X-Message-Number: 9051
Date: Sun, 25 Jan 1998 09:17:44 -0700
From: David Brandt-Erichsen <>
Subject: Oregon update

The following article was published in the OREGONIAN
(January 24, 1998; page n/a)
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DEA POLICY ON SUICIDE LAW IN DOUBT

A preliminary review by the Justice Department would
clear doctors to participate

By Jim Barnett, Dave Hogan, and Ashbel S. Green of The
Oregonian staff

An internal review team from the U.S.
Department of Justice has concluded that
federal law does not prohibit doctors from
carrying out Oregon's assisted suicide law,
Sen. Ron Wyden, D-Ore., said Friday.

The Oregon law has been under a legal cloud
since November, when U.S. Attorney General
Janet Reno called for the review. Reno has
not made a final decision, but Wyden said
he's hopeful she will accept the team's
conclusion.

"I think the key thing is that the attorney
general told me personally this call was
going to be based on legal grounds," Wyden
said. "The reason this development is
important is that it goes right to the heart
of how she said the decision was going to be
made."

Dispute about the intent and reach of federal
law was sparked by Thomas A. Constantine,
head of the Drug Enforcement Administration.
Constantine thinks the Controlled Substances
Act prohibits doctors from writing lethal
prescriptions.

In a Nov. 5 letter to Rep. Henry Hyde,
R-Ill., chairman of the House Judiciary
Committee, Constantine outlined his
interpretation that doctors who assist the
suicide of a terminally ill patient should
lose their prescribing privileges -- a threat
that would render the Oregon law useless.

But Constantine sent the letter without
telling Reno. Embarrassed, Reno referred the
issue to an internal review team to determine
whether Constantine's interpretation of the
Controlled Substances Act was accurate.

The Justice Department confirmed this week
that a preliminary decision had been made by
the internal team, headed by Jonathan D.
Schwartz, counsel to Deputy Attorney General
Eric Holder Jr. A spokesman declined to say
what the decision was.

A final decision will not be made until other
members of the Justice Department --
including the Civil Division, the Solicitor
General's office and the DEA -- are given a
chance to comment.

"Some components (of the Justice Department)
have provided their comments, but other
components have not had an opportunity to
provide their views," spokesman Gregory King
said. "All I can say is, the review has not
been completed, and it's premature to
speculate on what the results will be."

However, state officials, including Gov. John
Kitzhaber, are proceeding under the
assumption that Oregon's assisted suicide law
will go forward.

Neither the attorney general's office, which
is responsible for defending the law, nor the
governor has been contacted officially about
any decision on doctor-assisted suicide, said
Kristen Grainger, a spokeswoman for Attorney
General Hardy Myers.

But "if that's the finding," Grainger said,
"then that's great. It means the arguments of
the state prevailed."

Kitzhaber called the preliminary conclusion
"a victory for the 60 percent of Oregonians
who wanted this law."

"It's what we were hoping to hear, that
Oregon would be able to go ahead and
implement its own laws," Kitzhaber said
Friday before touring a Eugene agency serving
homeless youth.

The preliminary decision will be a relief to
doctors wishing to take part, he said. The
conclusion, if confirmed by Reno, will allow
Oregon to proceed with handling the
complexities of physician-assisted suicide,
including working through a dispute between
the Oregon Medical Association and the state
Board of Pharmacy, he said.

The president of the Oregon Medical
Association, whose members are divided about
the issue of assisted suicide, echoed that
sentiment.

Although applauding the Justice Department's
initial conclusion as a victory for Oregon
doctors, Dr. Charles E. Hofmann, a Baker City
internist, said it would not have an
immediate effect on physicians' behavior.
First, the panel's findings are not final.
Second, physicians are grappling with many
more issues than the DEA. "It's one step down
a long road," Hofmann said.

The big issue for the medical association, at
present, is whether physicians would have to
comply with a state Board of Pharmacy
emergency rule that requires doctors to
divulge when they have written a prescription
under the Death With Dignity Act. Arguing
that the rule violates patient
confidentiality, the medical association has
appealed the pharmacy board's action to the
Oregon Court of Appeals. The court action is
pending.

Dr. Patrick M. Dunn, chairman of the Task
Force to Improve Care of the Terminally Ill
and a HealthFirst Medical Group internist,
called the Justice Department review team's
conclusion "an important piece of the
puzzle."

"It will free at least one of the barriers
hanging over the law," he said.

Barbara Coombs Lee, co-author of the assisted
suicide law and head of the Compassion in
Dying Federation, concurred.

"It's not the DEA's business to steamroll ...
the people of Oregon and replace the voters'
judgment with their own," she said.

She called the review team's conclusion "the
last in a long line of victories for the
Oregon people and the Oregon Death With
Dignity Act. ... Every dying Oregonian and
every doctor who treats dying Oregonians
should know that the (act) is a reality. It
is an option to be counted among all the
others at the end of life."

But Dr. William M. Petty, vice president of
Physicians for Compassionate Care, which
opposes the act, said, "Allowing it is not
ethical and never will be." Petty said his
organization plans to be more active in
advocating that patients get good end-of-life
care, palliative care and second opinions
that emphasize alternatives to assisted
suicide.

In Washington, opponents of assisted suicide,
including President Clinton and leading
congressional Republicans, said little about
what strategy they would pursue if Reno
agrees with the review team.

"I cannot speculate on what we may do in the
event of a hypothetcial situation," said Jon
Murchinson, a White House spokesman.

Likewise, assisted suicide opponents on
Capitol Hill refused to say whether they
would try to pass new legislation to thwart
the Oregon law -- an arduous and potentially
perilous task.

"We will wait until the administration's
formal position is announced before
commenting," said Jeanne Lopatto, an aide to
Sen. Orrin Hatch, R-Utah, Senate Judiciary
chairman.

Wyden, however, said he would not be
surprised if legislation is proposed. Earlier
this month, he noted, a bipartisan group of
eight senators sent a letter to Reno urging
her to accept Constantine's interpretation of
the Controlled Substances Act.

Richard Doerflinger, a spokesman for the U.S.
Catholic Conference, said Friday that if the
DEA does not have the authority to discipline
doctors, then Congress should give it that
authorization.

Proposing a new law could carry political
risk, Wyden said. Some of the loudest
opponents of assisted suicide also are
outspoken proponents of states' rights.
"It'll be an interesting philosophical
challenge for them."

Wyden personally opposes Oregon's assisted
suicide law but has emerged as its chief
defender against federal intervention. Sen.
Gordon Smith, R-Ore., who also opposes the
Oregon law, backed Constantine's
interpretation.

It's unclear when Reno will render a final
decision, said Josh Kardon, Wyden's chief of
staff. He expects Reno to wait for comments
from the White House, which has been
distracted by preparations for the
president's State of the Union speech on
Tuesday and charges of sexual misconduct.

Although Kardon said he did not have a draft
of the Justice Department review team's
findings, he said he had been told by
administration sources that such a document
had been circulated within the department.

The review team's opinion may reflect the
position taken by the Oregon attorney
general. On Nov. 20, David Schuman, Oregon
deputy attorney general, met with Justice
Department officials to argue that Congress
intended the Controlled Substances Act to
deal with the abuse and trafficking of
controlled substances, not with medical
practices deemed legal under state law.

The Death With Dignity Act still faces a
court challenge. A federal judge in Eugene
will hear arguments Feb. 18 about whether he
should reinstate a lawsuit challenging the
act's constitutionality.

U.S. District Judge Michael R. Hogan in 1995
ruled that the act violated the U.S.
Constitution's equal protection clause, but
the U.S. 9th Circuit Court of Appeals last
year reversed Hogan, saying the chronically
ill plaintiff did not have standing to sue.
The U.S. Supreme Court last fall refused to
consider the case.

Steve Woodward and Gail Kinsey Hill of The
Oregonian staff and correspondent Janet
Filips contributed to this report.

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