physician assisted suicide and physician assisted dying and gonzalez v. oregon and janet reno and orrin hatch and henry hyde

So far we have read about who may initiate the request for legal (but lethal) drugs and the form of the request, according to the Oregon Statute. A few subprovisions of the "form of the request" statute are interesting. One of the persons who witnesses the dying person's signature may not be a relative of the patient or "a person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient" (ORS 127.810(2)(b)). But, as I read the statute, it says, literally, that "one" of the people can't be such a person. Can the other one be such a person? Probably so, or else the language would have said "neither of the witnesses."

The statute is quite concerned to make sure that adequate safeguards are in effect. In other words, the drafters were aware that detractors of the law would dream up all kinds of "Kevorkian-like" scenarios where "mad Oregon doctors" were eager to inject you if you wandered into their waiting rooms, and so they countered this by requiring independent and corroborative reports about the person's terminal condition (i.e., death in six months) by an attending and consulting physician (ORS 127.815, 820). Additional safeguards include provisions for counseling referral, family notification and a waiting period. In other words, the statute tries to take away all kinds of caprice from the decision, making sure that the wishes of a lucid person who is terminally ill are respected.

Annual Report

One of the statutory requirements was that the state Department of Human Services each year issue a report on how many Oregonians had selected PAS in the preceding year. These reports are issued in February or March, and are available online. Rather than being a lurid report for the pruriently-inclined, these annual documents hit the street with all the fanfare of a legal brief on service of process in Fiji. But some of the figures are interesting. For example, the 2005 report tells us that "in 2004, 40 physicans wrote a total of 60 prescriptions for lethal doses of medication, the first decrease in the annual total of prescriptions written since PAS became legal in Oregon" (I suppose this is intended to dispel the myth that people are chomping at the bit to wheel grandma into the suicide suite at the local hospital).

Here are the comparative data the report gives. From 1998 until 2004, the number of prescriptions were as follows: 24, 33, 39, 44, 58, 68, and 60 (2004). Only 35 of the 2004 prescription recipients died after ingesting the medication. To allay your fears, this didn't mean that there were 25 "botched" suicides, with foaming-mouthed elderly people thrashing around on the floor while people watched in horror. "Of the 25 recipients who didn't ingest the prescribed medication in 2004, 13 died from their illnesses [just think of the psychological pressure for many who are involved in this highly unusual decision] and 12 were still alive on December 31, 2004" (2005 Report, 4). What is interesting to me is that in the same period where a few hundred Oregonians were ending their lives through PAS, more than 64,000 Oregonians who had the same diseases chose to finish their lives without the aid of PAS. In other words, at this juncture, the "floodgates" have not been opened. Unlike the lines of gay couples lining up to tie the knot at the Multnomah County Courthouse in May 2004, very few people "get in line" for PAS.

One other interesting factor is brought out in the report. It says that "rates of participation in PAS decreased with age, but were higher among those who were divorced or never married, those with more years of formal education, and those with amyotrophic lateral sclerosis (Lou Gehrig's disease), HIV/AIDS, or malignant neoplasms" (2005 Report, 5)." Though the number of Oregonians receiving PAS is "trending slightly upwards," it still accounted for fewer than 1 out of 800 deaths in Oregon during 2004. And, oh, the people taking advantage of the law are disproportionately white males. Seems like those guys always take advantage of good things...

Now to the Politics of PAS

So, the PAS law went into effect in Oregon late in 1997. Once the national politicians were finally convinced that the crazy people of Oregon were sailing their ship off the flat edge of the earth, they got into the act. In 1997 Sen. Orrin Hatch (R-UT) and Rep. Henry Hyde (R-IL) sent a letter to the Drug Enforcement Adminstrator advocating an interpretation of the federal Controlled Substances Act ("CSA") of 1970 (passed during the Nixon Administration when Congress was going to crack down on drug trafficking once and for all) which would permit the DEA to revoke licenses of physicans and pharmacists who prescribed lethal doses or filled the prescriptions. The DEA Administrator dutifully wrote back that "delivering, dispensing or prescribing a controlled substance with the intent of assisting a suicide would not be under any current definition a 'legitimate medical purpose' (a catch-phrase in the rules implementing the CSA). As a result, the activities that you described in your letter to us would be, in our opinion, a violation of the CSA."

The issue now had become a federal one, even while the state statute was in effect and Oregonians were supposedly blissfully killing themselves. But the DEA's opinion was just that; it didn't stop anything from happening. It just began to give one of the sides in the future debate ammunition. In response to this exchange between the DEA and Hatch/Hyde, the Deputy Attorney General of Oregon pulled rank on the Senators, if that was possible, by writing directly to then-Attorney General Janet Reno about the problem, urging her to reconsider the DEA's opinion. In her June 5, 1998 response, Reno said that the USDOJ had reviewed the issue thoroughly and concluded that "the federal government's pursuit of adverse actions against Oregon physicians who fully comply with the [Oregon] Act would be beyond the purpose of the CSA." In other words, the US Department of Justice wasn't going to pursue the matter. Chalk up a victory in this round, then, for the State of Oregon.

Oregonians then remained in its Edenic bliss of killing themselves for three years. The next essay tells what happened next.

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