A group of Oregonians joined forces to develop a law allowing dying patients to control their own end-of-life care. The group was comprised of citizens, scholars, and legal and medical experts, many of whom today serve on our board of directors.
At about the same time, Oregon state Senator Frank Roberts introduced three Death with Dignity bills. None of these bills got out of committee, but they became templates for later bills. In Washington voters rejected a ballot initiative in 1991, and in California in 1992.
In Oregon in 1994 voters approved Measure 16, Oregon Death with Dignity, on November 8, 1994, by a margin of 51.31 percent (627,980 votes) to 48.69 percent (596,018 votes). Oregon thus became the first US state with a physician-assisted dying statute.
Measure 16 is regarded as one of the most controversial ballot measures in Oregon’s history. Despite its passage, implementation was tied up in the courts for several years.
In December 1994, the case Lee v. State of Oregon became the Oregon law’s first legal challenge. The plaintiffs in the case were doctors and patients who contended that the Oregon law violated the Constitution’s First and Fourteenth Amendments. US District Court Judge Michael R. Hogan placed a temporary injunction on the implementation of the Act. Lee v. State of Oregon eventually made its way to the US Supreme Court, which refused to hear the case. The Appellate Court vacated the claims and instructed the lower court to dismiss.
In August, Judge Hogan made the injunction permanent, ruling that Oregon Death with Dignity Act violates the US Constitution’s Equal Protection clause. The ruling was immediately appealed to the US Circuit Court of Appeals.
In the related case Washington v. Glucksberg, the Ninth Circuit Court of Appeals on March 6 ruled that Washington State’s ban on physician-assisted dying was unconstitutional. The case was the first of its kind to be decided by a full federal appeals court.
In February, a three-judge panel of the Ninth Circuit Appeals Court dismissed the District Court’s challenge to Oregon’s Death with Dignity law.
In June, The US Supreme Court issued two rulings related to physician-assisted death. In Vacco v. Quill the Supreme Court ruled that New York’s prohibition on physician-assisted dying does not violate the Equal Protection Clause. In Washington v. Glucksberg the Supreme Court ruled that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Constitution’s Due Process Clause. The Court also instructed that the issue would be best addressed in the “laboratory of the states,” which are free to prohibit or legalize physician-assisted dying.
Attempts in the Oregon legislature to nullify the law culminated in Measure 51, Oregon Repeal of Death with Dignity, which asked the voters to repeal the Oregon Death with Dignity Act. The measure failed in the November 4 election by a larger margin than the margin by which Measure 16 had passed, 59.91% to 40.09%, or 666,275 to 445,830 votes.
Some members of Congress tried to block implementation of Measure 16, but failed. US Senator Orin Hatch (R-Utah) and U.S. Representative Henry Hyde (R-Illinois) urged the US Drug Enforcement Administration to investigate and penalize doctors who prescribe federally controlled drugs for dying patients to hasten their death. In December, DEA chief Thomas Constantine said that Oregon physicians participating under the law’s guidelines would be in violation of the Controlled Substances Act (CSA). US Attorney General Janet Reno agreed to review the matter.
In an April 2 letter to Rep. Hyde, Attorney General Reno issued a reversal of the DEA’s position, saying that the Department of Justice would not prosecute physicians who had assisted their patients’s deaths in compliance with the Oregon law. Reno argued that:
- The Controlled Substances Act was designed to prevent the illegal sale and diversion of drugs.
- The CSA was not intended to supplant individual states as the regulators of medical practice.
- The Oregon Death with Dignity Act, as written, was well beyond the regulatory purview of the Controlled Substances Act.
Congressional opponents to physician-assisted dying introduced the Lethal Drug Abuse Prevention Act (HR 4006/S 2151), designed to overturn the Oregon law, and Senator Don Nickles (R-Oklahoma) introduced it as an amendment to the 1998 Omnibus Spending Bill. President Bill Clinton said he would not sign the bill, and Senator Ron Wyden (D-Oregon) threatened to filibuster the bill.
Editorials throughout the country attacked Congress’ attempt to overturn the will of Oregon voters. In addition, a coalition of 57 healthcare organizations opposed the Lethal Drug Abuse Prevention Act on grounds that it would harm patients. The American College of Physicians-American Society of Internal Medicine (ACP-ASIM) helped lead the lobby against the Lethal Drug Abuse Prevention Act. Harold C. Sox, their president, wrote: “Ideology inspired this bill, and its chief sponsors didn’t seem to understand our concerns about the harm it might cause. But we could also see its defeat as an uplifting civics lesson: Many legislators changed their minds when they realized that the bill could put their constituents at risk.”
As legislators backed away, some of the bill’s co-sponsors dropped their support, and Senator Nickles withdrew his plan as the session came to a close.
The US House of Representatives passed the Pain Relief Promotion Act to bar physicians from prescribing medications as allowed by the Oregon Death with Dignity Act.
National organizations, including the American Bar Association, the American Cancer Society, and the American Pain Foundation came out against the legislation, national editorial boards lambasted Congress’ assault on pain management, and President Clinton, an historic opponent of physician aid-in-dying, expressed reservations about the PRPA’s negative impact.
In October, the PRPA passed the US House 271 to 156.
At the beginning of the Congressional session, passage of the PRPA appeared imminent. But opponents pressed for an honest examination of the bill’s true costs and intentions, and the PRPA failed to reach the Senate floor for a full vote before adjournment.
On November 6, new US Attorney General John Ashcroft attempted to block the Oregon Death with Dignity Act by issuing his “Ashcroft Directive,” authorizing DEA agents to investigate and prosecute doctors who prescribe federally controlled drugs to help terminally ill patients die. Two days later, US District Court Judge Robert Jones issued an injunction against the Attorney General’s order until April 2002, when arguments would be heard.
In March, arguments regarding the Ashcroft Directive were heard in U.S. District Court.
On April 17, Judge Robert Jones ruled that the US Justice Department lacks the authority to overturn an Oregon law allowing physician-assisted deaths.
On September 23, Attorney General Ashcroft filed an appeal with the U.S. 9th Circuit Court of Appeals.
On May 7, oral arguments were heard in the Ninth Circuit Court of Appeals in Oregon v. Ashcroft.
On May 26, a three-judge panel of the Circuit Court ruled in favor of the Oregon Death with Dignity Act, asserting: “We hold that the Ashcroft Directive is unlawful and unenforceable because it violates the plain language of the CSA, contravenes Congress’ express legislative intent, and oversteps the bounds of the Attorney General’s statutory authority.”
The Ninth Circuit Court of Appeals thus affirmed that the “Attorney General lacked Congress’ requisite authorization” to suspend the license for prescribing drugs covered in the Controlled Substances Act of doctors who prescribed life-ending medications under the Oregon Death with Dignity Act.
On July 12, Attorney General John Ashcroft appealed the ruling and requested that an 11-member panel rehear Oregon v. Ashcroft. On August 11, the Circuit Court rejected Ashcroft’s request.
On November 9, the deadline for an appeal, Ashcroft filed his petition with the US Supreme Court. Later that day, Ashcroft announced his retirement from the Department of Justice.
In February, the US Supreme Court granted the Department of Justice’s request for a hearing in Gonzales v. Oregon (formerly Oregon v. Ashcroft).
Oral arguments in Gonzales v. Oregon were heard on October 5. The legal question in Gonzales v. Oregon was: “Whether the Attorney General has permissibly construed the Controlled Substances Act, 21 U.S.C. 801 et seq., and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, regardless of a state law purporting to authorize such distribution.”
The US Department of Justice with US Solicitor General Paul Clement argued that
- The Controlled Substances Act establishes a comprehensive and uniform nation system for regulating controlled substances, and the Attorney General’s interpretive ruling implementing the Act is supported by the overwhelming weight of authority.
- The [Ninth Circuit] court of appeal’s rejection of the Attorney General’s interpretive ruling was based on a fundamental misunderstanding of the applicable principals of statutory construction.
State of Oregon with Senior Assistant Attorney General Robert Atkinson argued that
- The Attorney General’s threatened action would nullify the Oregon Death with Dignity Act.
- The CSA does not itself prohibit the uses of controlled substances permitted by the Act, and it does not authorize the US Attorney General to do so.
- The Court should reject this unprecedented attempt by an agency official to resolve a disputed issue of social and medical policy that is reserved to the States and should reemphasize the vital role State sovereignty plays in our federal system and the need for Congress to speak clearly when it intends to interfere with that role.
On behalf of Death with Dignity National Center, Eli D. Stutsman, JD, a board member and co-author of Oregon’s Death with Dignity law, was Counsel of Record, Stutsman representing the physician and pharmacist named in the Supreme Court case, arguing that
- The Attorney General’s enforcement directive violates the plain language of the Controlled Substances Act, oversteps the bounds of the Attorney General’s statutory authority, and contravenes Congress’s express legislative intent.
- The States, not the Attorney General acting through the Controlled Substances Act, regulate medicine.
- The power to regulate commerce between the States does not authorize federal usurpation of medical practice in the States, or the manner in which Oregonians die.
On January 17 the Supreme Court voted 6 to 3 to uphold an Oregon physician-assisted suicide law in the case Gonzales v. Oregon, ruling that former Attorney General John Ashcroft overstepped his authority in seeking to punish doctors who prescribed drugs to help terminally ill patients end their lives. The Supreme Court said that the Oregon law supersedes federal authority to regulate physicians and that the Bush administration improperly attempted to use the CSA to prosecute Oregon physicians who assist in patient suicides.
In the majority opinion, supported by Justices Sandra Day O’Connor, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, Justice Anthony Kennedy wrote that the federal government can regulate prescriptions through CSA but only in relation to prohibiting doctors from engaging in illegal drug dealing. “Beyond this, the statute manifests no intent to regulate the practice of medicine generally,” Kennedy wrote. Kennedy wrote that the “authority claimed by [Ashcroft] is both beyond his expertise and incongruous with the statutory purposes and design.” He wrote that had the Bush administration’s position been upheld, it would have “delegate[d] to a single Executive officer the power to effect a radical shift of authority from the states to the federal government to define the medical practice in every locality.” He added that, when Congress passed CSA, it “did not have this far-reaching intent to alter the federal-state balance.”
On August 4, US Senator Sam Brownback introduced the Assisted Suicide Prevention Act, which would prohibit doctors from prescribing federally-controlled substances for the purpose of physician-assisted suicide.
Oregon Senator Ron Wyden on September 6 moved to block Senator Brownback’s attempt to derail Oregon’s landmark law. Wyden announced he would block the bill indefinitely through a legislative hold. The bill was withdrawn.
Since then the Death with Dignity Act has been a stable, unchallenged part of Oregon statutes.