Last week's decision by the U.S. Supreme Court to uphold Oregon's controversial assisted-suicide law gave a boost to the rights of physicians, patients and states in the battle over how much say the federal government has in regulating healthcare.
The Supreme Court's Jan. 17 decision was a rebuke of the Bush administration's attempt to use federal drug laws to overrule a state law allowing physician-assisted suicide.
Though most healthcare players generally opposed Oregon's law or remained neutral, and physicians did not present a unified front in Oregon's battle to allow physician-assisted suicide, many doctors were eager to keep the federal government from expanding its role in the physician-patient relationship.
The court's decision "removes a dark shadow hanging over all Oregon physicians delivering end-of-life care," said Peter Rasmussen, a Portland physician board certified in medical oncology and palliative care who has assisted in more than a dozen patient deaths under the law.
"The Bush administration would have had members of their organization deciding what was and wasn't legitimate medical treatment. If it stood, it could have gone far beyond end-of-life care to reproductive care and stem-cell research. They could have used their ethics to track down and punish doctors," he said. Rasmussen said the court restated the principle that the regulation of medicine resides within the states.
Also, the ruling gives further insulation to the physician-patient relationship. The Supreme Court decision grants greater autonomy to physicians and protects them from government prosecution and civil lawsuits, said Stuart Gerson, a former Justice Department official now with the law firm Epstein, Becker & Green. "It strengthens the physician-patient relationship and pulls the government out of this kind of decisionmaking, while reiterating that the federal government can't supersede state law," Gerson said.
Patients' rights advocates also applauded the ruling. "This restores the common understanding that the federal government has no business at the bedside of dying patients," said Barbara Coombs Lee, president and co-chief executive officer of Compassion & Choices, a national organization advocating better end-of-life care. "This tells states that they can establish aid in dying as a legal alternative. It lifts the cloud of uncertainty over state legislatures about whether they have the authority to do this. They do have the authority as well as the moral obligation. Dying patients want this right, this control, this choice, this hope."
The Supreme Court's ruling was the result of a move by former U.S. Attorney General John Ashcroft, who in 2001 challenged the Oregon law by issuing a rule that said dispensing controlled substances to assist a suicide was "not a legitimate medical practice" and violated the 1970 Controlled Substances Act. Ashcroft said that a 1971 regulation within that law gives the attorney general authority to regulate physician prescription activity, and deny, suspend or revoke physician registration for activities "inconsistent with the public interest."
The state of Oregon, along with a physician, pharmacist and several patients, challenged Ashcroft's rule in 2001 and a federal district court prevented its enforcement. The 9th U.S. Circuit Court of Appeals struck down the rule, saying it violated the balance between states and the federal government. The attorney general appealed that ruling to the U.S. Supreme Court, which heard arguments last year and released its decision last week.
Had the attorney general-led effort succeeded, the effect would have been to restrict the use of powerful drugs in physician-assisted suicides. Since the law's implementation in 1997, 208 Oregonians have requested physician assistance in dying.
But by a 6-3 majority, the court held that Ashcroft exceeded his authority under the Controlled Substances Act and could not punish doctors who helped patients to die by prescribing lethal doses of drugs. Writing the majority opinion, Justice Anthony Kennedy said that, "The authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design."
Justice Antonin Scalia, writing for the dissenting minority, said using the federal commerce power to "prevent physician-assisted suicide is unquestionably permissible."
While Oregon voters have supported physician-assisted suicide, there remains significant opposition from doctors nationally, and more than one-third of Oregon doctors in a recent survey opposed it. Many have united against the practice. Retired radiation oncologist Kenneth Stevens, vice president of Portland, Ore.-based Physicians for Compassionate Care, said his organization was disappointed in the Supreme Court's decision, although he noted that the ruling was made on a narrow legal point and did not speak to the legality of the state's assisted-suicide law. Stevens said opponents of the law plan nothing new in that state, but said his organization will continue to speak out against what he calls the harms and dangers of the practice.
Stevens said he didn't think the Supreme Court decision would encourage passage of assisted-suicide laws in other states. "We were told after the Oregon law passed, it would sweep the country, but it has not passed in any other state since," said the retired faculty member of the Oregon Health & Sciences University.
Opponents of the law, such as Stevens, said some patients feel particularly vulnerable under the law. "The people who have requested this have not chosen suicide for uncontrollable pain, but for mostly social and psychological reasons. They don't want to lose control over their lives and become dependent. And this strikes fear in people with disabilities who fear subtle pressures for them to end their own lives."
Healthcare lawyer Gerson also said the court's decision is troubling in some ways. "It overlooks questions of patient competence in making these decisions and doesn't touch on the role of doctors in making the decision to die."
Other opponents to the Oregon law offered similar reasoning. The American Medical Association has opposed physician-assisted suicide in its policies and public statements, but declined to comment on the Supreme Court decision. The AMA policy explains that physician-assisted suicide is "inconsistent with the physician's professional role," saying that dying patients should be provided aggressive comfort-care measures and a greater reliance on hospice care. Requests for assisted suicide indicate "that the patient's needs are unmet."
"Physicians must not perform euthanasia or participate in physician-assisted suicide," the policy reads.
While the Oregon Medical Association also opposed the Oregon law, the OMA objected to what it viewed as a flaw in the law and has remained neutral on the concept of physician-assisted suicide (See story, p. 6).
Hospitals and insurers have mostly chosen to stay out of the fray.
The Oregon Association of Hospitals and Health Systems remained neutral because its members were divided on the issue, said Gwen Dayton, executive vice president and general counsel. Dayton said because the law remained intact throughout the legal challenges to it, the Supreme Court ruling should have little impact on Oregon providers.
"I can imagine though, that some physicians may have held off participating due to the uncertainty created by the challenge to the law," Dayton said. "Had the decision gone the other way, it would not (have) impacted hospitals much because very few assisted suicides have occurred in hospitals."
Stevens said hospitals have mostly stayed out of the debate, although he noted that Seattle-based Providence Health System, one of the largest systems in Oregon operated by a Roman Catholic religious order, has spoken out against the law and the practice. Providence didn't return phone calls seeking comment.
Angela Hult, a spokeswoman for Regence Blue Cross and Blue Shield of Oregon, the state's largest health plan, said the industry took no position on the law and her company didn't either. She said she's uncertain how many physicians have billed the 1 million-member Blues plan for reimbursement for physician-assisted suicide. "I don't think we have any code for it. If it's billed at all, it's probably for a routine consultation."
Rasmussen, the doctor, said that the vast majority of physician-assisted deaths occur in patient homes, nursing homes or hospices. He said pain is typically not the reason cited by most patients requesting physician assistance in dying. "We're so good at controlling the pain, that's not usually the issue. It's nausea, shortness of breath, incontinence and symptoms of being increasingly dependent on others," he said. "They are having family members observe this and don't want them to exhaust themselves emotionally and financially. The thing they have in common is they are usually very self-reliant and have taken responsibility for themselves and valued retaining that control all of their lives."