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Reality Check on the Pain Relief Promotion Act
Among the false claims made against the Nickles/Lieberman Pain Relief Promotion Act is the argument that this bill raises a constitutional problem.
In a September 12 "Dear Colleague" letter, opponent Senator Ron Wyden distorts the meaning of the U.S. Supreme Court's 1997 decisions upholding laws against physician-assisted suicide. He says that "the justices unanimously ruled the States, not the Federal Government, should determine how best to address the issue of physician-assisted suicide"(emphasis in original).
The Supreme Court justices said nothing of the kind. The facts are as follows:
- In its 1997 decisions, the Court held that constitutional guarantees of due process and equal protection are not violated by laws banning assisted suicide. The Court said nothing here about the relative roles of state and federal legislatures in preventing the misuse of drugs for this practice. Reviewing ways in which legislators have exercised their legitimate authority to act against assisted suicide, the Court cited federal laws (e.g., the Assisted Suicide Funding Restriction Act of 1997), as well as the national laws of other countries, alongside laws passed by most states in the U.S. When it reviewed the "legitimate State interests" which justify bans on assisted suicide, the Court was referring to "the State" in the sense of government in general.
- In support of his claim, Senator Wyden cites an amicus brief filed by 19 attorneys general in the assisted suicide cases. But that brief simply said that the decision whether to permit assisted suicide is "a matter appropriately left for the people to decide through their duly elected representatives or by initiative ballot." It said nothing about states unilaterally demanding federally controlled drugs for assisted suicide, and certainly did not deny that Congress, too, is a body of "duly elected representatives."
- To underscore government's valid and longstanding interest in protecting the lives of terminally ill patients, the Court approvingly cited its own 1979 decision upholding the federal Food and Drug Administration's authority "to protect the terminally ill, no less than other patients," from life-endangering drugs. Washington v. Glucksberg, 521 U.S. 702, 729 (1997), quoting United States v. Rutherford, 442 U.S. 544, 558 (1979). Plaintiffs in Rutherford had claimed that the government's usual concern for drug "safety" is not relevant to dying patients. In response the Court unanimously affirmed the federal government's authority to protect all persons equally under federal drug laws, specifically including the terminally ill.
- The Court in 1997 did not say that states (or nations) may selectively permit assisted suicide for certain classes of vulnerable patients, as Oregon has done. It said it would not rule on the Oregon law, because that law was not before the Court. "Lee, of course, is not before us... and we offer no opinion as to the validity of the Lee courts' reasoning. In Vacco v. Quill..., however, decided today, we hold that New York's assisted-suicide ban does not violate the Equal Protection Clause." Washington v. Glucksberg, 521 U.S. at 709 n. 7. (The Ninth Circuit Court of Appeals declined to review the Oregon law on its merits, ruling instead that patients, doctors and health facilities opposing the law had no standing to challenge it.)
- The only federal court ever to review the Oregon law on its merits found that it violates constitutional guarantees of equal protection under law. The court found that this law excludes a class of vulnerable persons from the protection of the law against manslaughter, based on these persons' health condition, while retaining that protection for everyone else in the state. Lee v. Oregon, 891 F.Supp. 1429 (D. Or. 1995), vacated on other grounds, 107 F.3d 1382 (9th Cir. 1997), cert. denied, 522 U.S. 927 (1997). A federal policy that affirms and supports Oregon's discriminatory policy, preventing lethal misuse of federally controlled drugs for most persons while authorizing such misuse for certain patients, could have the same constitutional defect. It is the current federal policy of providing drugs for assisted suicide in Oregon, not the Pain Relief Promotion Act offered to correct that policy, that is constitutionally suspect.
- In its 1997 Glucksberg decision, the Supreme Court affirmed the important governmental interests that justify bans on assisted suicide: Government's "unqualified interest in the preservation of human life," which need not vary depending on a person's "quality of life"; protecting depressed and mentally ill persons from acting on their "suicidal impulses"; "protecting the integrity and ethics of the medical profession"; "protecting vulnerable groups – including the poor, the elderly, and disabled persons – from abuse, neglect, and mistakes."
- In the companion Quill decision, the Court affirmed the validity of laws like the Pain Relief Promotion Act, which oppose intentional assisted suicide while allowing aggressive pain management that may unintentionally hasten death:
[W]hen a doctor provides aggressive palliative care... in some cases, painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, "must, necessarily and indubitably, intend primarily that the patient be made dead.".... Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. [Vacco v. Quill, 521 U.S. 793, 802, 808 (1997)]
- In 1997 the Supreme Court said that Americans are engaged in a debate on assisted suicide "throughout the Nation" and that its decision "permits this debate to continue." That debate (which the Court never said would be confined to state legislatures) will continue with or without the Pain Relief Promotion Act. But the federal government is now taking the wrong side in that debate, by approving assisted suicide as "legitimate" medicine in Oregon and authorizing doctors to dispense lethal drugs for this purpose. The Pain Relief Promotion Act will get the federal government out of this unethical, destructive and arguably unconstitutional business of facilitating assisted suicide for vulnerable terminally ill patients.
For more information on the Pain Relief Promotion Act and the urgent need for its enactment, see www.nccbuscc.org/prolife/issues/euthanas/index.shtml and www.passprpa.org.
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