Eric Chevlen, M.D.
Testimony Before the Senate Judiciary Committee
Concerning The Pain Relief Promotion Act
April 25, 2000
Mr. Chairman, members of the Senate Judiciary committee:
Thank you for inviting me to address you this morning to explain why the Pain Relief Promotion Act (PRPA) should be adopted as law.
Allow me to introduce myself and explain my interest in this bill. My name is Eric Chevlen, M.D. I am a physician practicing in Youngstown, Ohio. I am the director of palliative care at St. Elizabeth hospital, and medical director of two hospices. I am certified by the American Board of Medical Oncology, the American Board of Pain Medicine, and the American Board of Hospice and Palliative Medicine. Every day in my practice I face the challenge of relieving the suffering of my patients. One of my best tools in this humane task is the class of drugs we physicians call opioids, and which this legislation refers to as narcotics. I unhesitatingly prescribe them to patients for whom they are the best analgesic, in doses that best balance side effects and benefit, no matter what the number of milligrams may be. Given the nature of my practice, it is not a surprise that I am one of the largest prescribers of opioids in Ohio. To borrow a phrase from the world of business, I am the “end-user” of this proposed legislation.
There is one other thing you ought to know about me. I am opposed to legalized euthanasia and physician assisted-suicide. The reason is this: In over twenty years of practicing medicine, more than a few of my patients have asked me to kill them. In every case—every case!—the request stemmed from depression, or anguish, or desperation, or fear of abandonment. In other words, my terminally ill patients sought euthanasia or assisted suicide for the same reasons that healthy people seek it. And, as in the case of healthy people, their suffering could be palliated, and their longing for death quelled, by proper use of medicine, lovingkindness, and what some have called the ministry of presence. The answer to anguish and desperation is not to coldly dispatch the anguished and desperate, but rather to enfold them within the bonds of a community that sees in them intrinsic, rather than merely utilitarian, value.
I am opposed to euthanasia. Nonetheless, Senators, if the PRPA were somehow to diminish the capability of physicians to relieve the suffering of the dying, if it were to increase the risk of harassment by overweening bureaucrats, or even if it were to chill the ardor of physicians to relieve suffering because they misunderstood the bill—if any of these were the case, then I would not be here speaking in support of the bill. Indeed, I would likely be here speaking against it.
Such, however, is not the case. The PRPA would not diminish the ability of doctors to relieve the suffering of the dying or others in pain. It is likely, frankly, that it would improve their ability to do so.
For some thirty years, the Controlled Substances Act (CSA) has regulated the therapeutic use of opioids and other substances. For thirty years, the federal law has recognized that, if misused, controlled substances present a significant potential harm to the public. For thirty years the law has also recognized that, when used properly, they also offer a unique and wonderful relief of suffering.
To minimize the potential harm and to maximize the potential benefit of controlled substances, Congress mandated that they be prescribed only by practitioners who were licensed by the Drug Enforcement Agency. Congress also demanded—and who could argue with this?—that the prescribing of the controlled substances be done only for legitimate medical purposes.
"Legitimate medical purposes." That is a phrase you will hear often today, and whose interpretation—and misinterpretation—is the crux of the issue before us today.
Until quite recently, there was never any argument over the meaning of the term. Every doctor knew that he could not simply sell prescriptions for cash. Every doctor knew that he could not swap prescriptions for sexual favors. Every doctor knew that he could not use prescribed drugs to commit homicide, even if the victim consented or participated in that act.
There was never any question about all this. The meaning of the law was plain, and it was buttressed by numerous uncontroversial court decisions.
This clarity and integrity of the federal law came to an end, however, after the passage of Oregon's notorious physician-assisted suicide law. The question arose: if an Oregon practitioner is in compliance with the admittedly loose requirements of that state law, may he prescribe a controlled substance to kill his patient? The head of the DEA said no: a state law cannot change the fact recognized by federal law, that killing people is simply not a legitimate medical purpose. The Attorney General overruled him. She said, in effect, that in forty-nine states, killing patients was not a legitimate medical purpose, punishable under the Controlled Substances Act. In Oregon, however, it was to be considered a legitimate medical purpose—unless the practitioner failed to fill out the requisite state paperwork. Then, it would again be deemed not legitimate.
Although that decision certainly generated a lot of discussion, I am surprised at how little has been said concerning what a sweeping Executive branch usurpation of Congressional authority was thereby accomplished. The Attorney General's decision effectively eliminated the Controlled Substances Act. If the impact of the law is to be determined, as she says, by state standards, then there is in effect no longer any enforceable federal standard. Oregon has now empowered its physicians to prescribe lethal doses of controlled substances, and the Attorney General says that if the state permits it, so too does the federal government. In effect, she has created a federal license to kill, if only state law be permitting. There is nothing in her ruling that prevents other states from allowing physicians—or pharmacists or podiatrists for that matter—from prescribing a panoply of controlled substances according to any criteria that state may choose. According to the Attorney General's Alice-in-Wonderland ruling, the federal government must recognize the "legitimate medical purpose" of this, simply because such action would be compliant with that state's law.
This point has been argued, and will surely be argued again if the PRPA does not become law. In 1996, two years before the Attorney General’s decision in this case, California passed a law considerably liberalizing the use and distribution of marijuana. In that case, the Justice Department argued the opposite of its point in the Oregon matter, saying, “A state initiative cannot supplant the will of the people of the United States."1 Later, however, in the Oregon matter, the Attorney General argued that Congress never intended the Controlled Substances Act to apply to such a duly passed state law. Rather, claimed the Attorney General, Congress intended the scope of the CSA to be somewhat limited, and authorized the DEA to prevent the "particular drug abuse" deriving from a drug's "stimulant, depressant, or hallucinogenic effect on the central nervous system."2
Set aside, for a moment, the fact that her theory of the law is completely unsupported by its legislative history, wording, and case law interpretation. Even if one grants the Attorney General’s theory, that only drug abuse of this class is interdicted by the CSA, then use of controlled substances to cause death is surely forbidden by the CSA. After all, the very mechanism by which controlled substances in overdose cause death is by depressing the central nervous system, in particular the respiratory center.
Is there to be a uniform federal standard of "legitimate medical purpose" or is there not? If the Senate feels there should not be any standard meaning to a federal law, if it feels that the CSA should be eradicated by bureaucratic legerdemain, then it should not pass the Pain Relief Promotion Act. If, on the other hand, it feels as I do that the very purpose of federal law is to protect the common good by establishing clear and uniform application of the law, then it very much should pass the PRPA. This act has as its main purpose the restoration of a uniform national standard in the Controlled Substances Act, but in fact it would do more: it would prevent the effective elimination of the CSA by the Executive branch without the advice or consent of the Congress.
Much mischief has been made of the fact that the PRPA puts into statute the law as it has been uniformly and unarguably enforced for many years. The act makes explicit that it is only purposeful killing of patients that is a violation of the CSA. Gentlemen, that is the law today. Even if the PRPA is not passed, the purposeful killing of a patient by use of a controlled substance will remain a violation of the CSA in forty-nine states. This act does not change the law for the doctors of those forty-nine states. It simply restores the effect of federal law to the one state that has abrogated its duty to extend state interest in the preservation of life to an apparently expendable segment of its population, namely those who are severely ill and despairing of life.
It is also important to note that the PRPA would not overturn the Oregon law allowing physician-assisted suicide. It would still be legal for a practitioner to prescribe a lethal potion there; only it must not contain a federally controlled substance. Sadly, there are a number of other drugs that can accomplish this wicked purpose, and there is no end to the inventiveness of people in whom are mixed the traits of cleverness and contempt for the innate value of every human being. While I believe that passage of the PRPA would diminish the number of victims of medical killing, I do not expect the practice to come to an end in Oregon. The states will retain the right to regulate medical practice within their borders. Passage of the PRPA simply ends federal collusion in the nasty business of doctors killing their patients.
As noted above, there are reasons of both law and justice to pass the PRPA. Now let us review the four possible reasons for opposing it.
First logically, and not last in some opponents’ motivation, it would be reasonable to oppose the PRPA if one feels that euthanasia is a public good to be promoted by federal policy. That would be contrary to the unanimous vote in the Senate in denying public funding for euthanasia and assisted-suicide, and contrary to the long history of government protection of vulnerable classes of citizens. But such opposition would be consistent with the effect of the Attorney General's ukase.
The second argument raised against the PRPA is that it diminishes a state's right to regulate the practice of medicine. Even before the inclusion of the amendments introduced by Senator Hatch, this argument held no water, for the bill does not overturn the Oregon act allowing physician-assisted suicide. After the inclusion of the amendments, which specifically declare that “nothing in this subsection shall be construed to alter the roles of the Federal and State governments in regulating the practice of medicine,” such an argument is not even worthy of consideration. Unfortunately, physician-assisted suicide will remain legal in Oregon even if this bill is passed. The federal government, however, will no longer play the role of enabler. Actually, if this bill is not passed, the states will gain new and unconstitutional power to limit the right of Congress to control interstate commerce of drugs. Without passage of the PRPA, it is the states that have power of nullification over a federal law. This country has already experienced considerable unhappiness as a result of nullification theory, and the Congress would be ill-advised to resurrect it now.
The third argument against the PRPA is that its language will have a chilling effect on the willingness of doctors to prescribe adequate doses of opioids to relieve the pain of dying patients, that they will fear a meddlesome DEA bureaucracy eager to swoop down on them and throw them in jail for 20 years when poor Grandma dies of cancer after her final comforting dose of morphine. Since the language of the bill does not adversely affect the license to prescribe opioids in 49 states, this cannot be so. Quite the contrary, this bill puts into statute what has heretofore been only administrative guideline, namely, that it is legitimate medical purpose to use a controlled substance to relieve pain even if that use increases the risk of death. This doctrine of double effect will be the law whether the PRPA passes or not. Making it explicit by statute should increase, not decrease, physician comfort in prescribing opioids.
Opponents of the bill speak as if prosecutors distinguish between homicide and natural death by using a Ouija board, rattles, and feathers. Those of you who have served as prosecutors know how far from reality this is. The circumstances of a death, not the dose of the drug, are determinative. By comparison, in this town of Washington today, two men may die from having a knife stuck in their chests. One case will be an unintended and tragic outcome from a failure to save a patient during a coronary artery bypass operation. The other will be a mugging occurring in an alley near the hospital. Just as it is easy to see that the first death was unintentional and due to a procedure which unavoidably increased the risk of death, so it is easy to see that the second is purposeful and criminal. Deaths associated with opioid use are just as easy to distinguish.
Much mischief is made by the euthanasiasts of the alleged respiratory suppression effect of morphine. Like so much else they promulgate, this is a gross distortion. Experienced clinicians understand that there is an enormous difference between the effect of morphine during its first days of use as compared with its effect in the chronic setting. During the first few days of use, morphine may cause sedation; if used recklessly it may even cause respiratory suppression. But the respiratory system quickly acclimates to morphine therapy. With continued use, morphine—even in high doses—relieves pain, but does not make the patient stop breathing.3
Another source of confusion is the fact that several different pharmacologic classes of drugs are lumped together in the category of controlled substances. Most of our discussion has been about opioids. But opioids are virtually never used to intentionally induce death for the very reason cited above. The recently published data from Oregon shows that 100% of patients who died as a result of prescribed lethal drugs took an overdose of a barbiturate.4,5 Only one of the patients was even prescribed an opioid to accompany the barbiturate; in that case the barbiturate alone would clearly have been fatal. With the exception of the antiepileptic phenobarbital, barbiturates have very little legitimate medical use these days. There are much safer drugs available to treat anxiety and insomnia. Indeed, it is this very lack of safety that makes barbiturates attractive to the doctor intent on killing his patient. My point is that this bill should not lead to reduced use of opioids, because opioids are not the drugs used to kill people; barbiturates are.
The opponents of the PRPA may counter that the doctors will refrain from prescribing opioids for fear that DEA or state regulatory officials will misinterpret their use of opioids as intentionally causing death, when in fact the patient died either of natural causes or as an inadvertent effect of the drug. But the law already forbids use of controlled substances to intentionally cause death in forty-nine states. Failure to pass the PRPA will not eliminate this law. The increased comfort concerning overweening regulation that physicians crave will not come from defeating the PRPA, but from passing it. This bill, for the first time, calls for federal dollars to be spent in the training and education of both federal and local officials, so that they will be more knowledgeable about proper palliative care, and less likely to mistake good care for a violation of law. If the PRPA is not passed, then there is nothing to improve the situation as it now stands, nothing to reduce the regulatory fear that inhibits doctors from prescribing drugs properly.
Fourth and finally, we need to address the possible objection to this bill that it will be misinterpreted by doctors, and that their misunderstanding of the bill will lead them to refrain from treating pain adequately. In particular, opponents argue that this misunderstanding will lead to a lower rate of prescribing opioids such as morphine. That opponents of the bill make this argument is actually a stunning concession that the language of the bill itself cannot justify such fears. Let us set aside for a moment the other implication of this argument, that men and women who have spent years mastering the intricacies of anatomy, physiology, pharmacology, and therapeutics are somehow too knuckle-headed to understand the plain meaning of a simple law. This argument of a chilling effect via physician misunderstanding is testable. In fact it has already been tested. Several states have passed laws similar in impact to the PRPA. If the legislation were to have a chilling impact on a doctor’s willingness to prescribe opioids, we should see a drop in, for example, morphine consumption in those states subsequent to the passage of the laws.
In fact, the opposite is observed. For example, in the spring of 1996, Louisiana passed a law banning assisted suicide, while allowing pain control that might unintentionally increase the risk of death. Per capita morphine consumption in that state rose 80% that year, and had nearly tripled by two years later. Similar results were seen when Iowa, Rhode Island, Virginia, and Kansas passed similar laws. In fact, of the top ten states in per capita morphine consumption in 1999, seven have specific statutes against assisted suicide.6 Now this rise in morphine consumption after passage of state laws resembling the PRPA does not prove that such laws improve pain control. But the data certainly disprove the contention that such passage will worsen pain control by reducing opioid prescribing.
Gentlemen, when I first earned my federal license to prescribe controlled substances, I was proud that my country had recognized my competence to relieve the suffering of my fellow citizens, and had entrusted to me the privilege to prescribe these medications for their benefit. It is deeply offensive to contemplate how this license of which I was so proud, a license to palliate the misery of my patients and fellow creatures, has been degraded to be a federal license to kill them, state law permitting. Senators, remove this stain; erase this blot. Vote to improve pain treatment and to protect the vulnerable citizens of the country. Vote to allow honest physicians to relieve pain without the stigma of a federal license to kill. Please pass the Pain Relief Promotion Act.
- Justice Department attorney Mark Quinlivan, arguing before U.S. District Court Judge Charles Breyer, quoted by Reuters newservice, March 25, 1998.
- Attorney General Janet Reno, Letter to Congressman Henry Hyde, June 5, 1998.
- P.D. Wall, "The Generation of Yet Another Myth on the Use of Narcotics [Editorial]," Pain 73, no. 2 (Nov 1997): 121-2.
- Arthur E. Chin, and others, "Legalized Physician-Assisted Suicide in Oregon--the First Year's Experience," New England Journal of Medicine 340 (1999): 577-83.
- A.D. Sullivan, K. Hedberg, and D.W. Fleming, "Legalized Physician-Assisted Suicide in Oregon--the Second Year," New England Journal of Medicine 342, no. 8 (Feb 24 2000): 598-604.
- Drug Enforcement Administration, U.S. Department of Justice, Statistics on Individual State Consumption of Morphine.