I would like to begin by saying that this bill is much improved from the Lethal Drug Prevention Act, which was introduced in the 105th Congress and which I opposed. I believe that its supporters are well-intentioned and are attempting in this bill not just to oppose assisted suicide but to provide an alternative to assisted suicide through more effective pain relief. As someone with serious reservations about assisted suicide, I appreciate that effort. Nonetheless, I am unable to support the bill at this time. It is critically important that people in pain have access to effective pain treatment. Instead of advancing that goal, I am concerned that this bill will have a chilling effect on ordinary doctors throughout the United States and make them less likely to manage their patients’ pain aggressively and appropriately. Moreover, I fear that this bill violates important principles of federalism – it contradicts both our tradition of granting states the authority to designate appropriate medical practices and the Supreme Court’s suggestion that the states resolve the assisted suicide issue.

First, I fear that this bill will have a chilling effect on the tremendous advances in pain relief that are occurring in states across the country, including my own state of Vermont. I am not alone in this fear. The New England Journal of Medicine has stated: “If the bill becomes law, it will almost certainly discourage doctors from prescribing or administering adequate doses of drugs to relieve the symptoms of dying patients.” Numerous state medical societies have dissented from the AMA’s views on this legislation, fearing a chilling effect. In my state, the Vermont Medical Society has launched a program to educate all of its members about the pain relief needs of dying patients. Vermont is a rural state and many doctors there are general practitioners who deal less routinely with the medical needs of patients in severe pain. If this law is passed, these doctors may become afraid to prescribe pain medication for terminally ill patients for fear of being accused of intending to cause their death. This would undo the good that has been done by the campaign to educate physicians and would leave numerous patients who suffer from severe pain without effective medical assistance. This concern is certainly credible, since the brief news accounts about this bill that will be the main source of information for many general practitioners will undoubtedly dwell upon its attempt to punish doctors who assist in suicides. The testimony that Dr. Arthur Caplan – one of the nation’s foremost experts on medical ethics and an opponent of physician assisted suicide – offered to this Committee on Tuesday reinforces this point: “Doctors and nurses may not always fully understand what the law permits or does not, but when the issue requires an assessment of intent in an area as fraught with nuances and pitfalls as end of life care, then I believe that this legislation will scare many doctors and nurses and administrators into inaction in the face of pain. The unfortunate reality is that physicians greatly overestimate the possibility of legal repercussions.”

In addition to the serious perception problems that this bill’s passage would create, there are also problems with the substance of the bill that could lead physicians to curtail drastically their pain management practices. The bill focuses on the intent of doctors whose patients die while being treated with medication designed to relieve pain. Under current DEA practice, the agency rarely if ever investigates physicians whose patients die while being treated for pain. (This is in keeping with Congress’ heretofore consistent policy of not asking the DEA to make judgments of a medical or scientific nature.) The DEA could well take passage of this bill as a mandate to abandon its hands-off policy and instead investigate such physicians, forcing doctors around the country to explain to federal agents the intent behind the prescriptions they wrote for their dying patients. Moreover, this focus on intent reflects an overly simplistic view of medical practice – as the New England Journal of Medicine wrote, doctors dealing with terminally ill patients often have conflicting motivations, sometimes looking to relieve pain while also hoping that their patient’s misery can end. Anyone who has watched a loved one die in pain will quickly understand the tangled web of intent that many doctors must experience every day.

This difficulty with defining intent is particularly problematic when one considers the serious consequences for doctors who violate this bill. They would face not only the loss of their federal licenses but also the threat of criminal conviction and a 20-year mandatory minimum sentence under the Controlled Substances Act, a feature of this bill that has drawn the opposition of the Justice Department. Faced with a penalty so severe and the possibility that their innocent intentions may be misjudged after the fact, only very courageous doctors will risk pursuing the aggressive and appropriate pain relief regimens that the bill’s sponsors say they want to encourage.

Furthermore, it is unclear whether this bill really enhances the pain relief options that are open to physicians. As far back as 1990, the DEA stated in its Physicians Manual that “[c]ontrolled substances and, in particular, narcotic analgesics, may be used in the treatment of pain experienced by a patient with a terminal illness or chronic disorder.” Despite this protection, physicians already report that the threat of legal liability causes them to undertreat pain. Passage of this legislation would likely make matters even worse.

Second, I am also concerned that this bill fails to recognize the legitimate federalism concerns raised by this bill’s effective undoing of Oregon’s laws. Charles Fried, President Reagan’s Solicitor General and a former Justice on Massachusetts’ Supreme Judicial Court, recently wrote an op-ed in the New York Times opposing this bill, arguing that “[i]f the principles of federalism mean anything, this issue is none of Congress’ business.” Our states have traditionally had the right to govern medical practices. Indeed, the Controlled Substances Act was designed to prevent and control drug abuse, not to dictate the proper use of medicinal drugs to state medical boards. Oregon’s voters twice decided that assisted suicide was an appropriate medical practice in their state. Although I have serious reservations about their decision, I also have serious reservations about Congress rushing in to overturn it.

Pain relief is a complicated issue, and I believe that we can only deal with it adequately if we separate it from the controversy over assisted suicide. One potential avenue would be the Conquering Pain Act, S. 941, a bipartisan bill sponsored by Sens. Wyden, Mack, Rockefeller, and Gordon Smith. Then, if the majority desires it, we could still consider a separate bill dealing with the question of assisted suicide. As Dr. Caplan testified: “The regulation or prohibition of the practice of physician assisted suicide should be accomplished through explicit efforts addressed to this practice, not by indirection.”