject to severe sanctions under the Controlled Substances Act.
The drafters of the Oregon law clearly did not anticipate this turn of events. They have petitioned Attorney General Janet Reno to reverse Constantine’s ruling, but that will be easier said than done. For one thing, as a formal matter at least, President Clinton is opposed to assisted suicide. Even if Clinton changes his mind (always a distinct possibility), federal law doesn’t provide much in the way of discretionary wiggle room. The Food, Drug, and Cosmetic Act (FDCA), for example, establishes an elaborate regulatory regime to protect consumers from health care products and medical devices that pose a danger to human beings. In case after case and regulation upon regulation, courts and agencies have made clear that the defining purpose of federal law in this area is the protection of human life and health. The FDCA contemplates that some products and devices, although elaborately screened and intended to bestow benefits, may have the incidental effect of harming those who use them. But under no circumstance does the act recognize, either expressly or by implication, the therapeutic utility of a drug or device whose sole purpose is to cause death. In fact, the Supreme Court ruled nearly twenty years ago that terminal illness cannot justify the use of a drug that otherwise fails to meet FDCA health and life-affirming standards: “For the terminally ill, as for anyone else, a drug is unsafe if its potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit.”
A second law, the Controlled Substances Act, expressly incorporates and supplements the FDCA by specifically prohibiting the distribution and use of addictive, hallucinogenic, or other toxic drugs. It does permit the dispensation of certain controlled substances by licensed practitioners, but only when prescriptions are written “for a legitimate medical purpose.” The intentional infliction of death has never been recognized as fulfilling that purpose—which was precisely the point reaffirmed by Constantine in his response to Messrs. Hyde and Hatch. Moreover, the Health Care Financing Administration made clear in a 1996 ruling that physician assisted suicide is not a covered medical procedure under Medicare. And just to remove any shadow of a doubt, Congress last year enacted legislation prohibiting federal financial support for any medical substance or procedure that supports assisted suicide.
This controversy has all the makings of a landmark constitutional case. Proponents of assisted suicide will argue, of course, that what constitutes sound medical practice should be a matter for the states to decide. That’s going to be difficult to affirm without unraveling a large and well-settled body of federal law and policy to the contrary—something that the courts may be unwilling to do without some direction from Congress. And Congress, for its part, seems unlikely to agree, anytime in the near future, to a special exemption to federal drug laws for assisted suicide. Stay tuned for this rousing political battle to heat up soon. Keep your eye on it.