Controlled substances, assisted suicide,
    the Justice Department, and the courts

Why the Bush Administration is wrong to try to interfere with physician-assisted suicide, and why they can’t do so effectively even if the Supreme Court backs them up.

Summary:

The assisted suicide case the Supreme Court just agreed to take ( LA Times story ) (NY Times story) ( AP story ) is fascinating from many angles, but the whole thing strikes me as a complete waste of time and effort fueled by Christian Right politics on the one hand and the operational stubbornness of the assisted-suicide physicans and their lawyers on the other. If doctors can’t use controlled substances to help their patients die, there are lots of alternatives.

Background:

The voters of Oregon, by referendum, created a narrowly-defined process by which a dying person can get medical assistance to die more quickly. Operationally, that usually means administering an overdose of opiates.

The Controlled Substances Act creates a long list of drugs, including the opitates, that are banned except for legitimate medical use. In order to administer or prescribe controlled drugs, each physician needs a license issued by the Drug Enforcement Administration. Without that license, it is virtually impossible to practice most kinds of medicine.

After the Oregon referendum, some Republicans in Congress pressured Janet Reno, then Attorney General, to revoke the DEA licenses (DEA being part of the Justice Department) of Oregon physicians administering overdoses of opiates in accordance with the Oregon law. The theory behind the request was that killing someone was, by definition, not medical practice, and therefore any use of a controlled substance for that purpose couldn’t be “medical use” and was therefore against the law.

Reno refused, on the grounds that Congress in passing the CSA had indicated no intention to make the Attorney General the arbiter of what and was not medical practice. When John Ashcroft became Attorney General, he reversed that decision, made a formal finding that using controlled substances to hasten death wasn’t medicine, and threatened to take away the drug registrations of Oregon physicians complying with Oregon law.

A Federal district judge enjoined him from doing so, and a three-judge panel of the Ninth Cicuit, in a split decision, sustained that injunction. The Justice Department asked the Supreme Court to review the case, and the Court has now granted certiorari: i.e., agreed to that review.

Comments:

1. Legal: When the clock strikes thirteen, it’s time to get the clock fixed. When the Attorney General decides what constitutes medical practice, it’s time to get a new Attorney General.

(Wait. We tried that, and it didn’t work. I suppose it must be time to get a new President.)

(Ooops! We tried that too, and couldn’t. Never mind.)

If the Congress wanted the CSA construed as the Justice Department now construes it, the Congress could have amended the CSA by adding the phrase “but no controlled substance shall be used to bring about death except in the execution of the lawful sentence of a court.” The Congress never did so.

Therefore, the Justice Department should butt out of this issue, and the lower courts were right to tell them that. Now we get to see whether Justices Rehnquist, Scalia, and Thomas are willing to extend their vaunted federalism, used so far to protect gun owners from gun-free school zones and to avoid protecting women from violence, to cases where the shoe is on the other ideological foot.

2. Political: I’m listening for screams of libertarian outrage. So far, I’m not hearing any. Right now, assisted suicide probably isn’t a winning issue politically. I would guess that its popularity would go up as more and more of the boomers spend more and more time visiting elderly relatives and friends in nursing homes, but my guesses on such points aren’t worth much. Still, given that the Oregon law is so narrowly drafted as to be nearly useless — only about three dozen Oregonians a year take advantage of it — I’m half-hoping the Court upholds Ashcroft’s antics and that the issue comes back to bite the theocrats politically.

3. Operational: The whole legal issue is, it seems to me, based on a simple operational fallacy.

When a physician wants to help a patient die outside of Oregon, or outside of the restrictions in the Oregon law, opiates are the obvious way to go. Most dying people are in pain, and giving opiates to relieve pain is legitimate medicine. How big a dose is required can’t be predicted by any formula, due to the build-up of tolerance. If the dose necessary to relieve pain turns out to be fatal to someone who was dying anyway, no one is likely to ask any unpleasant questions.

But once there’s a law allowing a physician to assist suicide openly, there’s no particular reason to use the opiates as the means. I’m told intravenous potassium will do the trick quickly, reliably, and painlessly. But in fact there’s no real reason to use drugs at all.

Thirty years ago, there was a fatal industrial accident at Digital Equipment Corp. A worker operating in a clean room, breathing through a mask, died because someone plugged the tube supplying air to the mask into the nitrogen line rather than the oxygen line. (The plugs now come in different sizes, so this can’t happen again.)

I was puzzled about why the worker didn’t simply tear the mask off when he wasn’t getting oxygen, and was surprised to learn what you probably already know: the subjective feeling of air hunger that makes it hard to hold your breath for a long time doesn’t result from lack of oxygen, but from the buildup of carbon dioxide in your bloodstream. If you breathe inert gas, you won’t feel that you’re suffocating. In a minute or two you’ll feel dizzy; in another thirty seconds or so you’ll pass out; shortly afterwards your heart will stop beating; and ten minutes or so after that your EEG will flat-line.

The whole process is painless enough so the DEC employee didn’t notice, and (unlike dying from an opiate overdose) mostly takes place while you’re still conscious, which matters to various religious traditions that consider state of mind at time of death important.

Best of all, suicide with inert gasses requires no physician assistance whatever, except insofar as the laws insist on it it. Nitrogen tanks are easily available for industrial use (so, for those who want to go out euphoric, are tanks of nitrous oxide). Any party-supply store has tanks of helium for rent. Add a bit of rubber tubing, a big plastic bag, and a little bit of tape, and you’re in business.

Of course, many of the people who want to kill themselves for well-considered reasons (as opposed to those who commit suicide impulsively or in the grip of depression) lack the mobility and dexterity required to carry out death by breathing inert gas. Those in hospitals or nursing homes would be prevented from doing so by the staff, as would those under home health care. And, thanks to the antics of Jack Kevorkian, serial killer of women, most states now have laws making it illegal to provide someone else with the means of committing suicide.

So, in the absence of something like the Oregon statute, uncounted numbers (tens of thousands? hundreds of thousands?) of people who would like to die quickly and painlessly will instead be condemned to die slowly and miserably. (As noted above, the Oregon law clearly doesn’t really do its job, given the low take-up rate. Its restriction to those who have less than six months to live means that it does nothing for, e.g., stroke victims or victims of the progressive dementias.)

But for a death covered by an Oregon-style law, the controlled substances are utterly irrelevant, and their use is either merely vestigial or the result of a bloody-minded decision to seek a confrontation. Hospitals have breathing masks, and tanks of inert gasses.

So no Oregonian needs to be deprived of a comfortable exit, whatever the Supreme Court says.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com