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Painfully Deceitful

September 17, 2000

This week the Senate is scheduled to vote on one of the most misleadingly named bills in Congress. The proposed Pain Relief Promotion Act, by Sen. Don Nickles (R-Okla.), is true to its name in one respect--it sets aside funding, if only a paltry $5 million, to further research in pain management, particularly into how to discourage terminally ill patients from committing assisted suicide to escape intractable pain. But the bill's real fiscal impact would be to authorize the Drug Enforcement Administration to spend up to $80 million launching an investigation of physicians that would inhibit, not encourage, effective pain management.

Specifically, Nickles wants the DEA to prosecute doctors who have intentionally used controlled substances like morphine to hasten a person's death. That could have a chilling effect on palliative care. Fear of prosecution is already leading many doctors to undermedicate for pain. For instance, in 1998 a New York state task force on pain management polled 3,000 physicians and found 71% admitting that they had undermedicated patients for pain to avoid punishment by state medical boards.

Proponents of the Nickles bill say it would not encourage overly zealous prosecution, for it has a provision recognizing that in some instances pain medication may unavoidably increase the risk that a patient will die. But that provision also asks DEA agents--who are law enforcement officials, after all, not doctors--to do something that would daunt the best of medical experts: determine whether a physician intentionally or unintentionally used pain medications to hasten death.

Nickles' bill might seem badly timed, coming in the wake of studies showing that U.S. doctors tend to undermedicate for pain. But "pain relief promotion" is really just a fig leaf covering the bill's real purpose: to override Oregon's 1994 Death With Dignity Act. Still the only one of its kind in the United States, the Oregon law makes it legal for a doctor to assist in the suicide of a person, under very specific circumstances, if that person is terminally ill.

The pain-relief angle is useful to the main supporters of the Nickles bill because it distracts from the fact that they--all devout supporters of states' rights--are proposing federal regulation that would trump state laws. One co-sponsor of the bill, Sen. Jeff Sessions (R-Ala.), as Alabama's state attorney general even filed a 1996 "friend of the court" brief in which he argued that state governments, not Congress, should determine whether their citizens have a right to physician-assisted suicide.

Atty. Gen. Janet Reno used similar reasoning in 1998 when she rightly barred the DEA from prosecuting Oregon physicians who helped terminally ill patients commit assisted suicide. Reno pointed out that the federal Controlled Substances Act was intended to prevent illegal trafficking in drugs, not to prevent states from determining appropriate contexts in which those drugs can be used.

The needless prosecutions the Nickles bill would encourage are a poor pretext for violating the principles that Reno correctly affirmed in 1998.

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