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                                                       Calendar No. 566
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-299

======================================================================



 
                     THE PAIN RELIEF PROMOTION ACT

                                _______
                                

                  May 23, 2000.--Ordered to be printed

                                _______
                                

Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2260]

    The Committee on the Judiciary, to which was referred the 
bill (H.R. 2260) amending the Controlled Substances Act to 
promote pain management and palliative care without permitting 
assisted suicide and euthanasia, and for other purposes, having 
considered the same, reports favorably thereon, with an 
amendment in the nature of a substitute, and recommends that 
the bill, as amended, do pass.

                                CONTENTS

                                                                   Page

  I. Text of H.R. 2260................................................1
.................................................................
 II. Purpose and summary..............................................5
.................................................................
III. Background and need for the legislation..........................6
.................................................................
 IV. Section-by-section analysis.....................................15
.................................................................
  V. Legislative history and vote of the Committee...................19
.................................................................
 VI. Explanation of the legislation and Committee views..............22
.................................................................
VII. Cost estimate...................................................46
.................................................................
VIII.Regulatory impact statement.....................................49

.................................................................
 IX. Minority views of Senators Leahy, Kennedy, Kohl, and Feinstein..50
.................................................................
  X. Changes in existing law.........................................83

                          I. Text of H.R. 2260
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Pain Relief Promotion Act of 2000''.

SEC. 2. FINDINGS.

  Congress finds that--
          (1) in the first decade of the new millennium there should be 
        a new emphasis on pain management and palliative care;
          (2) the use of certain narcotics and other drugs or 
        substances with a potential for abuse is strictly regulated 
        under the Controlled Substances Act;
          (3) the dispensing and distribution of certain controlled 
        substances by properly registered practitioners for legitimate 
        medical purposes are permitted under the Controlled Substances 
        Act and implementing regulations;
          (4) the dispensing or distribution of certain controlled 
        substances for the purpose of relieving pain and discomfort 
        even if it increases the risk of death is a legitimate medical 
        purpose and is permissible under the Controlled Substances Act;
          (5) inadequate treatment of pain, especially for chronic 
        diseases and conditions, irreversible diseases such as cancer, 
        and end-of-life care, is a serious public health problem 
        affecting hundreds of thousands of patients every year; 
        physicians should not hesitate to dispense or distribute 
        controlled substances when medically indicated for these 
        conditions; and
          (6) for the reasons set forth in section 101 of the 
        Controlled Substances Act (21 U.S.C. 801), the dispensing and 
        distribution of controlled substances for any purpose affect 
        interstate commerce.

         TITLE I--PROMOTING PAIN MANAGEMENT AND PALLIATIVE CARE

SEC. 101. ACTIVITIES OF AGENCY FOR HEALTHCARE RESEARCH AND QUALITY.

  Part A of title IX of the Public Health Service Act (42 U.S.C. 299 et 
seq.) is amended by adding at the end the following:

``SEC. 903. PROGRAM FOR PAIN MANAGEMENT AND PALLIATIVE CARE RESEARCH 
                    AND QUALITY.

  ``(a) In General.--Subject to subsections (e) and (f) of section 902, 
the Director shall carry out a program to accomplish the following:
          ``(1) Promote and advance scientific understanding of pain 
        management and palliative care.
          ``(2) Collect and disseminate protocols and evidence-based 
        practices regarding pain management and palliative care, with 
        priority given to pain management for terminally ill patients, 
        and make such information available to public and private 
        health care programs and providers, health professions schools, 
        and hospices, and to the general public.
  ``(b) Definition.--In this section, the term `pain management and 
palliative care' means--
          ``(1) the active, total care of patients whose disease or 
        medical condition is not responsive to curative treatment or 
        whose prognosis is limited due to progressive, far-advanced 
        disease; and
          ``(2) the evaluation, diagnosis, treatment, and management of 
        primary and secondary pain, whether acute, chronic, persistent, 
        intractable, or associated with the end of life;
the purpose of which is to diagnose and alleviate pain and other 
distressing signs and symptoms and to enhance the quality of life, not 
to hasten or postpone death.''.

SEC. 102. ACTIVITIES OF HEALTH RESOURCES AND SERVICES ADMINISTRATION.

  (a) In General.--Part D of title VII of the Public Health Service Act 
(42 U.S.C. 294 et seq.) is amended--
          (1) by redesignating sections 754 through 757 as sections 755 
        through 758, respectively; and
          (2) by inserting after section 753 the following:

``SEC. 754. PROGRAM FOR EDUCATION AND TRAINING IN PAIN MANAGEMENT AND 
                    PALLIATIVE CARE.

  ``(a) In General.--The Secretary, in consultation with the Director 
of the Agency for Healthcare Research and Quality, may award grants, 
cooperative agreements, and contracts to health professions schools, 
hospices, and other public and private entities for the development and 
implementation of programs to provide education and training to health 
care professionals in pain management and palliative care.
  ``(b) Priority.--In making awards under subsection (a), the Secretary 
shall give priority to awards for the implementation of programs under 
such subsection.
  ``(c) Certain Topics.--An award may be made under subsection (a) only 
if the applicant for the award agrees that the program to be carried 
out with the award will include information and education on--
          ``(1) means for diagnosing and alleviating pain and other 
        distressing signs and symptoms of patients, especially 
        terminally ill patients, including the medically appropriate 
        use of controlled substances;
          ``(2) applicable laws on controlled substances, including 
        laws permitting health care professionals to dispense or 
        administer controlled substances as needed to relieve pain even 
        in cases where such efforts may unintentionally increase the 
        risk of death; and
          ``(3) recent findings, developments, and improvements in the 
        provision of pain management and palliative care.
  ``(d) Program Sites.--Education and training under subsection (a) may 
be provided at or through health professions schools, residency 
training programs and other graduate programs in the health 
professions, entities that provide continuing medical education, 
hospices, and such other programs or sites as the Secretary determines 
to be appropriate.
  ``(e) Evaluation of Programs.--The Secretary shall (directly or 
through grants or contracts) provide for the evaluation of programs 
implemented under subsection (a) in order to determine the effect of 
such programs on knowledge and practice regarding pain management and 
palliative care.
  ``(f) Peer Review Groups.--In carrying out section 799(f) with 
respect to this section, the Secretary shall ensure that the membership 
of each peer review group involved includes individuals with expertise 
and experience in pain management and palliative care for the 
population of patients whose needs are to be served by the program.
  ``(g) Definition.--In this section, the term `pain management and 
palliative care' means--
          ``(1) the active, total care of patients whose disease or 
        medical condition is not responsive to curative treatment or 
        whose prognosis is limited due to progressive, far-advanced 
        disease; and
          ``(2) the evaluation, diagnosis, treatment, and management of 
        primary and secondary pain, whether acute, chronic, persistent, 
        intractable, or associated with the end of life;
the purpose of which is to diagnose and alleviate pain and other 
distressing signs and symptoms and to enhance the quality of life, not 
to hasten or postpone death.''.
  (b) Authorization of Appropriations; Allocation.--
          (1) In general.--Section 758 of the Public Health Service Act 
        (as redesignated by subsection (a)(1) of this section) is 
        amended, in subsection (b)(1)(C), by striking ``sections 753, 
        754, and 755'' and inserting ``sections 753, 754, 755, and 
        756''.
          (2) Amount.--With respect to section 758 of the Public Health 
        Service Act (as redesignated by subsection (a)(1) of this 
        section), the dollar amount specified in subsection (b)(1)(C) 
        of such section is deemed to be increased by $5,000,000.

SEC. 103. DECADE OF PAIN CONTROL AND RESEARCH.

  The calendar decade beginning January 1, 2001, is designated as the 
``Decade of Pain Control and Research''.

SEC. 104. EFFECTIVE DATE.

  The amendments made by this title shall take effect on the date of 
enactment of this Act.

 TITLE II--USE OF CONTROLLED SUBSTANCES CONSISTENT WITH THE CONTROLLED 
                             SUBSTANCES ACT

SEC. 201. REINFORCING EXISTING STANDARD FOR LEGITIMATE USE OF 
                    CONTROLLED SUBSTANCES.

  (a) In General.--Section 303 of the Controlled Substances Act (21 
U.S.C. 823) is amended by adding at the end the following:
  ``(i)(1) For purposes of this Act and any regulations to implement 
this Act, alleviating pain or discomfort in the usual course of 
professional practice is a legitimate medical purpose for the 
dispensing, distributing, or administering of a controlled substance 
that is consistent with public health and safety, even if the use of 
such a substance may increase the risk of death. Nothing in this 
section authorizes intentionally dispensing, distributing, or 
administering a controlled substance for the purpose of causing death 
or assisting another person in causing death.
  ``(2)(A) Notwithstanding any other provision of this Act, in 
determining whether a registration is consistent with the public 
interest under this Act, the Attorney General shall give no force and 
effect to State law authorizing or permitting assisted suicide or 
euthanasia.
  ``(B) Paragraph (2) applies only to conduct occurring after the date 
of enactment of this subsection.
  ``(3) Nothing in this subsection shall be construed to alter the 
roles of the Federal and State governments in regulating the practice 
of medicine. Regardless of whether the Attorney General determines 
pursuant to this section that the registration of a practitioner is 
inconsistent with the public interest, it remains solely within the 
discretion of State authorities to determine whether action should be 
taken with respect to the State professional license of the 
practitioner or State prescribing privileges.
  ``(4) Nothing in the Pain Relief Promotion Act of 2000 (including the 
amendments made by such Act) shall be construed--
          ``(A) to modify the Federal requirements that a controlled 
        substance be dispensed only for a legitimate medical purpose 
        pursuant to paragraph (1); or
          ``(B) to provide the Attorney General with the authority to 
        issue national standards for pain management and palliative 
        care clinical practice, research, or quality;
except that the Attorney General may take such other actions as may be 
necessary to enforce this Act.''.
  (b) Pain Relief.--Section 304(c) of the Controlled Substances Act (21 
U.S.C. 824(c)) is amended--
          (1) by striking ``(c) Before'' and inserting the following:
  ``(c) Procedures.--
          ``(1) Order to show cause.--Before''; and
          (2) by adding at the end the following:
          ``(2) Burden of proof.--At any proceeding under paragraph 
        (1), where the order to show cause is based on the alleged 
        intentions of the applicant or registrant to cause or assist in 
        causing death, and the practitioner claims a defense under 
        paragraph (1) of section 303(i), the Attorney General shall 
        have the burden of proving, by clear and convincing evidence, 
        that the practitioner's intent was to dispense, distribute, or 
        administer a controlled substance for the purpose of causing 
        death or assisting another person in causing death. In meeting 
        such burden, it shall not be sufficient to prove that the 
        applicant or registrant knew that the use of controlled 
        substance may increase the risk of death.''.

SEC. 202. EDUCATION AND TRAINING PROGRAMS.

  Section 502(a) of the Controlled Substances Act (21 U.S.C. 872(a)) is 
amended--
          (1) by striking ``and'' at the end of paragraph (5);
          (2) by striking the period at the end of paragraph (6) and 
        inserting ``; and''; and
          (3) by adding at the end the following:
          ``(7) educational and training programs for Federal, State, 
        and local personnel, incorporating recommendations, subject to 
        the provisions of subsections (e) and (f) of section 902 of the 
        Public Health Service Act, by the Secretary of Health and Human 
        Services, on the means by which investigation and enforcement 
        actions by law enforcement personnel may better accommodate the 
        necessary and legitimate use of controlled substances in pain 
        management and palliative care.
Nothing in this subsection shall be construed to alter the roles of the 
Federal and State governments in regulating the practice of 
medicine.''.

SEC. 203. FUNDING AUTHORITY.

  Notwithstanding any other provision of law, the operation of the 
diversion control fee account program of the Drug Enforcement 
Administration shall be construed to include carrying out section 
303(i) of the Controlled Substances Act (21 U.S.C. 823(i)), as added by 
this Act, and subsections (a)(4) and (c)(2) of section 304 of the 
Controlled Substances Act (21 U.S.C. 824), as amended by this Act.

SEC. 204. EFFECTIVE DATE.

  The amendments made by this title shall take effect on the date of 
enactment of this Act.

                        II. Purpose and Summary
    The purpose of the Pain Relief Promotion Act is to promote 
pain research and management and palliative care and to make 
clear that medications subject to the Controlled Substances Act 
(``CSA'') may not be lawfully used to assist in suicide or to 
perform euthanasia. In the 105th Congress, the Judiciary 
Committee favorably reported the Lethal Drug Abuse Prevention 
Act, S. 2151 (Report 105-372); this legislation and similar 
goals to the substitute language to H.R. 2260 that the 
Committee now adopts.
    In enacting the Controlled Substances Act of 1970, the 
Congress firmly established the principle that certain types of 
drug substances were subject to national regulation. The 
statute recognizes that ``[m]any of the drugs included within 
this title have a useful and legitimate medical purpose and are 
necessary to maintain the health and general welfare of the 
American public.'' \1\ However, the law also was mindful of the 
fact that illicit traffic use of controlled substances has ``* 
* * a substantial and detrimental effect on the health and 
general welfare of the American people.''\2\ Further, the CSA 
finds that ``[f]ederal control of the interstate incidents in 
traffic in controlled substances is essential to the effective 
control of the interstate incidents in the United States.''\3\
---------------------------------------------------------------------------
    \1\ 21 U.S.C. 801(1).
    \2\ 21 U.S.C. 801(2).
    \3\ 21 U.S.C. 801(6).
---------------------------------------------------------------------------
    H.R. 2260, as adopted by the Judiciary Committee, advances 
the two historical goals of the CSA of promoting the public 
health by making necessary medications available to patients 
and protecting the public safety by curbing illicit diversion 
of these substances. H.R. 2260 explicitly adopts a safe harbor 
that makes clear that physicians and other health care 
professionals acting to alleviate pain or discomfort in the 
usual course of medical practice are protected under the CSA, 
even if such use of a controlled substance may increase the 
risk of death. The legislation also makes clear that the 
diversion of controlled substances for the purpose of causing 
death or assisting another person in causing death is not 
permitted under the CSA.
    Inadequate treatment of pain is a serious public health 
problem affecting hundreds of thousands of patients a year. 
Perhaps ``the biggest obstacle'' to adequate treatment of pain, 
however, is ``ignorance'': Few medical schools or residency 
programs require training in pain management, and many rank-
and-file physicals are unaware of modern advances in palliative 
care.\4\
---------------------------------------------------------------------------
    \4\ S. Brownlee and J. Schrof, ``The Quality of Mercy,'' U.S. News 
and World Report, vol. 122, No. 10 (Mar. 17, 1997): p. 56.
---------------------------------------------------------------------------
    Highlighting the need for improved care, and posing its own 
obstacle to such improvement, is the drive by some for 
acceptance of assisted suicide as a ``quick fix'' supplanting 
the more difficult but more responsible task of caring for 
terminally ill patients' real needs. As the National Hospice 
Organization has warned, ``the acceptance of assisted suicide 
as a way to deal with terminal illness would undercut further 
efforts to increase the public's awareness of hospice as a 
life-affirming option.''\5\
---------------------------------------------------------------------------
    \5\ Brief for Amicus National Hospice Organization at 18, Vacco v. 
Quill, 521 U.S. 793 (1997) and Washington v. Glucksberg, 521 U.S. 702 
(1997).
---------------------------------------------------------------------------
    H.R. 2260 addresses this problem in several ways. In 
addition to definitively establishing that the use of 
controlled substances to alleviate pain or discomfort in the 
usual course of professional practice is authorized and 
encouraged under Federal law, in order to promote better pain 
management, H.R. 2260 authorizes a $5,000,000 program under 
which the Secretary of Health and Human Services may award 
grants to health professions schools, hospices and other sites 
to develop and implement palliative care education and 
training. Third, it authorizes the Agency for Health-care 
Research and Quality in the Department of Health and Human 
Services to collect and disseminate protocols for palliative 
care, while making clear that neither the Department nor the 
Attorney General are authorized to mandate national standards 
of clinical practice in this area.
    The legislation reinforces the widely held view that under 
existing law the purpose of causing death or assisting another 
person in causing death is not a legitimate use of controlled 
substances and is not consistent with public health and safety. 
In order to encourage medical practitioners to prescribe, 
dispense, distribute and administer controlled substances as 
medically appropriate in order to relieve pain and discomfort, 
the bill makes it more difficult to revoke doctors' 
registrations to prescribe controlled substances by raising the 
required standard of proof from the current preponderance of 
the evidence standard to the more difficult to satisfy clear 
and convincing evidence standard.
    It is also important to note that the bill would designate 
this decade as the ``Decade of Pain Control and Research.'' 
This will result in focusing greater attention among scientists 
and practitioners into pain management and research. Further, 
the law charges the Attorney General to carry out educational 
training programs for law enforcement personnel in how better 
to accommodate health professionals' legitimate use of 
controlled substances for pain management.
    In summary, this legislation is premised on the principle 
that the Controlled Substances Act contemplates use of 
controlled substances to alleviate pain and suffering and that 
this purpose cannot be turned on its head--and turned against a 
central teaching of the Hippocratic Oath--First, do no harm--by 
allowing controlled substances to be intentionally used as 
agents of death.
    Under the Pain Relief Promotion Act, as amended, Congress 
finds that Federal law regarding controlled substances allows 
dispensing and distributing controlled substances only by 
properly registered practitioners for legitimate medical 
purposes. The bill finds that the dispensing and distribution 
of controlled substances, acts which affect interstate 
commerce, are not legitimate medical purposes when used to 
assist in a suicide or euthanasia. At the same time, the 
measure recognizes the key role that controlled substances can 
play in the legitimate medical use of relieving pain and 
discomfort.

              III. Background and Need for the Legislation
    A number of recent events have sparked a national debate 
over the interwined legal and ethical issues surrounding end-
of-life care, especially the provision of adequate pain relief 
and palliative care and physician-assisted suicide. These 
include: the involvement of Jack Kevorkian in a lengthy series 
of assisted suicides before being finally convicted of homicide 
after giving a lethal injection to a man with severe 
disabilities in a videotape aired on national television; two, 
recent Supreme Court cases on assisted suicide, Vacco v. Quill 
\6\ and Washington v. Glucksberg;\7\ enactment of Oregon's 
Measure 16 (the ``Death with Dignity Act'');\8\ Presidential 
signature of the Assisted Suicide Funding Restriction Act of 
1997 (Public Law 105-12) \9\; and the Senate Judiciary 
Committee's favorable action on S. 2151 in the 10th Congress.
---------------------------------------------------------------------------
    \6\ 521 U.S. 793 (1997).
    \7\ 521 U.S. 702 (1997).
    \8\ Or. Rev. Stat Sec. 127.800-127.995
    \9\ The Assisted Suicide Funding Restriction Act of 1997, 111 Stat. 
23, Apr. 30, 1997.
---------------------------------------------------------------------------
    On November 8, 1994, Oregon became the only jurisdiction in 
the United States authorizing physician-assisted suicide as a 
matter of State law when the State's voters approved Ballot 
Measure 16 by a slight margin of 51 percent to 49 percent.\10\ 
On November 27, 1994, however, a lawsuit was filed against the 
measure alleging its unconstitutionality on equal protection 
and due process grounds that prevented it from going into 
immediate effect.\11\ On August 3, 1995, a Federal district 
court held the law unconstitutional as a violation of the 14th 
amendment's equal protection clause.\12\ The State of Oregon 
appealed the decision, and on February 27, 1997, the ninth 
circuit overturned the lower court's decision without reaching 
the merits, instead ruling that the plaintiffs lacked 
standing.\13\ On October 27, 1997, the ninth circuit 
accordingly lifted the injunction against the act, which thus 
officially went for the repeal of the act by a margin of 60 
percent to 40 percent. However, on November 5, 1997, the 
Federal Drug Enforcement Administration issued a ruling that 
regardless of the change in Oregon's State law, under the 
Federal Controlled Substances Act federally controlled drugs 
could not legally be prescribed or administered to assist 
suicide, either in Oregon or any other State. (After the ruling 
was later reversed by Attorney General Reno, as described in 
detail below, all of the drugs officially reported as having 
been used to assist in the death of patients under Oregon's 
Death with Dignity Act were federally controlled 
substances.\14\) Meanwhile, on June 26, 1997, the U.S. Supreme 
Court reversed two circuit courts of appeal rulings that had 
struck down the laws of New York and Washington preventing 
assisting suicide; the Nations highest court concluded that the 
laws prohibiting assisting suicide do not violate the U.S. 
Constitution. The Solicitor General of the United States filed 
briefs as amicus curiae opposing the overturning of the State 
laws in each case. In his brief in the Glucksberg case, the 
Solicitor General emphasized that there is a clear ethical and 
legal distinction between pain control that unintentionally 
hastens death and the prescribing of lethal drugs with the 
intent to cause death:
---------------------------------------------------------------------------
    \10\ See Spencer Heinz, ``Assisted Suicide: Advocates Weigh In,'' 
Oregonian, Dec. 9, 1994, at A1. The Death With Dignity Act authorizes 
terminally ill Oregon residents, those who are determined to have fewer 
than 6 months to live, to obtain a lethal prescription. In other 
circumstances, Or. Rev. Stat. Sec. 163.125 continues to apply: 
``Criminal homicide constitutes manslaughter in the second degree when 
* * * [a] person intentionally causes or aids another person to commit 
suicide.'' (Emphasis added.)
    \11\ Federal District Court Judge Michael Hogan agreed with the 
opponents and issued a temporary restraining order against 
implementation of the act on the day before it was to go into effect, 
pending a full hearing of their claims. On December 27, 1994, Judge 
Hogan placed his temporary restraining with a preliminary injunction, 
further delaying implementation of the act. Lee v. Lee Oegon, 891 F. 
Supp. 1429, 1431 (D. Or. 1995).
    \12\ Lee v. Oregon, 891 F. Supp. 1429, 1431 (D. Or. 1995).
    \13\ 107 F. 3rd 1382 (9th Cir. 1997). On May 16, 1997, a petition 
for writ of certiorari was filed with the U.S. Supreme Court, and the 
Court denied the petition on October 14, 1997. 522 U.S. 927 (1997).
    \14\ A Sullivan et al., ``Legalized Physician-Assisted Suicide in 
Oregon--The Second Year,'' New England Journal of Medicine, vol. 342, 
no. 8 (Feb. 24, 2000); p. 598, 599; A. Chin et al., ``Legalized 
Physician-Assisted Suicide in Oregon--The First Year's Experience,'' 
New England Journal of Medicine, vol. 340, no. 7 (Feb. 18, 1999), p. 
577, 578 (of 21 lethal prescriptions, 20 were for 9g of secobarbitol or 
pentobarbitol; one was for (26 of the 27 patients were given 9g or more 
of secobarbitol; one received 6 g of phenobarbitol).

        [T]he ethical standards of the medical community have 
        long permitted physicians to prescribe medication in 
        sufficient doses to relieve pain, even when the 
        necessary dose will hasten death. * * * So long as the 
        physician's intent is to relieve pain, and not to cause 
        death, such treatment does not violate the ethical 
        standards of the medical community.\15\
---------------------------------------------------------------------------
    \15\ Brief for the United States as Amicus Curiae Supporting 
Petitioners at 17-18, Washington v. Glucksberg, 521 U.S. 702 (1997).

    The Supreme Court concurred with this distinction, noting, 
``Just as a State may prohibit assisting suicide while 
permitting patients to refuse unwanted lifesaving treatment, it 
may permit palliative care related to that refusal, which may 
have the foreseen but unintended `double effect' of hastening 
the patient's death. See New York task force. When Death is 
Sought, supra, n. 6, at 163 (`It is widely recognized that the 
provision of pain medication is ethically and professionally 
acceptable even when the treatment may hasten the patient's 
death, if the medication is intended to alleviate pain and 
severe discomfort, not to cause death').'' \16\
---------------------------------------------------------------------------
    \16\ Vacco v. Quill, 521 U.S. 793, 808 n. 11 (1997).
---------------------------------------------------------------------------
    The Solicitor General also noted that ``no Federal law * * 
* either authorizes or accommodates physician assisted 
suicide.'' \17\
---------------------------------------------------------------------------
    \17\ Solicitor General's Amicus Brief at 2, Glucksberg. Relevant 
portions of the Glucksberg brief are as follows: Health facilities 
controlled by the Federal Government ``do not permit physicians to 
assist patients in committing suicide by providing lethal dosages of 
medication.'' Id. at 1; ``Overriding State interests justify the 
State's decision to ban physicians from prescribing lethal 
medication.'' Id. at 9; ``There is an important and common-sense 
distinction between withdrawing artificial supports so that a disease 
will progress to its inevitable end, and providing chemicals to be used 
to kill someone.'' Id.; ``Once a State decides to create an exception 
to its prohibition against assisted suicide, there is no obvious 
stopping point.'' Id. at 10; ``One special source of concern is that 
terminally ill persons who contemplate suicide often suffer from 
undiagnosed depression and inadequately treated pain * * *. In most 
cases, once appropriate treatment is provided, the desire for suicide 
abates.'' Id. at 19; ``Any exception to the ban on assisted suicide 
therefore runs a very significant risk that persons with treatable 
depression and pain will be allowed to commit suicide. A State has an 
overriding interest in avoiding that risk and in protecting persons who 
would want to remain alive if provided with the appropriate 
treatment.'' Id. at 20; ``Another area of concern is that terminally 
ill patients are often extremely vulnerable and susceptible to 
influence by physicians, family members, and others on whom they depend 
for support * * *. The point is not that physicians or family members 
will attempt to coerce persons into committing suicide, although there 
may be some cases of that. The real dangers are much more subtle and 
extremely difficult to monitor and address.'' Id.; ``Another difficulty 
with permitting doctors to prescribe lethal drugs for terminally ill 
patients is that illnesses can be misdiagnosed as terminal * * *. If 
the State were to create an exception to its ban on assisted suicide 
for terminally ill adults, such a misdiagnosis could have tragic 
consequences * * *. The State has an ovewhelmingly strong interest in 
preventing such tragedies from occurring.'' Id. at 22; In the 
Netherlands, which allowed assisted suicide with safeguards, ``a recent 
study shows that those procedural safeguards have not worked.'' Id. at 
23; ``[T]here is a very significant distinction between removing 
artificial supports--and thereby allowing the underlying disease to 
progress to its inevitable end--and providing chemicals to kill 
someone. In one case, the cause of death can reasonably be viewed as 
the underlying disease; in the other, the cause of death can only be 
viewed as the lethal medication.'' Id. at 24; Similarly, after 
reviewing various Federal policies that forbid physician-assisted 
suicide in Veteran's Administration hospitals, military hospitals, the 
National Institutes of Health, and the Indian Health Service, the 
Solicitor General's amicus brief in Vacco v. Quill stated: ``No Federal 
law authorizes or encourages physician assisted suicide.'' Brief for 
the United States as Amicus Curiae Supporting Petitioners at 2, Vacco.
---------------------------------------------------------------------------
    In upholding laws preventing assisting suicide, the Supreme 
Court described the legitimacy of the governmental interests at 
stake:

          Those who attempt suicide--terminally ill or not--
        often suffer from depression or other mental disorders. 
        See New York Task Force 13-22, 126-128 (more than 95 
        percent of those who commit suicide had a major 
        psychiatric illness at the time of death; among the 
        terminally ill, uncontrolled pain is a ``risk factor'' 
        because it contributes to depression): * * * Research 
        indicates * * * that many people who request physician-
        assisted suicide withdraw that request if their 
        depression and pain are treated. H. Hendin, ``Seduced 
        by Death: Doctors, Patients and the Dutch Cure'', 24-25 
        (1997) (suicidal, terminally ill patients ``usually 
        respond well to treatment for depressive illness and 
        pain medication and are then grateful to be alive'') * 
        * *

           *       *       *       *       *       *       *

          [T]he State has an interest in protecting vulnerable 
        groups--including the poor, the elderly, and disabled 
        persons--from abuse, neglect, and mistakes. * * * [T]he 
        New York Task Force warned that ``[l]egalizing 
        physician-assisted suicide would pose profound risks to 
        many individuals who are ill and vulnerable. * * * The 
        risk of harm is greatest for the many individuals in 
        our society whose autonomy and well-being are already 
        compromised by poverty, lack of access to good medical 
        care, advanced age, or membership in a stigmatized 
        social group.'' New York Task Force 120, see 
        ``Compassion in Dying,'' 49 F.3d, at 593 (``[A]n 
        insidious bias against the handicapped--again coupled 
        with a cost-saving mentality--makes them especially in 
        need of Washington's statutory protection''). If 
        physician-assisted suicide were permitted, many might 
        resort to it to spare their families the substantial 
        financial burden of end-of-life health-care costs.
          The State's interest here goes beyond protecting the 
        vulnerable from coercion; it extends to protecting 
        disabled and terminally ill people from prejudice, 
        negative and inaccurate stereotypes, and ``societal 
        indifference.'' 49 F.3d, at 592. The State's assisted-
        suicide ban reflects and reinforces its policy that the 
        lives of terminally ill, disabled, and elderly people 
        must be no less valued than the lives of the young and 
        healthy, and that a seriously disabled person's 
        suicidal impulses should be interpreted and treated the 
        same way as anyone else's.\18\
---------------------------------------------------------------------------
    \18\ Glucksberg, 521 U.S. at 730, 731-32.

    Members of the Court also expressed concern that legal 
acceptance of assisted suicide could erode society's 
willingness to expand pain management and other aspects of 
palliative care for dying patients. As Justice Breyer noted 
during oral argument, the Netherlands, which permits assisted 
suicide, had been found by a select committee of the British 
House of Lords to contain only three palliative care centers, 
compared with 185 in Great Britain where assisted suicide is 
forbidden.\19\
---------------------------------------------------------------------------
    \19\ Oral Arguments in Vacco v. Quill, reprinted in 12 issues in 
``Law & Medicine,'' 417, 437 (spring 1997).
---------------------------------------------------------------------------
    While litigation was still pending challenging Oregon's law 
authorizing assisted suicide, on the one hand, and the laws of 
Washington and New York prohibiting it, on the other hand, 
Congress debated the issue of whether the Federal Government 
would facilitate euthanasia and assisting suicide should it 
become legal. On April 30, 1997, after the bill had passed the 
House by a vote of 398-16 and the Senate by a vote of 99-0, 
President William J. Clinton signed the Assisted Suicide 
Funding Restriction Act of 1997.\20\ The law prohibits the use 
of Federal funds to cause a patient's death. It also 
effectively prohibits the practice of assisted suicide in 
Federal health facilities, removes it from the scope of 
``rights'' under State laws of which patients must be informed 
under the Federal Patient Self-Determination Act, and forbids 
Federal subsidies to health programs or benefit packages which 
include assisted suicide.
---------------------------------------------------------------------------
    \20\ Public Law 105-12, April 30, 1997, 111 Stat. 23, largely 
codified at 42 U.S.C. 14401 to 14408.
---------------------------------------------------------------------------
    Of central importance to the law was the intent-based 
distinction it made between the provision of services for the 
purpose of alleviating pain even then they may increase the 
risk of death and their provision for the purpose of causing 
death. 42 U.S.C. 14402(b)(4) provided that nothing in the Act

        shall be construed to apply to or to affect any 
        limitation relating to * * * the use of an item, good, 
        benefit, or service furnished for the purpose of 
        alleviating pain or discomfort, even if such use may 
        increase the risk of death, so long as such item, good, 
        benefit, or service is not also furnished for the 
        purpose of causing, or the purpose of assisting in 
        causing, death, for any reason.\21\
---------------------------------------------------------------------------
    \21\ In its letter endorsing the Assisted Suicide Funding 
Restriction Act of 1997, the American Medical Association emphasized 
the positive role of this provision:

      The AMA is particularly pleased to note that your bill 
      acknowledges--in its ``Rules of Construction'' section--the 
      appropriate role for physicians and other caregivers in 
      end-of-life patient care.* * * Most important * * * is the 
      Rule of Construction which recognizes the medical principle 
      of ``secondary effect,'' that is, the provision of adequate 
      palliative treatment, even though the palliative agent may 
      also forseeably hasten death. This provision assures 
      patients and physicians alike that legislation opposing 
      assisted suicide will not chill appropriate palliative and 
---------------------------------------------------------------------------
      end-of-life care.

Letter from P. John Seward, M.D., executive vice president, American 
Medical Association, to Senator John Ashcroft 1 (Feb. 12, 1997).

    It is noteworthy that this intent-based distinction in 
existing law governs not only Federal funding, but also the 
provision of medical treatment

          (1) by or in a health care facility owned or operated 
        by the Federal Government, or
          (2) by any physician or other individual employed by 
        the Federal Government to provide health care services 
        within the scope of the physician's or individual's 
        employment * * *.\22\
---------------------------------------------------------------------------
    \22\ 42 U.S.C. 14402(c).

    President Clinton lauded the bill, saying it ``will allow 
the Federal Government to speak with a clear voice in opposing 
these practices,'' and warning that ``to endorse assisted 
suicide would set us on a disturbing and perhaps dangerous 
path.'' \23\
---------------------------------------------------------------------------
    \23\ Statement by President William Jefferson Clinton upon signing 
H.R. 1003, 33 weekly comp. Pres. Doc. 617 (May 5, 1997).
---------------------------------------------------------------------------
    In this act Congress also recognized the need to promote 
pain management and palliative care in part as a bulwark 
against desperate resort to assisted suicide. The act urged 
priority attention to this field in grant programs managed by 
the Department of Health and Human Services, and commissioned 
the Government Accounting Office to conduct a study of medical 
school training in palliative care. The disappointing findings 
of that study have highlighted the need for a more focused 
commitment to professional training in palliative care, like 
that found in the present legislation.

        ``The availability of continuing medical education 
        courses that focus on palliative care issues for 
        terminally or chronically ill people appears limited,'' 
        the GAO found.\24\ The American Medical Association's 
        database of over 2,000 accredited continuing medical 
        education activities found that few specifically 
        addressed palliative care. A recent MedPAC report on 
        end of life care stated: ``Much knowledge of effective 
        palliative care exists, but it has been infrequently 
        taught to health care professionals and infrequently 
        put into practice.'' \25\
---------------------------------------------------------------------------
    \24\ U.S. General Accounting Office, ``Suicide Prevention: Efforts 
to Increase Research and Education in Palliative Care'' (Washington, 
DC: GPO, 1998), GAO/HEHS-98-128, p. 11.
    \25\ Medicare Payment Advisory Commission, ``Report to the 
Congress: Selected Medicare Issues'' (Washington, DC: GPO, 1998), p. 
120.

    This lack of medical education and public focus comes at 
great detriment to patients. As stated in the GAO report: 
``People suffering from terminal or chronic illnesses or from 
disabilities are considered especially vulnerable to suicide 
because their need or desire for palliative- or comfort-care 
may not be adequately met in a health system that focuses on 
curative care.'' \26\
---------------------------------------------------------------------------
    \26\ GAO, ``Suicide Prevention,'' p. 1.
---------------------------------------------------------------------------
    Shortly after the effective date of the Assisted Suicide 
Funding Restriction Act, on July 25, 1997, the Chairmen of the 
Senate and House Judiciary Committees, Senator Orrin Hatch and 
Representative Henry Hyde, wrote a joint letter to Drug 
Enforcement Administrator Thomas Constantine inquiring whether 
delivering, distributing, dispensing, prescribing, filling a 
prescription, or administering a controlled substance in the 
deliberate assistance of a suicide would violate the Controlled 
Substances Act, regardless of whether assisting suicide were to 
become legal as a matter of State law.
    As noted in the July, 1997, letter to Mr. Constantine, 
under existing regulations (21 CFR 1306.04), a controlled 
substance must be used ``for a legitimate medical purpose by an 
individual practitioner acting in the usual course of his 
professional practice.''
    A panoply of national and State medical associations have 
condemned the practice of assisting suicide, both in testimony 
to the Congress and in briefs accompanying the Vacco and 
Washington cases. Even before enactment of the Assisted Suicide 
Funding Restriction Act of 1997, the Health Care Financing 
Administration had determined that physician-assisted suicide 
is not ``reasonable and necessary'' to the diagnosis or 
treatment of disease and injury, and therefore is not 
reimbursable under Medicare.\27\
---------------------------------------------------------------------------
    \27\ Letter of May 1, 1996, from Debbie I. Chang, Director of the 
Office of Legislative and Intergovernmental Affairs, Health Care 
Financing Administration.
---------------------------------------------------------------------------
    In response to the letter of Chairman Hatch and Hyde, the 
Drug Enforcement Administration undertook a serious review of 
professional organizations' views, case law, legal briefs, law 
review articles, and State laws related to assisted suicide.
    Based on that study, in a November 5, 1997, response, DEA 
Administrator Constantine advised the Members of Congress that 
``we are persuaded that delivering, dispensing or prescribing a 
controlled substance with the intent of assisting a suicide 
would not be under any current definition a `legitimate medical 
purpose' '' ``As a result,'' Administrator Constantine found, 
``the activities you described in your letter to us would be, 
in our opinion, a violation of the CSA.''
    Several months later, the two Chairmen received a letter 
from Attorney General Janet Reno dated June 5, 1998. This 
letter had the effect of upholding the DEA position with 
respect to the use of controlled substances for assisting 
suicide or euthanasia in any State which has not authorized the 
practice as a matter of State law, and even within Oregon to 
the extent assisting suicide remains illegal (for example, for 
a person who is not predicted to die within 6 months). She 
wrote, ``Adverse action under the CSA may well be warranted * * 
* where a physician assists in a suicide in a state that has 
not authorized the practice under any conditions, or where a 
physician fails to comply with state procedures in doing so.'' 
\28\
---------------------------------------------------------------------------
    \28\ More recently, a letter from the DEA has confirmed this 
position. ``H.R. 2260 does not alter the long-standing federal 
requirement that controlled substances be dispensed only for a 
legitimate medical purpose by a practitioner acting in the usual course 
of professional practice. The bill simply makes clear that, in 
determining whether a registration is consistent with the public 
interest, the Attorney General (and DEA, by designation), `shall give 
no force and effect to State law authorizing assisted suicide or 
euthanasia.' Since Oregon is the only State with a law permitting 
assisted suicide, DEA's authority to take administrative action in 
every other state would not be changed by H.R. 2260.'' Letter from 
Donnie R. Marshall, Acting Administrator, Drug Enforcement 
Administration (Apr. 5, 2000), p. 2 (emphasis added).
---------------------------------------------------------------------------
    However, the Attorney General's letter overruled the DEA's 
determination that federally controlled substances could not be 
used to assist suicides when such assistance is permitted as a 
matter of Oregon State law. ``[A]dverse action against a 
physician who has assisted in a suicide in full compliance with 
the Oregon act would not be authorized by the CSA,'' she wrote.
    The Attorney General's opinion and the need for legislation 
to reverse it can best be evaluated in the context of the 
history and structure of the Controlled Substance Act.
    The Controlled Substances Act of 1970 (CSA) provides a 
uniform national standard for the control of potentially 
dangerous drugs, and a system of enforcement and penalties that 
is, in important respects, independent of State law. The CSA 
prohibits any distribution of controlled substances unless the 
distribution is authorized pursuant to a statutory 
exception.\29\
---------------------------------------------------------------------------
    \29\ According to 21 U.S.C. 841, it is ``unlawful for any person 
[to] knowingly or intentionally * * * distribute, or dispense * * * a 
controlled substance'' * * * ``[e]xcept as authorized by this 
subchapter [Control and Enforcement, 801 904].''
---------------------------------------------------------------------------
    One such exception is distribution pursuant to registration 
by the Attorney General under 21 U.S.C. 823. Physician and 
pharmacists may apply to The Drug Enforcement Administration 
(DEA) for a Federal license to prescribe and administer 
controlled substances, called a DEA registration. The primary 
role of DEA with respect to pharmaceutical controlled 
substances is to prevent, detect, and investigate their 
diversion from legitimate uses while ensuring their 
availability for legitimate medical use.\30\
---------------------------------------------------------------------------
    \30\ All DEA policies, procedures, and investigative programs with 
respect to this issue are guided by the underlying principle stated in 
the Code of Federal Regulations which links the validity of any 
prescription for a controlled substance to the requirement that it be 
``issued for a legitimate medical purpose by an individual practitioner 
acting in the usual course of his professional practice.'' 21 CFR 
1306.04.
---------------------------------------------------------------------------
    While physicians receive their licenses to practice 
medicine from State medical boards, they receive this separate 
registration to prescribe controlled substances directly from 
the DEA.\31\ Prescriptions for these potentially dangerous 
drugs must be written using DEA registration numbers.
---------------------------------------------------------------------------
    \31\ As Congress declared in 1984 when it last revised this part of 
the CSA. Registration of a physician under the Controlled Substances 
Act is a matter entirely separate from a physician's State license to 
practice medicine. Therefore, revocation of registration only precludes 
a physician from dispensing substances controlled under the Controlled 
Substances Act and does not preclude his dispensing other prescription 
drugs or his continued practice of medicine. S. Rep. No. 98-225, at 267 
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3449 n. 40.
---------------------------------------------------------------------------
    The CSA was amended in 1984 to strengthen the DEA's ability 
to prevent diversion of federally regulated prescriptions drugs 
for illicit purposes.\32\ The chief concern cited as 
justification for the 1984 amendments was the potential of 
controlled substances to cause physical harm and death when 
used for something other than a legitimate medical purpose. 
According to Representative Hughes, the chief House sponsor of 
the measure, ``The bill gives to DEA greater latitude to 
suspend or revoke the registration of a practitioner who 
dispenses drugs in a manner that threatens the public health 
and safety.'' \33\
---------------------------------------------------------------------------
    \32\ The amendments were approved by the U.S. Senate 91 to 1 on 
February 2, 1984, as part of a Comprehensive Crime Control Act (S. 
1762). Almost identical language was approved by the House 392 to 1 on 
September 18, 1984. The House and Senate versions were reconciled and 
ultimately approved as part of H.J. Res. 648, a continuing resolution 
which became law on October 12, 1984 (Public Law No. 98-473, Stat. 
1987).
    \33\ 130 Cong. Rec. 25849 (1984). Representatives Hughes also cited 
a Government study indicating that ``prescription drugs are responsible 
for close to 70 percent of the deaths and injuries due to drug abuse.'' 
Id. at 25849.
---------------------------------------------------------------------------
    The 1984 amendments were designed to give the DEA more 
independent authority to revoke a physician's registration in 
cases where a State was unable or unwilling to intervene.\34\
---------------------------------------------------------------------------
    \34\ Representative Hamilton Fish, another sponsor of the 
amendments, said giving such flexibility to the Federal Government was 
necessary because States often did not respond adequately to these 
abuses: ``State policing of these activities, as well as peer review 
within the profession, have not been adequate control measures. State 
laws regarding the dispensing of controlled substances are also 
inadequate.'' Id. at 25849.
    At a hearing before the House Commerce Subcommittee on Health and 
the Environment, the DEA called the expanded Federal authority to 
revoke practitioner registration ``one of the most important sections 
of the bill,'' not only because States were often ill-equipped to 
enforce their own drug laws but also because ``many controlled drug 
violations involving prescription drugs are not felonies under State 
law and therefore cannot be used in a DEA revocation action'' under 
then-existing law. Dangerous Drug Diversion Control Act of 1984: 
Hearing on H.R. 5656 before the Subcommittee on Health and the 
Environment of the House Committee on Energy and Commerce, 98th Cong. 
404 (1984) (statement of Gene R. Haislip, Deputy Assistant 
Administrator, Drug Enforcement Administration).
---------------------------------------------------------------------------
    21 M.S.C. 823 of the GSA sets forth requirements for 
controlled substances registrations and section 824 sets forth 
grounds for revocation. Physicians who abuse their 
registrations and prescribe controlled substances for 
nonmedical purposes are subject to license revocation under 
section 824 and to potential criminal prosecution under section 
841.\35\
---------------------------------------------------------------------------
    \35\ In practice, a criminal proceeding is almost never initiated. 
Instead, an administrative penalty is applied (simply revoking or 
suspending the physician's special Federal privilege to handle 
controlled substances), and this effectively prevents further illicit 
use. Typically, the DEA does not initiate action at all until after the 
State has acted against a registrant.
---------------------------------------------------------------------------
    Section 823 provides that the Attorney General may deny an 
application for registration ``if such registration would be 
inconsistent with the public interest'' \36\ as determined by 
consideration of several factors.\37\
---------------------------------------------------------------------------
    \36\ As Representative Charles Rangel said in support of the 
amendments:

        Under current law, the DEA must register physicians, 
      pharmacies, or other practitioners if they are authorized 
      to dispense drugs by the law of the State in which they 
      practice. * * * The public interest standard added by H.R. 
      5656 will provide greater flexibility to deny or revoke 
---------------------------------------------------------------------------
      registrations in the most egregious cases.

130 Cong. Rec. 25,852 (1984).
---------------------------------------------------------------------------
    \37\ 21 U.S.C. 824(a)(4) provides that one of the grounds for 
revocation is the commission of ``such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.''
---------------------------------------------------------------------------
    Two of the factors listed under 823 that are relevant to 
assisted suicide are: compliance with State law relating to 
controlled substances (21 U.S.C. 823(f)(4)), and the public 
health and safety (21 U.S.C. 823(f)(5)). Most States 
specifically prohibit assisted suicide; no State has authorized 
assisted suicide except Oregon.\38\
---------------------------------------------------------------------------
    \38\ Currently, 44 States prohibit assisted suicide, either through 
statutes or common law. Thirty-eight States prohibit assisted suicide 
through statutes: Alaska: (Ak. Stat. Sec. 11.41.120 [1998]; Arizona: 
(Az. Rev. Stat. Ann., Sec. 13-1103(A)(3) [West Supp. 1998-1999]); 
Arkansas: (Ark. Code Ann., Sec. 5-10-104(a)(2) [Michie 1993], Sec. 5-
10-106 [Supp. 1999]); California: (CA Penal Code, Sec. 401 [West 
1999]); Colorado: (CO Rev. Stat. Ann., Sec. 18-3-104(1)(b) [West 
1999]); Connecticut: (CT Gen. Stat. Ann., Sec. 53a-56(a)(2) [West 
1994]); Delaware: (DE Code Ann., title 11 Sec. 645 [Michie 1995]); 
Florida: (FL Stat. Ann., Sec. 782.08 [West 1992]); Georgia: (GA Code 
Ann., Sec. 16-5-5(b) [Michie 1998]), Hawaii: (HI Rev. Stat., Sec. 707-
702(1)(b) [Michie 1999]); Illinois: (IL Comp. Stat., ch. 720, Sec. 5/
12-31(a)(2) [Smith-Hurd Supp. 1999]); Indiana: (IN Stat. Ann., Sec. 35-
42-1-2.5 [Burns 1998]); Iowa: (IA Code Ann. Sec. 707A.2 [West Supp. 
1999]); Kansas: (KS Stat. Ann., Sec. 21-3406 [Supp. 1999]); Kentucky: 
(Ken. Stat. Ann., Sec. 216.302 [Michie 1998]); Louisiana: (La. Rev. 
Stat. Ann. Sec. 14: 32.12 [West 1997]); Maine: (Me. Rev. Stat. Ann., 
tit. 17-A Sec. 204 [West 1983]); Maryland (Assisted Suicide--
Prohibition Act, ch. 700, 1999 Laws of Maryland); Michigan: (Mich. 
Comp. Laws Ann., Sec. 750.329a [Supp. 1999]); Minnesota: (Minn. Stat. 
Ann., Sec. 609.215 [Supp. 1999]); Mississippi: (Miss. Code Ann., 
Sec. 97-3-49 [1994]); Missouri: (Mo. Ann. Stat., 565.023(1)(2) [1999]); 
Montana: (Mont. Code Ann., Sec. 45-5-105 [1999]); Nebraska: (Neb. Rev. 
Stat. Ann., Sec. 28-307 [Michie 1995]); New Hampshire: (N.H. Rev. Stat. 
Ann. Sec. 630:4 [1996]): New Jersey: (N.J. Stat. Ann. Sec. 2C: 11-6 
[West 1995]); New Mexico: (N.M. Stat. Ann., Sec. 30-2-4 [Michie 1994]); 
New York: (N.Y. Penal Law, Sec. Sec. 120.30, 125.15(3) [West 1998]); 
North Dakota: (N.D. Cent. Code, Sec. 12.1-16-04 [Michie 1997]); 
Oklahoma: (Okla. Stat. Ann., Sec. Sec. 813, 814, 815 [West 1983], 
Sec. Sec. 3141.1 to 3141.8 [West Supp. 1999]); Pennsylvania: (Penn. 
Cons. Stat. Ann., tit. 18 Sec. 2505(b) [West 1998]); Rhode Island: 
(R.I. Gen. Laws, Sec. Sec. 11-60-1 through 11-60-5 [West Supp. 1998]); 
South Carolina: (S.C. Code of Laws Sec. 16-3-1090 [West Supp. 1998]); 
South Dakota: (S.D. Codified Laws Sec. 22-16-37 [Michie 1998]); 
Tennessee: (Tenn. Code Ann., Sec. 39-13-216 [Michie 1997]); Texas: 
(Tex. Penal Code Ann., Sec. 22.08 [West 1994]); Virginia: (Va. Code 
Ann., Sec. 8.01-622.1 [Michie Supp. 1999]); Washington: (Wash. Rev. 
Code Ann., Sec. 9A.36.060 [West 1988]); Wisconsin: (Wis. Stat. Ann., 
Sec. 940.12 [West 1996]); Six States prevent assisting suicide through 
application of the common law of crimes: Alabama, Idaho, Massachusetts, 
Nevada, Vermont, and West Virginia. Issue Brief, Health Policy Tracking 
Service, National Conference of State Legislature, (Sept. 17, 1999) 
(Maria Rothoner and Elizabeth Kaiser). It is also arguable that Ohio 
prohibits assisting suicide under the common law. Blackburn v. State, 
23 Ohio St. 146 (1872). It is also noteworthy that in circumstances 
other than those covered by the Oregon Death with Dignity Act, Oregon 
prohibits assisting suicide by statute. Or. Rev. Stat. Sec. 163.125 
provides, ``Criminal Homicide constitutes manslaughter in the second 
degree when * * * [a] person intentionally causes or aids another 
person to commit suicide.''
---------------------------------------------------------------------------
    Public health and safety has been invoked as a separate 
ground for revoking the registrations of physicians who 
prescribe drugs used in lethal overdoses.\39\ In some cases, 
the physicians were found to have been negligently involved in 
suicides or attempted suicides.\40\
---------------------------------------------------------------------------
    \39\ See, e.g., ``Denial of Registration of Dr. Samuel Fertig,'' 49 
Fed. Reg. 6577 (Feb. 22, 1984) (denied a registration for prescribing 
massive quantities of controlled substances to several young people who 
used them in lethal overdoses, despite fact that State license had been 
restored, on grounds that he ``was responsible, directly or indirectly, 
for the deaths of several young people''); ``Revocation of Registration 
of Dr. Murray Walker,'' 55 Fed. Reg. 5306 (Feb. 14, 1990) (registration 
revoked for prescribing Percodan for nonmedical purposes to several 
people, one of whom died of an overdose, the DEA stating, ``Substances 
are controlled because they are potentially dangerous and therefore 
should be handled with extreme care. Respondent has failed to exercise 
such care and, as a result, has ignored his duties as a health care 
professional to protect the public health and safety from the illicit 
use of these drugs.''). See 21 U.S.C. 824(c) for the procedure for such 
a suspension or revocation, and 21 U.S.C. 824(d) for the authority to 
``suspend any registration simultaneously with the institution of 
proceedings under this section, in cases where [the Attorney General] 
finds that there is an imminent danger to the public health or 
safety.''
    \40\ See, e.g., ``Denial of registration of Dr. Pompeyo Q. Braga 
Bonado,'' 55 Fed. Reg. 37579 (Sept . 12 1990). Here, the DNA found that 
granting a registration to this physician would be ``clearly contrary 
to the public interest.'' id. at 37580. The physician had prescribed 
controlled substances to several individuals ``for no legitimate 
medical purpose,'' including to one man addicted to Percocet who was 
hospitalized after a suicide attempt. ``As a health care professional 
and DEA registrant,'' the DEA stated, ``Respondent bears a heavy 
responsibility to ensure that the controlled substances he prescribes 
are not abused.'' id. at 37580.
---------------------------------------------------------------------------
    Each of these cases was theoretically a candidate for 
criminal prosecution under section 841, but, apparently, no 
Federal criminal prosecution followed. Even where physicians 
were previously convicted of manslaughter under State law for 
negligent and reckless involvement in a suicide or other lethal 
overdose, the separate Federal standard of ``public health and 
safety'' was the basis upon which the registration was revoked 
and, in one case, reinstatement repeatedly denied.\41\
---------------------------------------------------------------------------
    \41\ In the case of ``Revocation of Registration of Hugh Schade, 
M.D.,'' 60 Fed. Reg. 56354 (Nov. 8, 1995), Dr. Schade gave potentially 
lethal amounts of Darvocet to a depressed patient who used them to 
commit suicide. Giving these drugs to a patient in this mental state, 
said one expert witness, was ``like handing him a loaded gun.'' While 
Dr. Schade was also convicted of negligent homicide under State law 
because of this case, his DEA application was denied not on the basis 
that he had violated a State law, but on the separate basis that his 
conduct objectively threatened ``public health and safety''.
    In the case of ``Revocation Registration of David W. Bradway, 
M.D.,'' 48 Fed. Reg. 49937 (Oct. 28, 1983), the physician's 
registration was revoked after conviction under State law on various 
counts, most notably ``one count of manslaughter by unlawfully 
distributing controlled substances in such a grossly negligent [and] 
reckless manner as to cause the death of an individual'' Id. at 49937. 
Years later, after allegedly rehabilitating and resuming medical 
practice, the physician applied for a new DEA registration; citing the 
fact that ``a death was directly attributable to Respondent's misuse of 
his DEA Certificate of Registration,'' the DEA denied the application, 
stating:

      It is the position of the DEA that a Certificate of 
      Registration to handle controlled substances is a 
      privilege, not a right, and it should only be granted to 
      doctors who have demonstrated high standards of ethical 
      conduct and who are completely trustworthy in handling 
      dangerous controlled substances which, as can be seen in 
      this case, can have a devastating impact on individuals who 
---------------------------------------------------------------------------
      abuse them.

54 Fed. Reg. at 53384. In 1992 he again applied for a DEA registration, 
but due to ``the egregious nature of Respondent's past conduct,'' the 
DNA ruled in 1994 (15 years after the patient's death) that ``the 
registration of the Respondent is still not in the public interest''. 
Id. at 6299.

    This background indicates that H.R. 2260 does not expand 
Federal authority to act against misuse of controlled 
substances in 49 States, and that its application in Oregon is 
fully consistent with current understanding of the relationship 
between State and Federal authority under the CSA.

                    IV. Section-by-Section Analysis
    Following is a section-by-section analysis of the 
Chairman's substitute as ordered reported by the Committee on 
April 27, 2000:
Section 1. Short title
    Entitles the act the ``Pain Relief Promotion Act of 2000.''
Section 2. Findings
    Makes a series of findings about the importance of 
emphasizing pain management and palliative care in the first 
decade of the new millennium, the regulation of drugs with a 
potential for abuse under the Controlled Substances Act, the 
use of such drugs by practitioners for legitimate medical 
purposes, especially the purpose of relieving pain and 
discomfort even if it increases the risk of death, the need for 
improved treatment of pain, and the fact that dispensing and 
distributing such drugs affects interstate commerce.

                                title i
Section 101. Activities of Agency for healthcare research and quality
    This section amends the Public Health Services Act by 
authorizing a program responsibility for the Agency for 
Healthcare Research and Quality in the Department of Health and 
Human Services to promote and advance scientific understanding 
of palliative care. The Agency is directed to collect and 
disseminate protocols and evidence-based practices for pain 
management and palliative care with priority for terminally ill 
patients.
    The section is specifically made subject to subsections (e) 
and (f) of section 902 of the Public Health Service Act [42 
U.S.C. 299a(e) and (f)],\42\ added by the Healthcare Research 
and Quality Act of 1999, Public Law 106-129, which prevent the 
mandating of national standards of clinical practice.
---------------------------------------------------------------------------
    \42\ The provisions of subsections (e) and (f) of Section 902 of 
the Public Health Service act state:
---------------------------------------------------------------------------
        (e) Disclaimer.--The Agency shall not mandate national 
      standards of clinical practice or quality health care 
      standards. Recommendations resulting from projects funded 
      and published by the Agency shall include a corresponding 
      disclaimer.
        (f) Rule of Construction.--Nothing in this section shall 
      be construed to imply that the Agency's role is to mandate 
      a national standard or specific approach to quality 
      measurement and reporting. In research and quality 
      improvement activities, the Agency shall consider a wide 
      range of choices, providers, health care delivery systems, 
      and individual preferences.
    This section has a definition of pain management and 
palliative care which is a modified version of the World Health 
Organization's definition of palliative care.
Section 102. Activities of Health Resources and Services Administration
    This section amends the Public Health Services Act by 
authorizing a program for education and training in pain 
management and palliative care in the Health Resources and 
Services Administration of the Department of Health and Human 
Services. This section allows the Secretary, in consultation 
with the Director of the Agency for Healthcare Research and 
Quality to award grants, cooperative agreements and contracts 
to health professions schools, hospices, and other public and 
private entities to develop and implement pain management and 
palliative care education and training programs for health care 
professions.
    This section requires the applicant for the award to 
include three educational informational components in the 
program: (1) the program must have a component that addresses a 
means for diagnosing and alleviating pain and other distressing 
signs and symptoms of patients, especially in terminally ill 
patients, including the use of controlled substances; (2) the 
program must provide information and education on the 
applicable laws on controlled substances, including those 
permitting dispensing or administering them to relieve pain 
even in cases where such efforts may unintentionally increase 
the risk of death, and (3) the information and education must 
provide recent findings and developments in the improvement of 
pain management and palliative care. Health professions 
schools, residency training programs, continuing education, 
graduate programs in the health professions, hospices, and 
other sites as determined by the Secretary will be used as 
program sites.
    This section also requires the Secretary to evaluate the 
programs directly or through grants or contracts and mandates 
that the Secretary include individuals with expertise and 
experience in pain management and palliative care for the 
population of patients whose needs are to be served in each 
peer review group involved in the selection of the grantees.
    Five million dollars annually are authorized to carry out 
these program.
Section 103. Decade of pain control and research
    This section designates the decade beginning January 1, 
2001, as the ``Decade of Pain Control and Research.''
Section 104. Effective date
    This section makes title I effective on the date of 
enactment.
Section 201: Reinforcing existing standard for legitimate use 
        controlled substances
    This section amends the Controlled Substances Act to 
establish that physicians and other licensed health care 
professionals holding DEA registrations are authorized to 
dispense, distribute, or administer controlled substances for 
the legitimate medical purpose of alleviating a patient's pain 
or discomfort in the usual course of professional practice even 
if the use of these drugs may increase the risk of death.\43\ 
Essentially, this provision makes clear that these exists a 
``safe harbor'' for those who dispense controlled substances 
for pain relief and palliative care, even if such treatment 
increases a patient's risk of death. The Department of Justice 
(DOJ) has taken the position that the Pain Relief Act ``would 
eliminate any ambiguity about the legality of using controlled 
substances to alleviate the pain and suffering of the 
terminally ill by reducing any perceived threat of 
administrative and criminal sanctions in this context.'' \44\
---------------------------------------------------------------------------
    \43\ Because the language of H.R. 2260 applies only to dispensing, 
distributing, or administering controlled substances, it can only apply 
to schedule II, III, IV, or V drugs. Schedule I drugs, such as 
marihuana (21 CFR 1308.11(d)(19)), may not be dispensed for any reason 
but may be used only for approved research. 21 U.S.C. 823(f) provides, 
``The Attorney General shall register practitioners (including 
pharmacies, as distinguished from pharmacists) to dispense, or conduct 
research with, controlled substances in schedule II, III, IV, or V, if 
the applicant is authorized to dispense, or conduct research with 
respect to, controlled substances under the laws of the State in which 
he practices. The Attorney General may deny an application for such 
registration if he determines that the issuance of such registration 
would be inconsistent with the public interest. In determining the 
public interest, the following factors shall be considered: * * * (5) 
such other factors as may be relevant to and consistent with the public 
health and safety.'' By contrast, the only provision authorizing 
registration of practitioners with respect to schedule I controlled 
substances is for research: ``Registration applications by 
practitioners wishing to conduct research with controlled substances in 
schedule I shall be referred to the Secretary, who shall determine 
qualifications and competency of each practitioner requesting 
registration.'' Id. Thus, a physician's or pharmacist's registration to 
dispense controlled substances under 21 U.S.C. 823 does not apply to or 
authorize dispensing marihuana since it is a schedule I controlled 
substance.
    \44\ Letter from Robert Raben, Assistant Attorney General, 
Department of Justice, to Hon. Henry Hyde, Oct. 19, 1999.
---------------------------------------------------------------------------
    Without creating any new Federal standard, this section 
also ensures that the new safe harbor is not construed to 
change the proper interpretation of current law that the 
administration, dispensing, or distribution of a controlled 
substance for the purpose of assisting a suicide \45\ is not 
authorized by the Controlled Substances Act. Individuals 
covered by the CSA would not be subject to any new liability 
under the statute--with the exception of those who would 
attempt in the future to rely on the Oregon Act as a defense to 
alleged violations of the CSA.
---------------------------------------------------------------------------
    \45\ ``Webster's Third New International Dictionary Unabridged'' 
(Merriam-Webster, 1986) defines ``suicide'' in relevant part as ``the 
act or an instance of taking one's own life voluntarily and 
intentionally; self-destruction,'' It defines ``euthanasia'' in 
relevant part as ``the act or practice of painlessly putting to death 
persons suffering from incurable conditions or diseases.'' By 
``assisted suicide,'' the bill describes provision of means to another 
person with the intent of enabling or assisting that person to kill 
himself or herself (as by ingesting a lethal overdose). By 
``euthanasia'' the bill more generally describes the use of active 
means by one person to cause the death of another person (as by lethal 
injection) because, as a result of illness, injury, or disability, 
either the person is deemed to be dying or suffering or the person is 
considered to be a ``burden'' on family, community or society. It 
should be emphasized that euthanasia can occur whether or not the 
person who is killed consents to be killed. Cf. H.R. Rep. No. 46 Pt. I, 
105th Cong., 1st sess. 11 (1997) (Assisted Suicide Funding Restriction 
Act of 1997).
---------------------------------------------------------------------------
    This section further provides that the Attorney General in 
implementing the Controlled Substances Act shall not give force 
or effect to any State law permitting assisted suicide or 
euthanasia. This effectively overturns the June 5, 1998, ruling 
of the Attorney General insofar as that ruling concluded ``the 
CSA does not authorize DEA to prosecute, or to revoke the DEA 
registration of, a physician who has assisted in a suicide in 
compliance with Oregon law [or the law of any other state that 
might authorize assisting suicide or euthanasia].'' \46\
---------------------------------------------------------------------------
    \46\ Letter from Attorney General Janet Reno to Hon. Henry Hyde 
(June 5, 1998) p. 3.
---------------------------------------------------------------------------
    This section provides that the provisions of the bill are 
effective only upon enactment with no retroactive effect. This 
means that the Oregon statute will serve as a defense for any 
actions taken in compliance under the Oregon law prior to the 
enactment of H.R. 2260, if enacted.
    This section further provides that nothing in it shall be 
construed to alter the roles of the Federal and State 
governments in regulating the practice of medicine, affirming 
that regardless of whether a practitioner's DEA registration is 
deemed inconsistent with the public interest, the status of the 
practitioner's State professional license and State prescribing 
privileges remain solely within the discretion of State 
authorities.
    This section also provides that nothing in the act is to be 
construed to modify Federal requirements that a controlled 
substance may be dispensed only for a legitimate medical 
purpose nor to authorize the Attorney General to issue national 
standards for pain management and palliative care clinical 
practice, research, or quality, except that the Attorney 
General may take such other actions as may be necessary to 
enforce the act.
    This section provides that in any proceeding to revoke or 
suspend a DEA registration based on alleged intent to cause or 
assist in causing death in which the practitioner claims to 
have been dispensing, distributing, or administering controlled 
substances to alleviate pain or discomfort in the usual course 
of professional practice, the burden rests with the Attorney 
General to prove by clear and convincing evidence that the 
practitioner's intent was to cause or assist in causing the 
death.
Section 202: Education and training programs
    This section directs educational and research training 
programs for law enforcement to include means by which they may 
better accommodate the necessary and legitimate use of 
controlled substances in pain management and palliative care.
    This section clarifies that, because the activities under 
this legislation are consistent with the Drug Enforcement 
Administration's registration activities under current law, 
agency activities pursuant to this bill are to be reimbursed 
under the diversion control fee account.
Section 204. Effective date
    This section establishes that the effective date of the act 
is that of its enactment.

            V. Legislative History and Vote of the Committee
    H.R. 2260, the ``Pain Relief Promotion Act of 1999'' was 
received in the Senate on October 28, 1999, after being passed 
in the House. On November 19, 1999, it was read twice and 
referred to the Committee on the Judiciary. A companion 
measure, S. 1272, had been introduced by Senators Nickles and 
Lieberman on June 23, 1999, and was referred to the Committee 
on Health, Education, Labor, and Pensions, which held hearings 
on October 13, 1999. It currently has 43 sponsors and 
cosponsors.\47\ No further action has been taken on S. 1272.
---------------------------------------------------------------------------
    \47\ S. 1272 is currently sponsored by Senators Nickles, Lieberman, 
Abraham, Allard, Bayh, Bennett, Bond, Breaux, Brownback, Bunning, 
Burns, Cochran, Coverdell, Craig, Crapo, DeWine, Dodd, Domenici, Enzi, 
Fitzgerald, Frist, Grams, Grassley, Gregg, Hagel, Helms, Hutchinson, 
Inhofe, Kyl, Landrieu, Lott, Lugar, Mack, McConnell, Moynihan, 
Murkowski, Santorum, Sessions, Shelby, R. Smith, Thomas, Thurmond, and 
Voinovich.
---------------------------------------------------------------------------
    In the House of Representatives, H.R. 2260 had been 
introduced on June 17, 1999, by Judiciary Committee Chairman 
Henry Hyde and Representative Bart Stupak. The Judiciary 
Committee's Subcommittee on the Constitution approved the bill, 
without amendment, by a voice vote on July 20, 1999. The full 
Committee ordered it reported on September 14, 1999. On October 
13, 1999, the Commerce Committee proceeded to the immediate 
consideration of H.R. 2260 and ordered it reported to the 
House, amended, by a voice vote. The House of Representatives 
voted to pass H.R. 2260 on October 27, 1999, by a vote of 271 
to 156.
    On April 25, 2000, the Judiciary Committee held a hearing 
to examine issues associated with the legislation, including 
its effect on the provision of palliative care to terminally 
ill patients and its interrelationship with State law. The 
Committee heard testimony from two panels of witnesses, 
including Members of Congress and public advocates expert in 
end-of-life care issues.
    In the first panel, Senator Don Nickles of Oklahoma 
testified that the purposes of the bill are two-fold: To 
promote aggressive pain management and to clarify Federal law 
on the use of controlled substances. To advance pain 
management, the bill establishes that the relief of pain and 
discomfort is a ``legitimate medical purpose,'' even if the 
large doses used in treating pain may increase the risk of 
death. It also provides Federal support for training and 
research in the areas of pain management and palliative care. 
To clarify the use of federally controlled drugs, H.R. 2260 
states that their use to deliberately cause death or assist in 
causing death is not a legitimate medical purpose. Therefore, 
for purposes of the Controlled Substances Act of 1970, the 
Attorney General ``shall give no force and effect to State law 
authorizing or permitting assisted suicide or euthanasia.''
    Also on panel one, Senator Ron Wyden of Oregon testified 
against H.R. 2260. He said that he opposes assisted suicide, 
but does not believe that he has the authority to apply his 
personal convictions as a substitute for the judgment made by 
Oregon voters. Senator Wyden strongly expressed the view that 
the Oregon law, twice the subject of favorable statewide 
popular votes, ought not to be thwarted by the application of 
H.R. 2260. Senator Wyden expressed other concerns with the 
bill, including his belief that it would tie the hands of 
doctors who treat patients in severe pain, including the 
terminally ill. He argued that the bill could cause doctors to 
underprescribe medication and leave patients in intractable 
pain.
    As the final witness in the first panel, Senator Gordon 
Smith of Oregon explained that he believes assisted suicide is 
an issue of conscience. He outlined his own experience with the 
law as an Oregon State Senator and a member of the State 
senate's Health Care and bioethics Committee, as well as his 
experiences as a lay bishop visiting the sick, the elderly and 
the dying. He expressed his concern that acceptance of 
assisting suicide will lead to pressures on vulnerable people 
to feel they have a duty to die if they are an economic burden 
to their families and society. He stated that while a majority 
of Oregon voters supports the State's law on assisted suicide, 
he would follow his own conscience and his best judgment on 
sound public policy and vote for the legislation.
    The second panel of witnesses consisted of experts who deal 
with end-of-life issues and physician-assisted suicide. The 
first witness in this panel, Dr. Eric Chevlen, is the director 
of palliative care at St. Elizabeth hospital in Ohio and 
medical director of two hospices. Dr. Chevlen expressed his 
support of H.R. 2260. He believes it will improve the ability 
of doctors to relieve suffering, which is a legitimate medical 
purpose, while he believes that assisted suicide is not. Dr. 
Chevlen maintained that H.R. 2260 restores the uniform 
application of the Controlled Substances Act to all 50 states 
and does not usurp the rights of the States.
    Dr. Arthur Caplan, a nationally recognized expert in the 
field of bioethics; Dr. Caplan directs the Center for Bioethics 
at the University of Pennsylvania; he is Trustee Professor at 
the University of Pennsylvania. Dr. Caplan voiced opposition to 
the legislation because of his concern that it could hinder 
doctors in aggressively treating pain. Dr. Chaplan believes 
that decisions about pain control and treatment of the dying 
should be kept, as much as possible, in the hands of health 
care professionals, not legal authorities.
    The third witness was Rabbi J. David Bleich, professor of 
law at the Benjamin Cardozo School of Law, professor of Talmud 
and director of the graduate program in jurisprudence and 
family law at the Rabbi Isaac Elchanan Theological Seminary, as 
well as Herbert and Florence Tenzer Professor of Jewish Law and 
Ethics at Yeshiva University. He spoke at the request of the 
Union of Orthodox Jewish Congregations of America. Rabbi Bleich 
testified that the effect of H.R. 2260 is solely to remove the 
Federal imprimatur for assisted suicide, a practice he 
described as morally repugnant to the majority of our populace 
and offensive to the traditions of our country. He also stated 
his belief that H.R. 2260 encourages palliative care above and 
beyond current law, while paying full deference to the 
physician's judgment in managing pain.
    The fourth witness, Dr. Kathleen Foley, is a Professor of 
neurology, neuroscience and clinical pharmacology at the 
Cornell University Medical College, as well as the attending 
neurologist in the Pain and Palliative Care Service at Memorial 
Sloan-Kettering Cancer Center. She opposed H.R. 2260 because 
she believes it expands the authority of the Controlled 
Substances Act, does not provide sufficient funding to have any 
real impact on pain management, and may lead doctors to 
undertreat patients with pain because of concern for regulatory 
oversight.
    The fifth and final witness, Dr. Walter Hunter, associate 
national medical director of VistaCare Hospice, testified in 
support of the legislation, stating that this bill will not 
interfere with his ability, as a hospice physician, to deliver 
palliative care. In fact, argued Dr. Hunter, the Chairman's 
substitute for H.R. 2260 recognizes legitimate palliative care 
and protects physicians who practice it, while prohibiting the 
deliberate killing of a patient. He said the legislation would 
make an important first step in committing the Federal 
Government to optimum palliative care for all patients who need 
it.
    The bill was considered by the full committee in an 
executive session on April 27, 2000. Chairman Hatch offered a 
substitute amendment which was agreed to by a recorded roll 
call vote 10 yeas to 8 nays, as follows:
        YEAS                          NAYS
Thurmond                            Leahy
Grassley                            Kennedy
Kyl                                 Kohl
DeWine                              Feinstein
Ashcroft                            Feingold
Abraham                             Torricelli
Sessions                            Schumer
Smith                               Specter
Biden
Hatch

           VI. Explanation of Legislation and Committee Views

        a. promoting better pain management and palliative care
    In written testimony submitted to the Committee, the Pain 
Care Coalition (representing the American Academy of Pain 
Medicine, the American Headache Society, and the American Pain 
Society) summarized current problems in assuring that pain is 
adequately treated:

          Pain is a major public health problem in this 
        country. It effects people of all ages and at every 
        stage of life. It is generally recognized that 
        throughout the nation, and regardless of age, setting, 
        or health status, severe pain is often under-treated or 
        mistreated, if not overlooked entirely. Nine out of ten 
        Americans experience some sort of pain on a regular 
        basis--monthly or more often. Fifty million Americans 
        are partially or totally disabled by pain, and 45 
        percent of all Americans seek care for persistent pain 
        at some point in their lives. Pain imposes a tremendous 
        burden on these individuals and their families.

           *       *       *       *       *       *       *

          * * * Recent studies of end-of-life care in 
        hospitals, of the elderly in nursing homes, and of the 
        general public in Michigan all reach the same 
        conclusion: many, many people endure unnecessary 
        suffering due to inadequate pain care.

    As one palliative care expert has written:

          In a society at the brink of accepting physician-
        assisted suicide, medical schools still do not 
        adequately teach pain management and care for the 
        dying. * * * [T]he University of Wisconsin Medical 
        School published a study of U.S. cancer centers which 
        documented that 42 percent of cancer patients in pain 
        were not prescribed appropriate pain medication. In 
        another study, 86 percent of the surveyed American 
        oncologists believe that most patients with cancer pain 
        are undermedicated. Even today, many doctors--and too 
        many dying patients--needlessly fear addiction. 
        Similarly, patients may fear side effects of 
        medications more than pain. Moreover, it is documented 
        that patients tend to underreport pain to avoid 
        becoming ``a complainer'' or to prevent distracting the 
        doctor from ``more important matters.'' The net 
        consequence of these factors is needless suffering, but 
        each one of these obstacles to assuring comfort among 
        the nation's dying is surmountable.
          * * * Comfort at the end of life is medically 
        possible. Once comfort is assured, the experience of 
        dying can become a rich, meaningful time of life for 
        the dying person and his or her family, a time marked 
        by a sense of rightness and peace. This is true even 
        for those who once considered suicide because of 
        ``intractable'' pain or other uncontrolled symptoms. We 
        must insist, immediately, that medical schools and 
        training programs--including NCI's designated cancer 
        centers--teach care for the dying. This single change 
        could improve current and future care immediately.\48\

    \48\ Ira Byock, M.D. (Hospice Medical Director of Partners in Home 
Care, Missoula, Montana), ``Caring for the Dying: We Must Confront the 
Issues,'' ``Choices,'' vol. 4, no. 2 (summer 1995): p. 5.

    The problem is not that modern medicine is incapable of 
controlling pain, but that too many clinicians are inadequately 
trained in the most up-to-date techniques. In a survey of 1,177 
physicians who had treated a total of more than 70,000 patients 
with cancer in the previous six months, 76 percent cited lack 
of knowledge as a barrier to their ability to control pain.\49\
---------------------------------------------------------------------------
    \49\ U. von Roenn et al., ``Physician attitudes and practice in 
cancer pain management,'' ``Ann. Intern. Med.,'' vol. 119 (1993): pp. 
121-26.
---------------------------------------------------------------------------
    In title I, the bill amends the Public Health Service Act 
to authorize programs within the Department of Health and Human 
Services to develop and advance the scientific understanding of 
palliative care and for education and training in palliative 
care. These programs take two principal forms.
    First, subject to provisions ensuring that it does not 
mandate national clinical standards, the Agency for Healthcare 
Research and Quality is to collect and disseminate protocols 
and evidence-based practices regarding pain management and 
palliative care. The objective of this program is not for the 
Agency itself to draft or develop such protocols and practice 
guidelines, but rather to foster widespread knowledge of those 
already developed or to be developed by other sources, such as 
medical specialty organizations. Based on a survey of senior 
medical directors from Blue Cross Blue Shield insurance plans 
across the country, a study by Diane Hoffman recently concluded 
that ``insurers have a hard time identifying good pain-relief 
providers. Before we can make improvements in this area, we 
need more evidence-based treatment guidelines, preferably from 
randomized clinical trials, better use of the guidelines we do 
have, and the development of more meaningful standards.'' \50\ 
Hoffman concluded that widespread dissemination and acceptance 
of such guidelines is needed to obtain adequate and appropriate 
coverage of pain relief treatments by private insurers. 
``[U]ntil then, it is rough on insurers to take the lead in 
providing coverage.''
---------------------------------------------------------------------------
    \50\ Charles Marwick, ``New Advocates of Adequate Treatment Say 
Have No Fear of Pain or of Prosecution.'' ``Journal of the American 
Medical Association,'' vol. 281, no. 5 (Feb. 3, 1999): p. 406.
---------------------------------------------------------------------------
    Second, title I provides for the awarding of grants, 
cooperative agreements, and contracts by the HHS Health 
Resources and Services Administration to health professions 
schools, hospices, and other public and private entities to 
develop and implement palliative care education and training 
programs for health care professionals in palliative care. The 
decision to award these programs will be made by peer review 
groups, each of which must include one or more individuals with 
expertise and experience in palliative care for the population 
to be served by the program.
    As Dr. Hunter testified,

        As a physician, I am ashamed to admit that the vast 
        majority of our nation's medical schools and residency 
        programs have simply failed to make medical ethics, 
        pain and symptom management priorities in their 
        curricula. This information, however, is absolutely 
        essential for physicians to properly provide excellent 
        care for patients. * * * This legislation provides for 
        much needed education in the professional community. We 
        at VistaCare applaud this bill for its commitment of 
        monies for the advancement of understanding of 
        palliative care and for the education of health care 
        professionals in the principles and practice of 
        palliative care. This commitment of time and money to 
        these educational efforts will send a very clear 
        message that the United States Congress has taken up 
        the cause of providing competent, compassionate, and 
        comprehensive palliative care for our citizens who face 
        life-threatening illness.

                  b. assisting suicide and euthanasia
    By a margin of 64 percent to 31 percent, Americans say that 
Federal law should not allow the use of federally controlled 
drugs for the purpose of assisted suicide and euthanasia.\51\ 
The dangers posed by federal facilitation of legalized assisted 
suicide were dramatically stated by Oregon Senator Gordon Smith 
in his moving testimony to the committee: \52\
---------------------------------------------------------------------------
    \51\ Wirthlin Worldwide national telephone poll June 10, 1999. 3.1 
percent margin of error at the 95 percent confidence level. The 
question wording was as follows:

      As you may or may not know, the use of narcotics and other 
      dangerous drugs is generally prohibited by federal law 
      except when a doctor prescribes them for a ``legitimate 
      medical purpose.'' Should the federal law allow use of 
      these federally controlled drugs for the purpose of 
      assisted suicide and euthanasia?
        31 percent Yes.
        64 percent No.
        5 percent Don't Know/Refused.

    \52\ It is noteworthy that neither Senator Wyden in his testimony 
before the Committee nor any member of the Committee has attempted to 
argue for or defend the legalization of assisting suicide as a matter 
of public policy, nor (apart from raising federalism issues dealt with 
below) to argue that the Federal Government should facilitate assisting 
suicide or euthanasia as a positive public policy.

        To [allow federally controlled substances to be used in 
        physician assisted suicide] * * * would have 
        consequences over time unimaginable now-consequences 
        outlined by Derek Humphry, an Oregonian and one of the 
        most vocal and visible advocates of assisted suicide, 
        in his 1998 book Freedom to Die.
          The final chapter of Mr. Humphrey's book is entitled 
        ``The Unspoken Argument.'' Why it is unspoken? Because 
        it is so awful. Let me quote from page 313 of Mr. 
        Humphry's book, where he reveals the true reason why he 
        believes assisted suicide's time has come:
          ``* * * one must look at the realities of the 
        increasing cost of health care in an aging society, 
        because in the final analysis, economics, not the quest 
        for broadened individual liberties or increased 
        autonomy, will drive assisted suicide to the plateau of 
        acceptable practice.''
          Then he asks this chilling question:
          ``Is there, in fact, a duty to die--a responsibility 
        within the family unit--that should remain voluntary 
        but expected nevertheless?''
          Mr. Humphry answers yes, but I believe we must answer 
        his vision of Orwellian ugliness with a resounding no. 
        I will not be party to building such a society or 
        justifying such a culture of death. In such a culture, 
        we should never wonder why children do not value life 
        when adults write laws that do not value it either.
          The right to kill oneself is a private one. It is a 
        right that can be exercised in nearly anyone's medicine 
        cabinet. But it is dangerous to make doctors and the 
        state complicit in killing, even though consensual. In 
        an age of medical rationing and for profit HMO's, there 
        is a terrible ethical and financial conflict of 
        interest. And the federal government should see it and 
        stay away from it. Where Mr. Humphry sees a duty to 
        die, I see a duty to resolve the shortcomings of our 
        medical budgets rationally and honestly without 
        sacrificing the most vulnerable in our society-the 
        elderly and the disabled.

    Among the most comprehensive and careful modern 
examinations of this issue was one undertaken in 1994 by the 
New York State Task Force on Life and the Law, appointed by New 
York's Governor Mario Cuomo.\53\ Its 23 members, drawn from the 
fields of medicine, law, and ethics, differed on whether 
assisting suicide could in theory be ethically appropriate, but 
the task force was unanimous in concluding ``that legalizing it 
would pose serious and insurmountable risks of mistake and 
abuse that would greatly outweigh any benefit that might be 
achieved. These risks center on the likelihood that many 
individuals would request suicide assistance because of 
improper medical care, unrecognized lack of decisionmaking 
capacity, or coercion, not because of a voluntary, settled 
commitment to die.'' \54\
---------------------------------------------------------------------------
    \53\ The New York State Task Force on Life and the Law, ``When 
Death is Sought: Assisted Suicide and Euthanasia in the Medical 
Context'' New York: The New York State Task Force on Life and the Law, 
1994).
    \54\ The New York State Task Force on Life and the Law, ``When 
Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 
Supplement to Report April 1997'' (New York: The New York State Task 
Force on Life and the Law, 1997), p. 4. http://www.health.state.ny.us/
nysdoh/taskfce/sought.pdf
---------------------------------------------------------------------------
    In 1997, the task force issued a supplement to its report 
that briefly summarized in 10 points ``the primary risks 
associated with legalization'' \55\:
---------------------------------------------------------------------------
    \55\ Id. at 4-5.
---------------------------------------------------------------------------
     Undiagnosed or untreated mental illness. Many 
individuals who contemplate suicide--including those who are 
terminally ill--suffer from treatable mental disorders, most 
commonly clinical depression. Yet, physicians routinely fail to 
diagnose and treat these disorders, particularly among patients 
at the end of life. As such, if assisted suicide is legalized, 
many requests based on mental illness are likely to be granted, 
even though they do not reflect a competent, settled decision 
to die.
     Improperly managed physical symptoms. Requests for 
assisted suicide are also highly correlated with unrelieved 
pain and other discomfort associated with physical illness. 
Despite significant advances in palliative care, the pain and 
discomfort that accompanies many physical illnesses are often 
grossly undertreated in current clinical practice. If assisted 
suicide is legalized, physicians are likely to grant requests 
for assisted suicide from patients in pain before all available 
options to relieve the patient's pain have thoroughly been 
explored.
     Insufficient attention to the suffering and fears 
of dying patients. For some individuals with terminal or 
incurable diseases, suicide may appear to be the only solution 
to profound existential suffering, feelings of abandonment, or 
fears about the process of dying. While the provision of 
psychological, spiritual, and social supports--particularly, 
comprehensive hospice services--can often address these 
concerns, many individuals do not receive these interventions. 
If physician-assisted suicide is legalized, many individuals 
are likely to seek the option because their suffering and fears 
have not adequately been addressed.
     Vulnerability of socially marginalized groups. No 
matter how carefully any guidelines for physician-assisted 
suicide are framed, the practice will be implemented through 
the prism of social inequality and bias that characterizes the 
delivery of services in all segments of our society, including 
health care. The practices will pose the greatest risks to 
those who are poor, elderly, isolated, members of a minority 
group, or who lack access to good medical care.
     Devaluation of the lives of the disabled. A 
physician's reaction to a patient's request for suicide 
assistance is likely to depend heavily on the physician's 
perception of the patient's quality of life. Physicians, like 
the rest of society, may often devalue the quality of life 
individuals with disabilities, and may therefore be 
particularly inclined to grant requests for suicide assistance 
from disabled patients.
     Sense of obligation. The legalization of assisted 
suicide would itself send a message that suicide is a socially 
acceptable response to terminal or incurable disease. Some 
patients are likely to feel pressured to take this option, 
particularly those who feel obligated to relieve their loved 
ones of the burden of care. Those patients who do not want to 
commit suicide may feel obligated to justify their decision to 
continue living.
     Patient deference to physician recommendations. 
Physicians typically make recommendations about treatment 
options, and patients generally do what physicians recommend. 
Once a physician states or implies that assisted suicide would 
be ``medically appropriate,'' some patients will feel that they 
have few, if any, alternatives but to accept the 
recommendation.
     Increasing financial incentives to limit care. 
Physician-assisted suicide is far less expensive than 
palliative and supportive care at the end of life. As medical 
care shifts to a system of capitation, financial incentives to 
limit treatment may influence the way that the option of 
physician-assisted suicide is presented to patients, as well as 
the range of alternatives patients are able to obtain.
     Arbitrariness of proposed limits. Once society 
authorizes physician-assisted suicide for competent, terminally 
ill patients experiencing unbelievable suffering, it will be 
difficult, if not impossible, to contain the option to such a 
limited group. Individuals who are not competent, who are not 
terminally ill, or who cannot self-administer lethal drugs will 
also seek the option of physician-assisted death, and no 
principled basis will exist to deny them this right.
     Impossibility of developing effective regulation. 
The clinical safeguards that have been proposed to prevent 
abuse and errors are unlikely to be realized in everyday 
medical practice. Moreover, the private nature of these 
decisions would undermine efforts to monitor physicians' 
behavior to prevent mistake and abuse.
    The data so far publicly available about the operation of 
Oregon's assisted suicide law does not inspire confidence that 
the dangers detailed by the New York Task Force on Life and the 
Law are being avoided in that State.
    On February 17, 1999, the Oregon Health Division released a 
report detailing the first full year under Oregon's physician-
assisted suicide law. A report on the second year was released 
on February 23, 2000.\56\ Forty-three physician-assisted 
suicides were reported for the 2 years, all of them involving 
the use of federally controlled substances. According to family 
members surveyed for the second report, in 47 percent of the 
cases patients were influenced to undergo assisted suicide by 
``concern about being a burden on others.'' \57\
---------------------------------------------------------------------------
    \56\ Amy Sullivan et al., ``Legalized Physician-Assisted Suicide in 
Oregon--The Second Year,'' ``New England Journal of Medicine,'' vol. 
342, no. 8 (Feb. 24, 2000): p. 598. http://www.ohd.hr.state.or.us/chs/
pas/ar-index.htm
    \57\ Id. at 601.
---------------------------------------------------------------------------
    The report also revealed that a predominant motivation was 
fear of future disability. The two reasons most frequently 
cited were ``concern about loss of control of bodily 
functions'' (68 percent) and ``loss of autonomy'' (63 percent) 
\58\ This is consistent with the first year's report, which 
noted that those whose suicides were assisted at the time of 
death were less disabled than a control group of patients who 
did not commit suicide. Disability rights activists frequently 
point out that nondisabled people can have a distorted and 
negative view of the quality of life with a disability, and 
that newly disabled people go through an adjustment period 
before realizing this.\59\ Tragically, those whose fear of 
disability led to their deaths in Oregon will never have that 
opportunity.\60\
---------------------------------------------------------------------------
    \58\ Id.
    \59\ In one study, the duration of disability was positively 
related with acceptance of disability in persons with spinal cord 
injury-related paralysis. Severity of disability was of no importance 
in accepting life with a disability. F. Woodrich J.B. Patterson, 
``Variables Related to Acceptance of Disability in Persons With Spinal 
Cord Injuries,'' ``Journal of Rehabilitation,'' vol. 49, no. 3 (June, 
July, Aug. 1983) pp. 26-30. 86 percent of spinal cord injured high-
level quadriplegics rated their quality of life as average or better 
than average, while only 17 percent of their emergency room doctors, 
nurses, and technicians thought that if they acquired quadriplegia they 
would have a quality of life average or better than average. K.A. 
Gerhart et al. ``Quality of Life Following Spinal Cord Injury: 
Knowledge and Attitudes of Emergency Care Providers,'' ``Annals of 
Emergency Medicine,'' vol. 23, no. 4 (Apr. 1994): pp. 807-812.
    \60\ Disability rights groups that have taken a position opposing 
the legalization of assisting suicide include American Disabled for 
Attendant Programs, Disability Rights Education and Defense Fund, 
Justice for All, National Council on Disability, National Council on 
Independent Living, National Spinal Cord Injury Association, Not Dead 
Yet, TASH, World Association of Persons with Disabilities, and World 
Institute on Disability. In the words of Not Dead Yet, ``[A]ssisted 
suicide cannot be legalized so long as people with disabilities face 
prejudice, discrimination, and pressure to `get out of the way.' '' Not 
Dead Yet, ``The Pain Relief Promotion Act of 1999,'' Nov. 12, 1999.
---------------------------------------------------------------------------
    The reports are lacking in several respects. They do not 
provide independent objectively verified information about the 
extent to which physicians have complied with the law, but 
instead, rely heavily on physician self-reporting. This 
deficiency in objective reporting is exacerbated by the fact 
that the law itself is governed by a ``good faith'' standard 
that protects physicians from civil, professional, and criminal 
liability so long as they believe ``in good faith'' that they 
have complied with the guidelines.\61\
---------------------------------------------------------------------------
    \61\ Or. Rev. Stat. Sec. 127.885 (1997). An Oregon physician 
generally acknowledged to have performed active euthanasia without his 
patient's consent (still a homicide under Oregon law) was declared 
``unprosecutable'' by State officials because of the climate created by 
the Oregon law permitting assisted suicide. See Doctor won't be 
prosecuted, The Bulletin (Bend, OR), Dec. 11, 1997, at 7.
---------------------------------------------------------------------------
    The reports make no serious effort to uncover the extent of 
covert assisted suicide,\62\ and the law's confidentiality 
requirements \63\ and its provision barring notification of 
family members without a patient's express consent \64\ make it 
very unlikely that abuses will be discovered.\65\ 
Significantly, the reports fail to provide thorough information 
on the mental state of the patients. Under the Oregon law, 
physicians are to assist suicides only in cases where a patient 
is expected to die in 6 months,\66\ yet physicians generally 
concede, and the professional literature confirms, that such 
predictions of life expectancy are unreliable.\67\
---------------------------------------------------------------------------
    \62\ Upon releasing the first report, the Oregon Health Division 
distributed a memorandum to State employees stating that any employee 
who reveals that a physician-assisted death has occurred in his or her 
county ``will immediately be terminated.'' Death with Dignity 
Memorandum from Sharon Rice, Manager Registration Unit, Center for 
Health Statistics of the Oregon Health Division, to County Vital 
Records Registrars and Deputies (Dec. 12, 1997), reprinted in 
``Confidentiality of Death Certificates,'' 14, ``Issues in Law & Med.'' 
333, 334 (1998).
    \63\ Or. Rev. Stat. Sec. 127.865 (1997).
    \64\ Or. Rev. Stat. Sec. 127.835 (1997).
    \65\ Another factor worthy of note is that, during the first year 
of the assisted suicide law's operation, the Oregon Health Plan placed 
barriers to the funding of antidepressants (Jeanette Hamby, ``The Enemy 
Within: State Bureaucratic Rules Threaten the Spirit of Oregon Health 
Plan's Founding Principles,'' ``Oregonian,'' Jan. 21, 1998), restricted 
the availability of mental health services (Joe Rojas-Burke, ``Survey 
Gives Oregon Health Plan High Marks,'' ``Oregonian,'' Feb. 3, 1999, at 
B15), and restricted pain medication for poor and disabled patients 
(Diane Gianelli, ``Suicide Opponents Rip Oregon Medicaid Pain Control 
Policy,'' ``American Medical News,'' Sept. 28, 1998). By contrast, 
Oregon fully funds assisted suicide. See Pain Relief Promotion Act of 
1999, hearing on H.R. 2260 before the Subcommittee on the Constitution 
of the House Committee on the Judiciary, 106th Cong. (June 24, 1999) 
(statement of N. Gregory Hamilton, M.D., president of Physicians for 
Compassionate Care)  
[hereinafter cited as Hamilton testimony]. Some private Health 
Maintenance Organizations have placed caps on in-home palliative care 
while fully funding assisted suicide. Id.
    \66\ Or. Rev. Stat. Sec. Sec. 127.800, 127.805 (1997).
    \67\ Joanne Lynn et al., ``Defining the `Terminally Ill'; Insights 
from SUPPORT,'' 35, ``Duquesne Law Review,'' 311 (1996); Eric Chevlen, 
``The Limits of Prognostication,'' 35, ``Duquesne Law Review,'' 337 
(1996); Robert A. Pearlman, ``Inaccurate Predictions of Life 
expectancy,'' ``Archives of Internal Medicine,'' vol. 148, no. 12 (Dec. 
1988): pp. 2537-38.
---------------------------------------------------------------------------
    In addition, physicians are to assist suicides only in 
cases where a patient is not suffering from ``a psychiatric or 
psychological disorder, or depression causing impaired 
judgment.'' \68\ Most physicians are ill-equipped to detect 
depression in their patients at all, much less to determine 
what level of clinical depression is sufficient to cause 
``impaired judgment.'' \69\
---------------------------------------------------------------------------
    \68\ Or. Rev. Stat. 127.825 (1997).
    \69\ Lethal Drug Abuse Prevention Act: Hearing on H.R. 4006 before 
the Subcommittee on the Constitution of the House Committee on the 
Judiciary, 105th Cong., 2d sess. (July 14, 1998) (oral statement of Dr. 
Herbert Hendin). See also, The New York State Task Force on Life and 
the Law, When Death is Sought: Assisted Suicide and Euthanasia in the 
Medical Context'' (New York: The New York State Task Force on Life and 
the Law, 1994): p. 1268. http://www.health.state.ny.us/nysdoh/provider/
death.htm. The chief author of the Oregon law has written somewhat 
chillingly that ``depression in itself does not rule out the 
physician's assistance'' under the act. See Cheryl K. Smith, 
``Safeguards for Physician-assisted Suicide: The Oregon Death with 
Dignity Act,'' in ``Death, Dying and the Law,'' ed. Sheila McLean 
(Brookfield, Vt.: Dartmouth, 1996): p. 75.
---------------------------------------------------------------------------
    Certain omissions call into question the comprehensiveness 
of the Oregon reports. For example, they fail to mention that 
it appears that the first publicly reported case of assisted 
suicide in the State involved an out-of-State woman who was 
found to be depressed by one doctor she consulted. Within 3 
weeks of contacting Compassion in Dying and moving to Oregon, 
she was dead by lethal overdose. Significantly, while two 
doctors had rendered opinions against the assisted suicide, 
including a physician who believed the woman was suffering from 
clinical depression, these opinions were not included in the 
report.\70\ Two opposing conclusions, at opposite extremes, 
have been articulated about the Pain Relief Promotion Act: that 
if enacted it will override State law so as to prohibit all 
instances of assisting suicide, and that it will have no effect 
on their number. The Committee believes that neither extreme is 
correct.
---------------------------------------------------------------------------
    \70\ See Herbert Hendin et al., ``Physician-Assisted Suicide: 
Reflections on Oregon's First Case,'' 14 issues in ``Law & Med.'' 243 
(1998).
---------------------------------------------------------------------------
    The Pain Relief Promotion Act does not nullify or pre-empt 
Oregon's statute legalizing certain cases of assisting suicide. 
It simply prevents the Federal Government's facilitation of 
assisting suicide by refusing to authorize the use of federally 
controlled substances to assist suicide, regardless of whether 
such assistance is legal or illegal as a matter of State law. 
The same would be true with respect to any statute that a state 
might in the future enact permitting assisting suicide or 
euthanasia as a matter of State law. Killing of patients by 
means other than the use of federally controlled substances is 
not prohibited by the Pain Relief Promotion Act.
    At the same time, the Committee believes that just as 
Federal facilitation of assisting suicide is likely to increase 
its incidence, refusal of the Federal Government to facilitate 
it is likely to decrease that incidence. In particular, refusal 
to authorize the use of federally controlled drugs to put 
patients to death is likely to help prevent the 
institutionalization of induced death as a standard part of 
medical practice. A study published in the April 23, 1998, 
``New England Journal of Medicine,'' showed that while 36 
percent of doctors would be willing to write lethal 
prescriptions if assisting suicide were legal, only 11 percent 
are willing to do so while it is against the law.\71\ 
Currently, while 18.3 percent of doctors have been asked to 
assist suicide with a lethal prescription, only 3.3 percent 
have done so. This suggests that legal limits are effectively 
deterring over two-thirds of doctors who otherwise might assist 
suicide.
---------------------------------------------------------------------------
    \71\ Diane Meier et al., ``A National Survey of Physician-Assisted 
Suicide and Euthanasia in the United States,'' ``New England Journal of 
Medicine,'' vol. 338, no. 17 (Apr. 23, 1998): p. 1193.
---------------------------------------------------------------------------

                             c. federalism
    Both Senator Wyden in his testimony before the Committee 
and members of the Committee who oppose the bill have argued 
that it usurps the power of States to enact legislation, a 
power which is reserved under the 10th amendment to the 
Constitution.
    The Controlled Substances Act (CSA) was enacted almost 30 
years ago as a measure to ensure strict, national regulation of 
drugs which have a serious potential for abuse. Given the 
devastating national problem of illicit drug use, the 
Controlled Substances Act itself found that, ``The illegal 
importation, manufacture, distribution, and possession for 
improper use of controlled substances have a substantial and 
detrimental effect on the health and general welfare of the 
American people.'' It is almost inconceivable that it could 
seriously be contended that the Controlled Substances Act is 
beyond the constitutional authority of Congress,\72\ nor does 
the Committee believe that many Members of Congress would favor 
its repeal so as to eliminate any national regulation of 
narcotics and other dangerous drugs. Given the national and 
indeed the international nature of the drug problem, it is 
difficult to see how a 50-State, crazy quilt approach to the 
regulation of controlled substances could adequately protect 
the health of the American public.
---------------------------------------------------------------------------
    \72\ Congress has made the following findings with respect to the 
effect of traffic in controlled substances on interstate commerce in 21 
U.S.C. Sec. 801 (3)-(6):

        (3) A major portion of the traffic in controlled 
      substances flows through interstate and foreign commerce. 
      Incidents of the traffic which are not an integral part of 
      the interstate or foreign flow, such as manufacture, local 
      distribution, and possession, nonetheless have substantial 
      and direct effect upon interstate commerce because--
        (A) after manufacture, many controlled substances are 
      transported in interstate commerce immediately before their 
      distribution, and
        (B) controlled substances distributed locally usually 
      have been transported in interstate commerce immediately 
      before their distribution, and
        (C) controlled substances possessed commonly flow through 
      interstate commerce immediately prior to such possession.
        (4) Local distribution and possession of controlled 
      substances contribute to swelling the interstate traffic in 
      such substances.
        (5) Controlled substances manufactured and distributed 
      intrastate cannot be differentiated from controlled 
      substances manufactured and distributed interstate. Thus, 
      it is not feasible to distinguish, in terms of controls, 
      between controlled substances manufactured and distributed 
      interstate and controlled substances manufactured and 
      distributed intrastate.
        (6) Federal control of the intrastate incidents of the 
      traffic in controlled substances is essential to the 
      effective control of the interstate incidents of such 
      traffic.

Section 2(6) of the Pain Relief Promotion Act finds that ``for the 
reasons set forth in section 101 of the Controlled Substances Act (21 
U.S.C. 801), the dispensing and distribution of controlled substances 
for any purpose affect interstate commerce.''
---------------------------------------------------------------------------
    Every Federal circuit court of appeal that has considered the 
issue--and almost all have--has upheld the constitutionality of the 
Controlled Substances Act as a valid exercise of Congressional power to 
regulate interstate commerce. United States v. Edwards, 98 F.3rd 1364, 
1369 (D.C. Cir. 1996); United States v. Lerebours, 87 F.3rd 582, 584-85 
(1st Cir. 1996); Proyect v. United States, 101 F.3rd 11, 13-14 (2d Cir. 
1996); United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995); 
United States v. Clark, 67 F.3rd 1154 (5th Cir. 1995), cert. denied, 
116 S. Ct. 1432 (1996); United States v. Tucker, 90 F.3rd 1135, 1139-41 
(6th Cir. 1996); United States v. Rogers, 89 F.3rd 1326, 1338 (7th Cir. 
1996); United States v. Bell, 90 F.3rd 318, 321 (8th Cir. 1996); United 
States v. Bramble, 103 F.3rd 1475, 1479-80 (9th Cir. 1996); United 
States v. Wacker, 72 F.3rd 1453, 1475 (10th Cir. 1995), cert. denied, 
117 S. Ct. 136 (1996); United States v. Jackson, 111 F.3rd 101, 102 
(11th Cir. 1997).
---------------------------------------------------------------------------
    As Senator Nickles testified before the Committee:

        Under present Federal law, the Controlled Substances 
        Act, these federally-controlled substances can only be 
        prescribed for a ``legitimate medical purpose'' in the 
        usual course of professional practice, to promote 
        public health and safety. A lethal overdose, otherwise 
        known as assisted suicide, has never been considered a 
        legitimate medical purpose and certainly does not 
        promote public health and safety.
          * * * When Oregon passed a state law to allow 
        physician assisted suicide, it had that right. But it 
        did not have the right to change or amend an existing 
        federal law. If Oregon were to legalize the use of 
        heroin for any purposes that wouldn't change the 
        federal law prohibiting its use. The Controlled 
        Substances Act is a federal law governing all 50 
        states, not 49.

    Given the structure of the Controlled Substances Act and 
its implementing regulations, the Federal Government must 
either treat assisting suicide and euthanasia as forms of 
legitimate medical practice, or as an unauthorized misuse of 
controlled substances. It would hardly be consistent to concede 
that Congress has the constitutional authority to enact a 
Controlled Substances Act to prevent potent drugs from being 
used for other than legitimate medical purposes, yet to 
maintain that Congress may not constitutionally set boundaries 
for what may count as a legitimate medical purpose.\73\
---------------------------------------------------------------------------
    \73\ That setting such boundaries is integral to the Controlled 
Substances Act is implicit in the provisions of 21 U.S.C. 801a. In that 
section Congress finds and declares that the Comprehensive Drug Abuse 
Prevention and Control Act of 1970 (which amended the Controlled 
Substances Act) is the means employed by the United States to fulfill 
its treaty obligations under the Convention on Psychotropic Substances 
signed at Vienna, Austria, on February 21, 1971. In subsection (3), 
Congress finds that this ensures that nothing in the Convention ``will 
interfere with ethical medical practice in this country as determined 
by the Secretary of Health and Human Services on the basis of a 
consensus of the views of the American medical and scientific 
community.'' It is noteworthy that the measure of what constitutes 
ethical medical practice is not left by this subsection solely to the 
varying interpretations of the several States, but rather is deemed to 
arise from the consensus of the American medical and scientific 
community. It was an analysis of precisely that consensus that lead 
Drug Enforcement Administrator Constantine to make the original 
determination that assisting suicide and euthanasia are not legitimate 
medical purposes in the course of professional practice for the 
purposes of the Controlled Substances Act, a determination the 
Committee considers to be documentably accurate.
---------------------------------------------------------------------------
    The Committee is convinced that it is both constitutional 
and good public policy for Congress to ensure that federally 
controlled substances are not used to effectuate the ultimate 
harm of deliberately inflicting death.\74\
---------------------------------------------------------------------------
    \74\ In Washington v. Glucksberg, 521 U.S. 702, 735 (1997), the 
Court wrote, ``Throughout the nation, Americans are engaged in an 
earnest and profound debate about the morality, legality and 
practicality of physician-assisted suicide. Our holding permits this 
debate to continue, as it should in a democratic society.'' This 
passage is sometimes cited for the position that States may 
constitutionally choose, if they wish, to legalize physician-assisted 
suicide.
    Clearly, however, this was not the Court's own view. Neither in the 
quoted passage nor elsewhere in its opinion did the Court assign this 
issue to state as opposed to Federal jurisdiction. In reviewing the 
Nation's longstanding tradition against assisting suicide, it cited 
Federal enactments such as the Assisted Suicide Funding Restriction Act 
of 1997 alongside State laws. Illustrating the Government's interest in 
protecting terminally ill patients, the Court favorably cited an 
earlier decision upholding the Federal Food and Drug Administration's 
authority ``to protect the terminally ill, no less than other 
patients,'' from life-endangering drugs. Id. at 729, quoting United 
States v. Rutherford, 442 U.S. 544, 558 (1979).
    Indeed, the Court explicitly left open the question of whether 
State laws like Oregon's authorizing assisting suicide in certain 
circumstances might themselves be unconstitutional. Oregon's law 
selectively permitting assisted suicide for certain patients had been 
found by one Federal district court to violate equal protection; that 
ruling was not before the Supreme Court. See Lee v. Oregon, 891 F.Supp. 
1429 (D. Or. 1995), vacated on other grounds, 107 F.3d 1382 (9th Cir. 
1997), cert. denied, 118 S. Ct. 328 (1997). As Chief Justice Rehnquist 
said in his majority opinion in Glucksberg: ``Lee, of course, is not 
before us * * * and we offer no opinion as to the validity of the Lee 
court's reasoning.'' Glucksberg, 521 U.S. at 709-710 n. 7. To this day 
no appellate court in the country has ruled on the constitutionality of 
a law like Oregon's.
---------------------------------------------------------------------------

 d. intent as a basis for distinguishing between the use of controlled 
           substances to alleviate pain and to assist suicide
    Following the substantial changes to address medical 
concerns incorporated in the Chairman's substitute adopted by 
the Committee, remaining charges that the Pain Relief Promotion 
Act could adversely impact pain control center on objections to 
the intent standard.\75\ As articulated by Oregon Senator Ron 
Wyden in his testimony before the Committee, the criticism is 
this:
---------------------------------------------------------------------------
    \75\ The intent distinction is found in Section 201(a)(i)(1):

      For purposes of this Act and any regulations to implement 
      this Act, alleviating pain or discomfort in the usual 
      course of professional practice is a legitimate medical 
      purpose for the dispensing, distributing, or administering 
      of a controlled substance that is consistent with public 
      health and safety, even if the use of such a substance may 
      increase the risk of death. Nothing in this section 
      authorizes intentionally dispensing, distributing, or 
      administering a controlled substance for the purpose of 
---------------------------------------------------------------------------
      causing death or assisting another person in causing death.

        Your bill would authorize local, state, and Federal law 
        enforcement officials, with no expertise and scant 
        training in health care, to dissect a physician's 
        intent with respect to prescribing pain relief 
        medications. * * * [T]he effect would be * * * 
        physicians' fear of being investigated by law 
        enforcement and losing their ability to practice 
        medicine will result in less aggressive pain management 
        for countless patients.

    Yet the intent distinction whose negative effects on pain 
relief are thus predicted is in fact now part of Federal law, 
the Assisted Suicide Funding Restriction Act, which was enacted 
in 1997, after having passed the Senate without a dissenting 
vote.\76\ Moreover, an intent standard is currently 
incorporated in the law of Senator Wyden's State of Oregon, as 
it is in most States, including many States represented by 
members of the Judiciary Committee.\77\
---------------------------------------------------------------------------
    \76\ See supra nn. 11 and accompanying text. As pointed out there, 
the intend standard in the Assisted Suicide Funding Restriction Act 
(ASFRA) governs not only Federal funding, but also the provision of 
medical treatment in Federal health care facilities and by physicians 
and other health care professionals employed by the Federal Government. 
The Committee is unaware of any evidence that the provision of pain 
relief in Federal facilities or by federally employed physicians has 
been chilled by ASFRA. Indeed, Veterans Administration hospitals 
implemented widely praised improvements in palliative care after 
passage of the act. S. Beckwith, ``VA Makes Better End-of-Life Care a 
Top Priority,'' ``Last Acts Newsletter,'' Summer 1998 at 6.
    \77\ In circumstances other than those of terminally ill 
individuals, Or. Rev. Stat. Sec. 163.125 continues to apply: ``Criminal 
homicide constitutes manslaughter in the second degree when * * * [a] 
person intentionally causes or aids another person to commit suicide.'' 
(Emphasis added.)
    Similarly, California Penal Code section 401 (West 1998) punishes 
any doctor (or other person) who ``deliberately aids, or advises, or 
encourages another to commit suicide.'' (Emphasis added.) New Jersey 
Statutes Annotated sec. 2C: 11-6 (West 1999) punishes anyone who 
``purposely causes or aids another person to commit suicide.'' 
(Emphasis added.) New York Penal Law sec. 125.15 (McKinney 1999) 
punishes anyone who ``intentionally causes or aids another person to 
commit suicide.'' (Emphasis added.) Wisconsin Statutes Annotated sec. 
940.12 (1997-98) punishes anyone who ``with intent that another take 
his or her own life assists such person to commit suicide.'' (Emphasis 
added.)
---------------------------------------------------------------------------
    As Dr. Eric Chevlen, director of Palliative Care at the 
Cancer Care Center of St. Elizabeth Medical Center in 
Youngstown, Ohio, testified, there is empirical evidence of the 
effect of an intent-based standard, similar to that in the Pain 
Relief Promotion Act, on the willingness of physicians to 
prescribe pain-killing drugs.\78\ During the 1990's, the six 
States of Iowa, Kansas, Louisiana, Rhode Island, Virginia, and 
Tennessee all adopted statutes strikingly similar in wording to 
the promotion of the Pain Relief Promotion Act protecting 
doctors who provide pain relief even at the risk of death while 
preventing intentionally causing death.\79\ The following 
charts, derived from DEA data, demonstrate that per capita 
morphine use went up, not down, after enactment of all of these 
laws:
---------------------------------------------------------------------------
    \78\ As explained in more detail in the following two subsections 
of this report, since the DEA automatically has the authority now to 
investigate cases where controlled substances have been used to violate 
State law, it has authority now to investigate whether these drugs were 
used ``intentionally'' to assist a suicide. The only new legal effect 
of the Pain Relief Promotion Act in almost every State is to provide 
clearer protection against a broader application of the law when 
practitioners are seeking to control pain.
    \79\ The relevant provisions are as follows: Iowa Code 
Sec. 707A.3.1. (Adopted 1996.) (``A licensed health care professional 
who administers, prescribes, or dispenses medications or who performs 
or prescribes procedures to relieve another person's pain or 
discomfort, even if the medication or procedure may hasten or increase 
the risk of death, does not violate section 707A.2 unless the 
medications or procedures are intentionally or knowingly administered, 
prescribed, or dispensed with the primary intention of causing 
death.''); Kan. Stat. Ann. Sec. 60-4403(a) (Adopted 1998.) (``A 
licensed health care professional who administers, prescribes or 
dispenses medications or procedures to relieve another person's pain or 
discomfort, even if the medication or procedure may hasten or increase 
the risk of death, does not violate K.S.A. 21-3406 and amendments 
thereto unless the medications or procedures are knowingly 
administered, prescribed or dispensed with the intent to cause death.); 
La. Rev. Stat. Ann. Sec. 14:32.12 (Adopted 1995). (``The provisions of 
this Section shall not apply to any licensed physician or other 
authorized licensed health care professional who * * * [p]rescribes, 
dispenses, or administers any medication, treatment, or procedure if 
the intent is to relieve the patient's pain or suffering and not to 
cause death.''); R.I. Gen. Laws Sec. 11-60-4(A) (``A licensed health 
care professional who administers, prescribes, or dispenses medications 
or procedures to relieve another person's pain or discomfort, even if 
the medication or procedure may hasten or increase the risk of death, 
does not violate the provision of this chapter unless the medications 
or procedures are knowingly administered, prescribed, or dispensed to 
cause death.''); Va. Code Ann. Sec. 8.01-622.1 (E). (``This section 
shall not apply to a licensed health care provider who (i) administers, 
prescribes or dispenses medications or procedures to relieve another 
person's pain or discomfort and without intent to cause death, even if 
the medication or procedure may hasten or increase the risk of death. * 
* * This section shall not apply to any person who properly administers 
a legally prescribed medication without intent to cause death, even if 
the medication may hasten or increase the risk of death.''); and Tenn. 
Code Ann. Sec. 39-13-216(b)(2) (Adopted 1993.) (``It is not an offense 
under this section to: * * * [p]rescribe, dispense, or administer 
medications or perform medical procedures calculated or intended to 
relieve another person's pain or discomfort (but not calculated or 
intended to cause death), even if the medications or medical procedures 
may hasten or increase the risk of death * * *'').
---------------------------------------------------------------------------
      
    
    
    While she testified in opposition to the Pain Relief 
Promotion Act, Dr. Kathleen M. Foley, attending neurologist in 
the Pain & Palliative Care Service at Memorial Sloan-Kettering 
Cancer Center and Professor of neurology, neuroscience and 
clinical pharmacology at the Cornell University Medical 
College, summarized significant evidence that in modern 
medicine providing effective pain relief does not entail an 
increased risk of death:

          Pain and palliative care experts have defined clear 
        distinctions between pain management and palliative 
        care, and physician assisted suicide. Yet, it has been 
        the advocates for physician assisted suicide who have 
        used the argument that opioids, such as morphine, kill 
        and to try to relate these practices. Yet, there is a 
        preponderance of evidence that demonstrates that the 
        proper use of opioids in patients with chronic pain, as 
        well as in patients at the end of life, does not hasten 
        their death. There is accumulating data to suggest that 
        the proper use of opioids may in fact prolong their 
        lives.
          Studies by Dr. Brescia at Calvary Hospital in New 
        York City show that there is no correlation between the 
        dose of opioids a patient receives in the last weeks of 
        life and the timing of their death. Studies of dying 
        patients who were being withdrawn from respiratory 
        support demonstrate that those patients who received 
        morphine lived longer than those who did not receive 
        morphine. Studies recently published from a series of 
        British hospices show no difference in the time to 
        death between those patients who were sedated to 
        control their symptoms as compared to those patients 
        who were not sedated. Finally, the doses of opioids 
        that are often used to treat patients at the end of 
        life are highly variable. The great majority of dying 
        patients are receiving doses in a range equivalent to 
        what you or I might receive as part of postoperative 
        pain management and these doses are safe and effective.

    The New York State Task Force on Life and the Law has made 
a similar point:

        While high doses of morphine can depress respiration 
        when administered to patients who have not developed 
        tolerance to the drug, physicians who treat patients 
        with morphine for the relief of pain increase the dose 
        gradually, so that tolerance can develop. * * * The 
        claim that the use of morphine at properly titrated 
        levels ``hastens'' patients' deaths, based on the 
        effects of high doses of morphine on patients who have 
        not developed tolerance, is entirely unfounded. It 
        represents one of the many myths about the consequences 
        of using narcotics in the clinical setting. * * * \80\
---------------------------------------------------------------------------
    \80\ The New York State Task Force on Life and the Law, ``When 
Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 
Supplement to Report April 1997'' (New York: The New York State Task 
Force on Life and the Law, 1997), p. 17. http://www.health.state.ny.us/
nysdoh/taskfce/sought.pdf

    If physicians do not need to increase the risk of death in 
order to provide the most effective pain relief available, even 
the theoretical possibility that preventing the use of 
controlled substances with intent to cause death will ``chill'' 
the provision of effective pain relief of course vanishes. 
However, although rare, there are circumstances in which 
providing effective pain relief may indeed increase the risk of 
death.\81\
---------------------------------------------------------------------------
    \81\ Dr. Walter R. Hunter, associate national medical director, 
VistaCare Hospice, Indianapolis, IN, testified concerning such an 
instance from his own experience:

        As an example of the work I am called to do daily, let me 
      describe a case of a young AIDS patient I cared for a few 
      years ago. On a Monday morning the hospice for whom I 
      worked received a phone call from his family that he was 
      having difficulty breathing. His nurse and I made a house 
      call. When we entered the room we could hear his laborious 
      and most respirations across the room. His respiratory rate 
      was 44 and he was unconscious. We immediately set to work. 
      I gave him 40 mg of Lasix (furosemide) intravenously. There 
      was no effect. I then gave him 10 mg of morphine 
      intravenously. There was no effect after several minutes. I 
      repeated the dose of 10 mg of morphine and waited several 
      minutes. Again, there was no effect. I gave 5 mg of 
      morphine. There was still no effect. I then gave 5 mg of 
      Valium (diazepam) in an attempt to sedate him and ease the 
      work of breathing. There was no effect. I repeated the 
      Valium dose and there was still no effect. I gave 5 mg of 
      morphine, waited, saw no effect and gave another, 10 mg of 
      marphine. After a few minutes, his respirations decreased 
      to about 20. This was a reasonable goal. However, instead 
      of stabilizing at 20, they continued to diminish and he 
      stopped breathing several minutes later.
          * * * * * * *
        I knew that there was a slight risk of lethal side 
      effects to the medications. But I knew that I might have to 
      risk them, tolerate them in part or in totality if I were 
      to attempt to ease his breathing easier. Had I intended the 
      side effect of cessation of breathing. I did not intend for 
      him to die, but I did intend to make his breathing, I would 
      not have given incremental doses of medicine over time and 
      observed his clinical response with each dose. I would have 
      given a very large dose all at once to stop the breathing.
          * * * * * * *
        * * * In short, the Principle of Double Effect guided me 
      through the decision making process and the actions I 
      performed in this case. Chairman's Substitute for H.R. 2260 
      recognizes what I did in this case as legitimate palliative 
      care, does not view my actions as assisting a suicide or 
      committing euthanasia, and therefore protects me from 
      prosecution for committing those acts.
    Therefore, the Pain Relief Promotion Act introduces into 
the Controlled Substances Act a ``safe harbor'' for physicians 
to protect them in any eventuality in which such an increased 
risk of death may be associated with the use of controlled 
substances to alleviate pain or discomfort. While existing DEA 
guidelines recognize and encourage the use of federally 
controlled substances for the treatment of pain, \82\ they do 
not mention or specifically protect the provision of a 
controlled substance to alleviate pain or discomfort ``even if 
the use of such a substance may increase the risk of death.'' 
This new protection, in the words of the American Medical 
Association, ``is a vital element in creating a legal 
environment in which physicians may administer appropriate pain 
core for patients.'' \83\
---------------------------------------------------------------------------
    \82\ In March 1990 the DEA published guidelines which stated 
``Controlled substances have legitimate clinical usefulness and the 
prescriber should not hesitate to consider prescribing them when they 
are indicated for the comfort and well-being of patients.'' 
``Guidelines for Prescribers of Control Substances: A Joint Statement 
of the Drug Enforcement Administration and the DEA/Practitioners 
Working Committee'' Physician's Manual, Drug Enforcement 
Administration,'' rev. Mar. 1990, p. 24. The DEA has also stated:

        Controlled substances and, in particular narcotic 
      analgesics, may be used in the treatment of pain 
      experienced by a patient with a terminal illness or chronic 
      discorder. These drugs have a legitimate clinical use and 
      the physician should not hestitate to prescribe, dispense, 
      or administer them when they are indicated for a legitimate 
      medical purpose. It is the position of the Drug Enforcement 
      Administration that these controlled substances should be 
      prescriged, dispensed, or administered when there is a 
---------------------------------------------------------------------------
      legitimate medical need.

Id., p. 21.
---------------------------------------------------------------------------
    \83\ Letter from Dr. E. Ratcliffe Anderson, executive vice 
president, American Medical Association, to Chairman Orrin Hatch (Apr. 
6, 2000), p. 1.
---------------------------------------------------------------------------

         e. the effect of title ii on states other than oregon
    At present, under the same June 5, 1998, ruling by Attorney 
General Janet Reno that allowed the use of federally controlled 
drugs to assist suicides which comply with Oregon State law, 
the Drug Enforcement Administration (DEA) may nevertheless 
revoke the registration of any doctor or other registrant who 
uses federally controlled substances to assist suicide ``in a 
state that has not authorized the practice under any 
conditions.'' \84\ Thus, in 49 States the bill does not 
increase the DEA's existing authority at all. Therefore, in all 
States other than Oregon, the bill will in no way increase DEA 
authority to investigate or revoke the registrations of health 
care personnel.
---------------------------------------------------------------------------
    \84\ See supra n. 14 and accompanying text.
---------------------------------------------------------------------------
    It will, in fact, limit such DEA authority in two 
significant ways.
    First, as noted in the preceding subsection, it will 
introduce an explicit ``safe harbor'' for physicians and other 
registrants when federally controlled substances are used to 
alleviate pain or discomfort even when this may increase the 
risk of death.
    Second, it will increase the burden of proof the DEA must 
meet when seeking to suspend or revoke a registration based on 
an intent to cause or assist in causing death whenever the 
registrant claims that she or he was acting to alleviate pain 
or discomfort in the usual course of professional practice. 
That burden will be raised from the current preponderance of 
the evidence standard common to such administrative proceedings 
to ``clear and convincing evidence,'' the highest standard to 
the civil law (the standard required, for example, for 
involuntary commitment to a mental health facility).
    In the words of Chairman Hatch at the Committee's hearing 
on this bill,

        [T]o address the concerns of health care providers, the 
        substitute bill that I will offer during the 
        Committee's mark-up of H.R. 2260 contains a provision 
        that is neither in the House bill nor the Senate 
        companion bill. The new provision, modeled on the 
        legislation reported out of this Committee during the 
        105th Congress, establishes the higher clear and 
        convincing evidentiary standard for DEA administrative 
        hearing involving allegations of assisted suicide or 
        euthanasia. I know DOJ and DEA oppose this higher 
        standard. However, when we completed our mark-up in 
        1998, I pledged to the members of this Committee--to 
        Senators Leahy and Feinstein--that I would continue to 
        work to see whether we could develop a broader a 
        broader consensus on this bill. I believe it is proper 
        for Congress to make a strong statement about the need 
        for state-of-the-art pain management and palliative 
        care and to restore the original intent of our drugs 
        laws relative to assisted suicide.

    Therefore, in all these States the only effect of the bill 
will be to reduce, and not increase, any conceivable ``chilling 
effect'' on pain medication prescription that may exist under 
the current Controlled Substances Act.\85\
---------------------------------------------------------------------------
    \85\ The DEA has stated:

      Even if H.R. 2260 were enacted, it is not feasible that DEA 
      would devote its limited resources to investigate an 
      allegation that a practitioner assisted suicide unless 
      either (i) the practitioner made a clear admission that s/
      he dispensed controlled substances with the specific intent 
      to assist suicide or (ii) competent state or local 
      authorities concluded--based on sufficient evidence 
      provided to DEA--that the practitioner dispensed controlled 
---------------------------------------------------------------------------
      substances with the specific intent to assist suicide.

Memorandum from Ken Ronald, DEA Congressional Affairs, Mar. 28, 2000.

                  f. the effect of title ii in oregon
    Oregon is the only State that has enacted legislation 
authorizing physicians to assist suicides, and therefore is the 
only State in which the DEA, under the June 1998 ruling of the 
Attorney General, currently cannot revoke or suspend 
registrations in such instances. Hence, it is the only State in 
which this legislation can even arguably be said to expand DEA 
authority over current practice under the Attorney General's 
highly debateable view of the current statutory situation. 
However, this expanded authority should not and will not lead 
to any increased DEA scrutiny of Oregon physicians' pain relief 
prescribing practices. Instead, reports and records required by 
the Oregon Death with Dignity Act will unmistakeably 
demonstrate whether federally controlled substances have been 
intentionally dispensed to assist suicide as authorized by 
Oregon State law.
    Under section 127.865(b) of the Oregon Revised Statutes, 
``The [Oregon Health] Division shall require any health care 
provider upon dispensing medication pursuant to ORS 127.800 to 
127.897 to file a copy of the dispensing record with the 
division.'' Thus, in order to comply with the Oregon Death with 
Dignity Act and escape criminal liability that would otherwise 
exist under Oregon law for assisting a suicide,\86\ a physician 
must file a form listing the precise drugs used to assist a 
suicide with State authorities.
---------------------------------------------------------------------------
    \86\ Whenever anyone assists suicide in a manner that does not 
comply with the Oregon Death with Dignity Act, Or. Rev. Stat. 
Sec. 163.125 continues to apply: ``Criminals homicide constitutes 
manslaughter in the second degree when * * * [a] person intentionally 
causes or aids another person to commit suicide.'' Under Attorney 
General Reno's ruling, such unauthorized assisted suicides can prompt 
adverse action by the DEA as well.
---------------------------------------------------------------------------
    The Drug Enforcement Administration has authority to 
subpoena these dispensing records from the State authorities. 
Under section 876 of the CSA, ``[i]n any investigation * * * 
with respect to controlled substances, the Attorney General may 
* * * require the production of any records (including books, 
papers, documents, and other tangible things which constitute 
or contain evidence) which the Attorney General finds relevant 
or material to the investigation.''
    The DEA therefore has the authority to obtain copies of any 
relevant reports filed with the Oregon authorities.\87\ These 
provide identification of each physician who has provided 
lethal drugs to a patient for the purpose of assisting suicide 
as permitted by Oregon law, and will identify the substances 
used.
---------------------------------------------------------------------------
    \87\ Oregon authorities have been quoted as indicating they would 
refuse to furnish the DEA with such reports. ``Oregon says data on 
suicide protected,'' ``The Oregonian,'' Nov. 27, 1999. The Committee 
notes that under the supremacy clause of article VI, cl. 2 of the U.S. 
Constitution, they would not legally have this option. It provides, 
``This Constitution, and the Laws of the United States which shall be 
made in Pursuance thereof * * * shall be the supreme Law of the Land; 
any Thing in the Constitution or Laws of any State to the Contrary 
notwithstanding.''
---------------------------------------------------------------------------
    This information will indicate unequivocally whether a 
federally controlled substance had been prescribed to assist 
suicide in violation of Federal law.\88\ If so, this would be 
sufficient in itself--without need for further investigation--
to provide adequate evidence for the suspension or revocation 
of the physician's registration to distribute controlled 
substances in accordance with 21 U.S.C. 824(a)(4).\89\
---------------------------------------------------------------------------
    \88\ It is the intent of the Committee that the DEA maintain 
confidentiality of the information so obtained to the full extent 
compatible with enforcement of the Controlled Substances Act.
    \89\ The situation would then fall within one of the limited 
circumstances in which the DEA states it would in practice be in a 
position to act against a practitioner's registration for assisting 
suicide, namely when ``the practitioner made a clear admission that s/
he dispensed controlled substances with the specific intent to assist a 
suicide.'' See supra n. 68.
    See 21 U.S.C. 824(c) for the procedure for such a suspension or 
revocation, and 21 U.S.C. 824(d) for the authority to ``suspend any 
registration simultaneously with the institution of proceedings under 
this section, in cases where [the Attorney General] finds that there is 
an imminent danger to the public health or safety.''
---------------------------------------------------------------------------
    The DEA would have the same authority to obtain such 
documents in any other State in which assistance of suicide 
should become legal and in which reports of such assistance 
must be made, as a matter of State law, to State authorities.
    Therefore, the DEA may identify all cases in which 
federally controlled substances have been used to assist 
suicide in Oregon in compliance with Oregon law \90\ simply by 
obtaining reports from the Oregon Health Division without ever 
having to review patient medical records or otherwise 
investigate physicians. Thus, physicians in Oregon who 
prescribe controlled substances for pain relief will have no 
reason to fear investigation of their use of controlled 
substances for pain, and should not, therefore, be deterred in 
any way from prescribing pain relief.
---------------------------------------------------------------------------
    \90\ Anyone who assists a suicide in Oregon but fails to provide 
Oregon authorities the required report is in violation of Oregon law. 
Under the Attorney General's June 1998 ruling, of course, registration 
under the CSA is currently subject to revocation ``where a physician 
fails to comply with state procedures in [assisting suicide].'' Thus, a 
physician who assists suicide without making the reports required by 
Oregon law is equally subject to registration revocation under current 
law and under the Pain Relief Promotion Act.
---------------------------------------------------------------------------

 g. preventing federally imposed clinical standards and protecting the 
                authority of states to regulate medicine

    The substitute proposed by Chairman Hatch and adopted by 
the Committee substantially rewrites the House-passed 
legislation to ensure that it provides the Federal Government 
no authority to mandate standards of clinical practice and that 
it protects the authority of the States to regulate medical 
practice.\91\
    The substitute now includes a provision stating: ``Nothing 
in the Pain Relief Promotion Act of 2000 (including the 
amendments made by such Act) shall be construed * * * to 
provide the Attorney General with the authority to issue 
national standards for pain management an palliative care 
clinical practice, research, or quality * * .'' Section 
201(a)(4)(B).
    In order to ensure that the Department of Health and Human 
Services does not use the bill as the basis to promulgate 
mandatory national clinical standards for pain management or 
palliative care, the provision in the bill providing for the 
collection and dissemination of protocols and evidence-based 
practices for pain management and palliative care (section 
903[a] being added to the Public Health Service Act by section 
101 of the bill) has been made specifically subject to 
provisions in the recently passed Healthcare Resarch and 
Quality At of 1999, Public Law 106-129, that provide that the 
relevant ``Agency shall not mandate national standards of 
clinical practice or quality health care standards. 
Recommendations resulting from projects funded and published by 
the Agency shall include a corresponding disclaimer'' and state 
``Nothing in this section shall be construed to imply that the 
Agency's role is to mandate a national standard or specific 
approach to quality measurement and reporting. In research and 
quality improvement activities, the Agency shall consider a 
wide range of choices, providers, health care delivery systems, 
and individual preferences.'' \92\
---------------------------------------------------------------------------
    \91\ After opposing the Lethal Drug Abuse Prevention Act in 1998, 
the American Medical Association, the National Hospice Organization, 
and other medical groups endorsed its substantially reworked successor, 
the Pain Relief Promotion Act, in 1999. In December 1999 the AMA House 
of Delegates adopted a resolution calling for changes in the bill to 
deal with a perceived concern that under it the Federal Government 
might be authorized to ``establish federal protocols and/or regulations 
for pain management and palliative care''. After detailed negotiations 
by Chairman Hatch and sponsor Senator Don Nickles with representatives 
for the AMA, the Pain Care Coalition, and other medical groups, a 
substitute was crafted to address this concern. This substitute, unlike 
the House-passed legislation, has now been endorsed by the Pain Care 
Coalition, which is comprised of the American Academy of Pain Medicine, 
the American Headache Society, and the American Pain Society. The AMA 
wrote to Chairman Hatch that ``The language of the Substitute * * * 
fully satisfies the concerns expressed by our House of Delegates.'' 
Letter from Dr. E. Ratcliffe Anderson, executive vice president, 
American Medical Association, to Chairman Orrin Hatch (Apr. 6, 2000), 
p. 2.
    \92\ Public Health Service Act, Sec. 902(e) and (f) [42 U.S.C. 
299a(e) and (f)].
---------------------------------------------------------------------------
    The bill's provision for training DEA and other law 
enforcement personnel has been substantially reworked. The 
training is now to be focused on how ``investigation and 
enforcement actions by law enforcement personnel may better 
accommodate the necessary and legitimate use of controlled 
substances in pain management and palliative care.'' This 
replaces language in the original bill which had been seen as 
suggesting that law enforcement personnel might themselves be 
``trained'' in how to make determinations about what is or is 
not appropriate pain management and palliative care.
    In addition, to clarify that the bill does not generally 
pre-empt State laws or standards relating to the practice of 
medicine, a provision has been added as section 201(a)(i)(3) 
stating, ``Nothing in this subsection shall be construed to 
alter the roles of the Federal and State governments in 
regulating the practice of medicine. Regardless of whether the 
Attorney General determines pursuant to this section that a 
practitioner's registration is inconsistent with the public 
interest, it remains solely within the discretion of State 
authorities to determine whether action should be taken with 
respect to the State professional license of the practitioner 
or State prescribing privileges.''

                           VII. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                       Washington, DC, May 9, 2000.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2260, the Pain 
Relief Promotion Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for effects on spending by the Department of 
Justice), who can be reached at 226-2860; Cynthia S. Dudzinski 
(for costs to the Health Resources and Services 
Administration), who can be reached at 226-9010; Christopher J. 
Topoleski (for costs to the Agency for Health Care Research and 
Quality), who can be reached at 226-9010; Shelley Finlayson 
(for the state and local impact), who can be reached at 225-
3220; and John Harris (for the private-sector impact), who can 
be reached at 226-2618.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

               Congressional Budget Office Cost Estimate


H.R. 2260--Pain Relief Promotion Act of 2000

    Summary: H.R. 2260 would increase an existing authorization 
of appropriations to the Health Resources and Services 
Administration (HRSA) for the purpose of making grants to 
public and private entities to educate and train health care 
professionals in palliative care. The act also would direct the 
Agency for Health Care Research and Quality (AHRQ) to develop a 
program to improve palliative care, and would prohibit the use 
of controlled substances for assisted suicide or euthanasia, 
regardless of any state law authorizing such activity.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing H.R. 2260 would result in 
additional discretionary spending of about $25 million over the 
2000-2005 period. Enacting this legislation could affect direct 
spending and receipts, so pay-as-you-go procedures would apply; 
however, CBO estimates that the amounts involved would be less 
than $500,000 a year.
    H.R. 2260 contains both an intergovernmental and a private-
sector mandate as defined in the Unfunded Mandates Reform Act 
(UMRA). CBO estimates that the act would result in no costs to 
state, local, or tribal governments, so the threshold 
established in UMRA ($55 million in 2000, adjusted annually for 
inflation) would not be exceeded. CBO also estimates that the 
costs of the private-sector mandate would fall below the 
threshold established in UMRA ($109 million in 2000, adjusted 
annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 2260 is shown in the following table. 
The costs of this legislation fall within budget function 550 
(health).

                                CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\
----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                              2000     2001     2002     2003     2004     2005
----------------------------------------------------------------------------------------------------------------
Estimated Authorization Level.............................        7        7        7        2        2        2
Estimated Outlays.........................................        2        6        7        5        3        2
----------------------------------------------------------------------------------------------------------------
\1\ The bill could also affect direct spending and receipts, but CBO estimates any additional costs and receipts
  would be less than $500,000 annually.

    Basis of estimate: For the purposes of this estimate, CBO 
assumes that the legislation will be enacted during fiscal year 
2000, that the necessary amounts will be provided each year, 
and that outlays will follow historical spending rates for 
these activities.

Spending subject to appropriation

    The estimated change in spending subject to appropriation 
has two components: (1) an increase in the existing 
authorization of HRSA grants for education and training of 
health care professionals, and (2) a new AHRQ research program 
aimed at improving the quality of care for terminally ill 
patients.
    The existing HRSA grant program received an appropriation 
of $23 million for fiscal year 2000. This program is part of a 
larger HRSA activity which has a current authorization of such 
sums as necessary through fiscal year 2002. H.R. 2260 would 
increase the existing target level of $23 million a year 
(within that ``such sums'' authorization) by $5 million. The 
agency would use the additional funds to award grants to public 
and private entities to develop, implement, and evaluate 
education and training programs in palliative care.
    H.R. 2260 would direct AHRQ to develop a research program 
to improve palliative care, mainly through the collection and 
dissemination of guidelines for providing such care. CBO 
estimates that implementing this provision would cost about $1 
million in fiscal year 2000 and $2 million annually thereafter, 
assuming the appropriation of the necessary amounts. (The 
agency received an appropriation of $111.4 million for 2000.)

Direct spending and revenues

    Violations of the act's provisions regarding the use of 
controlled substances to assist in suicide could face 
revocation of their license to prescribe controlled substances. 
Upon revocation of an individual's license, the Drug 
Enforcement Administration could seize any such substances in 
their possession. Thus, enacting H.R. 2260 could lead to the 
seizure of more assets and their forfeiture to the United 
States, but we estimate that any such increase would be less 
than $500,000 annually in value. Proceeds from the sale of any 
such assets would be deposited as revenues into the Assets 
Forfeiture Fund of the Department of Justice and spent from 
that fund, generally in the same year. Thus, the changes in 
direct spending from the Assets Forfeiture Fund would match any 
increase in revenues to that fund.
    Violators of the act's provisions also could be subject to 
criminal fines, so the federal government might collect 
additional fines if H.R. 2260 is enacted. Collections of such 
fines are recorded in the budget as governmental receipts 
(revenues), which are deposited in the Crime Victims Fund and 
spent in subsequent years. CBO expects that any additional 
receipts and direct spending would be negligible.
    Pay-as-you-go considerations: The Balanced Budget and 
Emergency Deficit Control Act sets up pay-as-you-go procedures 
for legislation affecting direct spending or receipts. Enacting 
H.R. 2260 could affect both direct spending and receipts, but 
CBO estimates that any such effects would be less than $500,000 
a year.
    Estimated impact on state, local, and tribal governments: 
H.R. 2260 contains an intergovernmental mandate as defined in 
UMRA, but CBO estimates that complying with the mandate would 
impose no costs on state, local, or tribal governments, and 
thus would not exceed the threshold established in that act 
($55 million in 2000, adjusted annually for inflation).
    In October 1997, an Oregon law that legalized doctor-
assisted suicide for terminally ill patients went into effect. 
Since that time, the interaction of the Controlled Substances 
Act with that state law has been controversial. As it currently 
stands, under both Oregon and federal law, it is acceptable for 
doctors in Oregon to use federally controlled substances for 
the purposes set forth in state law. H.R. 2260 would direct the 
Attorney General to give no force and effect to such a state 
law when determining whether the federal registration of a 
doctor under the Controlled Substances Act is consistent with 
the public interest. This would be a preemption of the Oregon 
``Death with Dignity Act'' because it would limit the options 
available to doctors acting under that state law. Because the 
state would not be required to take any action, the preemption 
would have not no cost. The act also would authorize $5 million 
for education and training in palliative care for health care 
professionals, many of whom are employed by state and local 
facilities.
    Estimated impact on the private sector: H.R. 2260 would 
create a new private-sector mandate for physicians registered 
to prescribe or administer federally controlled substances by 
prohibiting the use of such substances in physician-assisted 
suicides. Under current law, medical practitioners who are 
licensed by the state must also register with the U.S. Attorney 
General through the Drug Enforcement Administration if they 
intend to dispense or prescribe controlled substances. The act 
would amend the Controlled Substances Act to require the Drug 
Enforcement Administration to treat the use of controlled 
substances for physician-assisted suicide as a violation of the 
act without regard for state law permitting the practice. 
Doctors who violate the prohibition would have to give up their 
stocks of controlled substances and would no longer be 
permitted to use controlled substances in their medical 
practice. The prohibition would affect doctors in Oregon, which 
is the only state that permits physician-assisted suicide. CBO 
estimates that the direct costs associated with the mandate 
would fall below the threshold in UMRA ($109 million in 2000, 
adjusted annually for inflation).
    Previous CBO estimate: On September 24, 1999, CBO 
transmitted a cost estimate for H.R. 2260, as ordered reported 
by the House Committee on the Judiciary on September 14, 1999. 
On October 18, 1999, CBO transmitted a cost estimate for H.R. 
2260, as ordered reported by the House Committee on Commerce on 
October 13, 1999. The three versions of the legislation are 
similar and the cost estimates are nearly identical.
    Estimate prepared by: Federal Costs: DOJ--Mark Grabowicz; 
HRSA--Cynthia S. Dudzinski; AHRQ--Christopher J. Topoleski. 
Impact on State, Local, and Tribal Governments; Shellby 
Finlayson. Impact on the Private Sector: John Harris.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                   VIII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that H.R. 2260 will not have 
significant regulatory impact.

   IX. MINORITY VIEWS OF SENATORS LEAHY, KENNEDY, KOHL, AND FEINSTEIN

                                contents

    I. Introduction
    II. Background
        A. PRPA would override the Department of Justice's 
        well-reasoned position on the role of Federal drug 
        enforcement
        B. The many modifications made to PRPA have only made 
        it worse
    III. PRPA seriously violates basic principles of federalism
        A. PRPA contradicts the views of all nine Supreme Court 
        justices
        B. PRPA would eviscerate the States' well-established 
        power to regulate medical practices
        C. PRPA would undermine and effectively nullify many 
        innovative State laws and programs that have nothing to 
        do with physician-assisted suicide
    IV. Many in the medical community agree that PRPA would be 
harmful
        A. PRPA would discourage effective pain management and 
        palliative care
        B. PRPA would not address the needs of terminally ill 
        Americans or those suffering from chronic pain
        C. PRPA would replace State medical boards with Federal 
        drug enforcement agents as governors of pain management 
        practices
        D. PRPA would interfere with the goals of hospice and 
        comfort care
    V. The majority's other arguments are also incorrect
        A. PRPA would do nothing to lessen the demand for 
        physician-assisted suicide
        B. PRPA would further expand the DEA's authority over 
        the practice of medicine
        C. PRPA is not necessary to ensure the uniform 
        application of the Controlled Substances Act
        D. PRPA would have a chilling effect on the use of 
        morphine and other legal drugs to manage pain
    VI. Conclusion

                            I. Introduction

    We strongly oppose the Hatch substitute to H.R. 2260, the 
Pain Relief Promotion Act of 2000 (PRPA).\1\ Although we--like 
the majority--are troubled by physician-assisted suicide, we 
see this legislation as unprecedented, unnecessary, and 
harmful.
---------------------------------------------------------------------------
    \1\ For convenience, we will refer to the Hatch substitute as PRPA.
---------------------------------------------------------------------------
    It is unprecedented because it would effectively establish 
the first preemptive Federal standard of care for the medical 
profession in the United States--seriously undermining well-
established principles of federalism.
    It is unnecessary because it would needlessly encroach on 
State medical boards' traditional regulatory role in policing 
doctors' actions, a role they have been performing well for 
more than a century.
    And it is harmful because it would have a chilling effect 
on medical care givers, indirectly causing further suffering in 
thousands of terminally ill patients and leading to an increase 
in the number of suicides.
    Over thirty established National and State-based medical 
organizations share our concerns.\2\
---------------------------------------------------------------------------
    \2\ These include:
        American Academy of Family Physicians
        American Academy of Hospice and Palliative Medicine
        American Academy of Pharmaceutical Physicians
        American Geriatrics Society
        American Nurses Association
        American Pain Foundation
        American Pharmaceutical Association
        American Society for Action on Pain
        American Society of Health-System Pharmacists
        American Society of Pain Management Nurses
        College on Problems of Drug Dependence
        Hospice and Palliative Nurses Association
        National Foundation for the Treatment of Pain
        Oncology Nursing Society
        Society of General Internal Medicine
        Triumph over Pain Foundation
        California Medical Association
        Massachusetts Medical Society
        North Carolina Medical Society
        Oregon Medical Association
        Rhode Island Medical Association
        San Francisco Medical Society
        Indiana State Hospice and Palliative Care Association
        Hospice Federation of Massachusetts
        Kansas Association of Hospices
        Maine Hospice Council
        Maine Consortium of Palliative Care and Hospice
        Missouri Hospice and Palliative Care Association
        New Hampshire State Hospice Organization
        New Jersey Hospice and Palliative Care Organization
        New York State Hospice Organization
        Oregon Hospice Association
    Other organizations with concerns about PRPA include the Hospice of 
the Carolinas, Americans for Better Care of the Dying, and the North 
Carolina Board of Pharmacy.
---------------------------------------------------------------------------

                             II. Background

    Most States have debated physician-assisted suicide and 
decided to prohibit its practice. Thus far, one state--Oregon--
has passed a law permitting the practice. The issue continues 
to arise and voters in at least one other State will go to the 
polls in the upcoming elections to decide whether to legalize 
physician-assisted suicide.
    Following its long-standing tradition of public referenda, 
Oregon has held two public referenda votes on the issue of 
physician-assisted suicide. Oregon voters first passed the 
Oregon Death With Dignity Act by public referendum on November 
8, 1994, with 51 percent of the vote. The State legislature 
then decided to return the law for an additional public 
referendum in which voters were asked if they wanted to 
maintain the law. On November 4, 1997, Oregon's voters voted to 
keep the law by 60 percent of the vote.
    The Death With Dignity Act provides for a comprehensive and 
detailed procedure by which a mentally competent terminally ill 
patient may request assistance to end his or her life ``in a 
humane and dignified manner.'' \3\ Under the Oregon law, the 
physician is required to provide extensive documentation, 
including that the patient has made three separate requests for 
assistance in ending his or her life. One of these requests 
must be in writing and witnessed by two individuals who are not 
family members. The process must also include documentation 
that this is a voluntary request. A second opinion must confirm 
that the patient is a capable adult with a terminal illness and 
that the patient has less than six months to live. The patient 
and physician must also enter into a discussion about 
alternatives to physician-assisted suicide. Should the patient 
decide that he wants to engage in physician-assisted suicide, 
he must administer the lethal dose himself.
---------------------------------------------------------------------------
    \3\ Or. Rev. Stat. 127.800 et seq.
---------------------------------------------------------------------------
    In the first 2 years of its existence, 42 terminally ill 
Oregonians took their lives under the State statute. Thirty of 
the 42 had terminal cancer. During this period, a total of 
about 60,000 Oregonians have died, about 14,000 from cancer. 
Patients taking lethal drugs under the Oregon law account for 
only a minute percentage of these deaths. Last year, patients 
taking lethal medications under the law accounted for \9/100\ 
of one percent of deaths in Oregon and \39/100\ of one percent 
of cancer deaths in Oregon; the previous year, it was \6/100\ 
of one percent of deaths and \20/100\ of one percent of cancer 
deaths.\4\ A recent survey of Oregon physicians shows that many 
patients who request physician-assisted suicide choose--after 
appropriate medical, social, or spiritual intervention--not to 
take their lives.\5\
---------------------------------------------------------------------------
    \4\ A. D. Sullivan, et al., Legalized Physician-Assisted Suicide in 
Oregon--The Second Year, New England Journal of Medicine, vol. 342, no. 
8, at 598-604 (2000).
    \5\ L. Ganzini, et al., Physicians' Experiences with the Oregon 
Death With Dignity Act, New England Journal of Medicine, vol. 342, no. 
8, at 557-563 (2000).
---------------------------------------------------------------------------

   A. prpa would override the department of justice's well-reasoned 
            position on the role of federal drug enforcement

    In July 1997, and again in October 1997, Senator Hatch and 
Representative Hyde, writing on behalf of the Senate and House 
Judiciary Committees respectively, asked then Drug Enforcement 
Administration (DEA) Administrator Thomas Constantine whether 
prescribing or dispensing a controlled substance with the 
``deliberate intent of assisting a suicide'' would violate the 
Controlled Substances Act (CSA).
    In a letter dated November 5, 1997, Mr. Constantine 
responded that ``delivering, dispensing or prescribing a 
controlled substance with the intent of assisting a suicide 
would not fall under any current definition of a `legitimate 
medical purpose' '' and such activity would violate the CSA. 
Thus, 1 day after the second successful Oregon assisted suicide 
referendum, the DEA declared it had authority to prosecute 
physicians in Oregon who prescribed drugs at the request of a 
terminally ill patient in compliance with State law.
    On June 5, 1998, Attorney General Reno issued a letter on 
the Oregon referendum. In this letter, after a thorough review 
of relevant authority, General Reno rejected the DEA's 
position, concluding that a healthcare provider who assisted 
with a suicide in full compliance with the Oregon referendum 
did not violate the CSA. First, she determined that the CSA 
``was intended to keep legally available controlled substances 
within lawful channels of distribution and use'' by seeking 
``to prevent both the trafficking in these substances for 
unauthorized purposes and drug abuse.'' Then she found that 
Congress did not intend the CSA to ``displace the States as the 
primary regulators of the medical profession, or to override a 
State's determination as to what constitutes legitimate medical 
practice in the absence of a Federal law prohibiting that 
practice. Indeed, the CSA is essentially silent with regard to 
regulating the practice of medicine that involves legally 
available drugs. * * *''
    General Reno also noted that giving the DEA the mission of 
determining whether a doctor who assists a suicide in 
compliance with State law has gone beyond the legitimate 
practice of medicine or acted against the public interest would 
go far beyond the scope of the CSA because it would put the 
agency in the position of resolving fundamental questions of 
morality and public policy. Finally, she reiterated that the 
President continues to oppose assisted suicide and Federal 
support for it. Numerous National and State medical 
organizations, including the American Medical Association, 
concurred with the Attorney General's letter.\6\
---------------------------------------------------------------------------
    \6\ See, e.g., ``Statement of the American Medical Association to 
the Committee'' on Health, Education, Labor, and Pensions Committee, 
U.S. Senate, Oct. 13, 1999 (``The AMA concurred with the Attorney 
General's June 5, 1998 opinion that provided that neither the language 
of the CSA nor its legislative history supported the Act's application 
to physicians in compliance with state law.'').
---------------------------------------------------------------------------
    If enacted, PRPA would override the Department of Justice's 
position regarding the purpose of the CSA and the role of the 
DEA. For the first time, a federal statute will empower an 
agency--one established to go after drug abusers and 
traffickers--to regulate and investigate doctors, pharmacists, 
and other healthcare providers regarding their use of 
controlled substances for the purposes of pain relief.

     b. the many modifications made to prpa have only made it worse

    PRPA has been through numerous incarnations. Each time, 
supporters have restructured PRPA and added boilerplate 
language about pain relief, palliative care, or federalism to 
try to placate the bill's many critics. However, these frequent 
alterations have not changed the substance of the bill and done 
little but raise the suspicion that supporters want to conceal 
their true intention: to overrule Oregon's physician-assisted 
suicide law. Revealingly, for example, the majority views 
dismiss pain relief promotion in 2\1/2\ pages and then spend 
more than 26 pages arguing about assisted suicide.
    Most recently, Senator Hatch has offered a substitute 
amendment to PRPA. Unfortunately, changes offered by that 
substitute are mostly symbolic. For example, the substitute 
adds nonbinding findings about the importance of pain 
management and palliative care, declares a Decade of Pain 
Control and Research, and puts the provisions supposedly 
promoting palliative care before--rather than after--the 
provisions overruling Oregon law.
    These modifications do nothing to improve the bill. Worse, 
if they have any effect at all, it would be to hurt the 50 
million Americans in chronic pain and the millions of 
terminally ill Americans who all too often face excruciating 
agony before they die. Former Harvard Law School Dean James 
Vorenberg and other experts crisply summarize the majority's 
changes as follows: ``Senator Hatch's substitute bill doubles 
the size of the original H.R. 2260 by adding to it some hastily 
put together jurisdictional and procedural provisions that 
exacerbate the bill's potential for frightening physicians into 
undertreating pain.'' \7\ These experts also note, ``[W]e have 
concluded that the substitut[e] represents, if anything, a 
greater threat than the original to the effort to improve 
delivery of palliative care to patients who presently suffer 
unrelieved pain.'' \8\
---------------------------------------------------------------------------
    \7\ Letter from Harvard Law School Professor James Vorenberg, 
Boston College Law School Professor Charles H. Baron, and former 
Assistant Attorney General of the Massachusetts Board of Registration 
in Medicine Garrick F. Cole to Senator Edward Kennedy, dated Apr. 10, 
2000, at 1.
    \8\ Id.
---------------------------------------------------------------------------
    The first change offered by the Hatch substitute is some 
superfluous language intended to camouflage the legislation's 
attack on our system of federalism: ``Nothing in this 
subsection shall be construed to alter the roles of the Federal 
and State governments in regulating the practice of medicine.'' 
\9\
---------------------------------------------------------------------------
    \9\ Sec. 201(a).
---------------------------------------------------------------------------
    To suggest that this provision has any meaning is 
laughable. The whole point of the subsection--and indeed of the 
bill itself--is to overrule the people of Oregon's decision to 
allow a limited form of physician-assisted suicide. Currently, 
State governments may permit or forbid physician-assisted 
suicide as they see fit; under the bill, the Federal Government 
would usurp this decision from the States and effectively ban 
almost all physician-assisted suicide. Hence, the bill is 
intended to and would alter the roles of Federal and State 
governments in regulating the practice of medicine.
    In addition, the added language is merely a rule of 
construction. Rules of construction exist so that, if any 
ambiguity inheres in a statute, a court knows how to interpret 
that ambiguity. But PRPA's effect on Oregon law is not 
ambiguous. The Hatch substitute would clearly nullify Oregon's 
physician-assisted suicide law and greatly interfere with 
statutes passed by other States concerning pain management and 
palliative care. Moreover, if this bill had been enacted 
several years ago, when it was first proposed, every single 
doctor or pharmacist in Oregon who subsequently assisted a 
suicide would have faced the loss of his or her DEA 
registration, a mandatory minimum 20-year jail term, and a 
possible $1,000,000 plus fine.\10\ In fact, healthcare 
providers who participated in several assisted suicides in 
concert with other persons, could have even faced the death 
penalty.\11\ The purpose of the Hatch substitute, of course, is 
to give Oregon doctors the Hobson's choice of practicing 
medicine in compliance with State law or facing draconian 
federal sanctions. Hence, PRPA would not preserve the roles of 
the Federal and State governments with regard to regulating the 
practice of medicine; it would reverse them.
---------------------------------------------------------------------------
    \10\ 21 U.S.C. 841.
    \11\ 21 U.S.C. 848.
---------------------------------------------------------------------------
    It makes a mockery of the legislative process to pass a 
bill that clearly preempts State law and then contains a 
sentence suggesting that, if a court finds any ambiguity, the 
statute should be construed as not preempting State law. It is 
equally misleading to add a clause--as PRPA also does--
providing that the bill's physician-assisted suicide ban 
``applies only to conduct occurring after the date of enactment 
of this subsection'' and then claim that this provision would 
protect healthcare providers who have participated lawfully 
under Oregon's law. First, the Constitution's Ex Post Facto 
Clause would already shield these healthcare providers from 
criminal punishment.\12\ Second, regardless of PRPA, 
investigators can easily examine documents in Oregon naming 
physicians, family members, and others who may have provided 
advice for a physician-assisted suicide and use the information 
they glean to target those individuals for future scrutiny.
---------------------------------------------------------------------------
    \12\ See, e.g., Collins v. Youngblood, 487 U.S. 37, 41-43 (1990).
---------------------------------------------------------------------------
    Other language added by the Hatch substitute is similarly 
meaningless. For example, the Hatch substitute adds the 
following:

          Regardless of whether the Attorney General determines 
        pursuant to this section that the registration of a 
        practitioner is inconsistent with the public interest, 
        it remains solely within the discretion of State 
        authorities to determine whether action should be taken 
        with respect to State professional license of the 
        practitioner or State prescribing privileges.\13\
---------------------------------------------------------------------------
    \13\ Sec. 201(a).

This language is irrelevant because if the DEA revokes a 
doctor's registration, the doctor's career is effectively over, 
regardless of what the State may or may not do (and of course, 
given PRPA, State authorities are likely to follow the 
DEA).\14\ Moreover, even if the DEA decides not to revoke the 
doctor's registration, the agency's investigation might 
irreparably damage his or her career. And, regardless of what 
the DEA does, the state medical board could still sanction him 
or her, since under PRPA ``it remains solely within the 
discretion of State authorities'' to regulate the state's 
doctors.\15\
---------------------------------------------------------------------------
    \14\ In every State, a doctor must hold a ``current DEA 
registration'' to be able to prescribe controlled substances. If the 
Federal Government finds a doctor in violation of PRPA, the doctor will 
almost certainly lose his or her DEA registration, which will in turn 
eliminate his or her right under State law to prescribe a controlled 
substance. Loss of DEA registration makes it difficult--if not 
impossible--for a doctor to practice medicine, regardless of whether 
the State revokes the doctor's license to practice or takes other 
action against the doctor. See, e.g., Sokoloff v. Saxbe, 501 F.2d 571 
(2d Cir. 1974) (finding that revoking doctor's DEA registration 
seriously affects doctor's capacity to practice medicine).
    \15\ Sec. 201(a). Under the quoted PRPA language, a physician or 
pharmacist could go to jail for violating the CSA but still not lose 
his or her State medical or pharmacy license.
---------------------------------------------------------------------------
    The Hatch substitute also adds that nothing in PRPA shall 
be construed ``to provide the Attorney General with the 
authority to issue national standards for pain management and 
palliative care clinical practice, research, or quality.'' \16\ 
However, PRPA itself imposes such a national standard--or 
rather substandard--so this second rule of construction is also 
irrelevant. In short, the bill would give the DEA a statutory 
license to second-guess every doctor's administration of pain 
medication or palliative care to determine if the doctor is 
acting with a ``legitimate medical purpose.''
---------------------------------------------------------------------------
    \16\ Sec. 201(a).
---------------------------------------------------------------------------
    Moreover, what PRPA appears to take away from the Attorney 
General it returns with the following clause: ``except that the 
Attorney General may take such other actions as may be 
necessary to enforce this Act.'' \17\ This open-ended language 
not only contradicts the second rule of construction but also 
appears to confer broad authority on the Attorney General to 
regulate the practice of medicine within a State's borders. 
Finally, the standard of medical care developed through law 
enforcement training programs the Hatch substitute also 
authorizes would become the de facto standard.\18\ Law 
enforcement--not doctors, pharmacists, or nurses--would 
determine what is proper medical care.
---------------------------------------------------------------------------
    \17\ Id.
    \18\ Sec. 202.
---------------------------------------------------------------------------
    The Hatch substitute then states:

        For the purposes of this Act, alleviating pain or 
        discomfort in the usual course of professional practice 
        is a legitimate medical purpose for the dispensing, 
        distributing, or administering of a controlled 
        substance that is consistent with public health and 
        safety, even if the use of such a substance may 
        increase the risk of death.\19\
---------------------------------------------------------------------------
    \19\ Sec. 201(a).

    This ``double effect'' \20\ language adds nothing to the 
bill; alleviating pain or discomfort in this way is ``a 
prerogative doctors have always had.'' \21\ Not only does it 
confer no enforceable rights on doctors but it already exists 
as an ``administrative guideline.'' \22\ As Dr. Eric Chevlen, 
one the supporters of PRPA, conceded, ``[E]very day of my 
practice since I left medical school, I have been practicing 
under that law because that has been the law since the CSA was 
established. * * *'' \23\
---------------------------------------------------------------------------
    \20\ Rooted in 13th century Catholic theological teachings, the 
doctrine of ``double effect'' holds that an effect that would be 
morally wrong if it were caused intentionally is permissible if it was 
unintended--even if it was foreseeable. This principle has guided 
physicians for centuries: doctors are free to prescribe powerful drugs 
to relieve pain, even if these drugs run the risk of hastening the 
patient's death.
    \21\ Care for the Dying Congressional Mischief, New England Journal 
of Medicine, vol. 341, no. 25, at 1923-24.
    \22\ Testimony of Eric Chevlen before the Senate Committee on the 
Judiciary, July 31, 1998, at 79, line 6-17.
    \23\ Id. at 79, lines 14-16.
---------------------------------------------------------------------------
    Finally, supporters of the Hatch substitute trumpet the 
fact that they now require the Attorney General to prove by 
``clear and convincing'' evidence that a doctor intended to 
assist a suicide rather than by a mere ``preponderance'' of 
evidence.\24\ They suggest that this would reduce the chilling 
effect PRPA would have on healthcare providers. However, the 
Supreme Court has suggested that the difference between 
``preponderance'' and ``clear and convincing'' is unclear and 
that how these two standards of proof affect decisionmaking may 
well be ``unknowable.'' \25\ Moreover, Dean Vorenberg and other 
experts point out that:
---------------------------------------------------------------------------
    \24\ 24 Sect. 201(b).
    \25\ Addington v. Texas, 441 U.S. 418, 424-25 (1979).

        Whatever difference the higher level of proof might 
        make in other circumstances, it is likely to make very 
        little difference in this context. When we are speaking 
        of physicians' intentions, we are dealing with an 
        internal mental event that will not, in the ordinary 
        case, be amenable to any sort of objective proof. 
        Although, in the end, the Attorney General may have no 
        easier time proving what went on in a physician's mind 
        than a physician would have disproving it, the fact 
        that H.R. 2260 makes every physician vulnerable to 
        investigation and prosecution whenever he prescribes 
        controlled substances to a dying patient will 
        undoubtedly have a chilling effect on his willingness 
        to effectively treat pain.\26\
---------------------------------------------------------------------------
    \26\ Letter from Harvard Law School Prof. James Vorenberg, Boston 
College Law School Prof. Charles H. Baron, and former Assistant 
Attorney General of the Massachusetts Board of Registration in Medicine 
Garrick F. Cole to Senator Edward Kennedy, dated Apr. 10, 2000, at 2.


This chilling effect would possibly result in tens of thousands 
of patients dying without adequate pain or palliative care, and 
even subject doctors to civil liability for undertreating 
patients.

      III. PRPA Seriously Violates Basic Principles of Federalism

    PRPA seriously violates the basic tenets of federalism. 
Medical practice has always been regulated by the States under 
their traditional police powers. This bill attempts to upset 
the time-tested and constitutionally enshrined division of 
power between the Federal Government and the States in order to 
target a single law in a single State.
    Currently, physician-assisted suicide is illegal in 45 
States (36 by statute; nine under common law).\27\ In one 
State, Oregon, the citizens have twice approved by referendum 
physician-assisted suicide under very limited and highly 
regulated circumstances.\28\ Moreover, at least 20 States have 
established commissions or task forces to examine end-of-life 
care issues, including physician-assisted suicide.\29\ And 
voters in at least one State will be voting soon on whether to 
legalize physician-assisted suicide. Clearly, the States have 
made--and are continuing to make--a concerted effort to address 
the issue of physician-assisted suicide intelligently and 
thoroughly. PRPA would not enhance the regulation of physician-
assisted suicide. On the contrary, it is extremely harmful to 
the States' ongoing efforts in this area.
---------------------------------------------------------------------------
    \27\ D. Merrit, et al. of the National Conference of State 
Legislatures, and J. Lynn, et al. of the Center to Improve the Care of 
the Dying, The George Washington University, State Initiatives in End-
of-Life Care: Policy Guide for State Legislators, National Conference 
of State Legislatures, at 40 (1998) (the ``End-of Life Care: Policy 
Guide''). The four States which do not have a criminal statute or 
common law banning physician-assisted suicide are North Carolina, Ohio, 
Utah and Wyoming.
    \28\ Or. Rev. Stat. Sec. Sec. 127.800-127.995.
    \29\ End-of-Life Care: Policy Guide, at 3.
---------------------------------------------------------------------------
    In fact, PRPA's attempt to usurp the rights of Oregon's 
citizens to deal with the issue of physician-assisted suicide 
is entirely indefensible. When asked about PRPA, one Oregon 
resident--who twice voted against legalizing physician-assisted 
suicide--said:

        Why are they doing this? The people in Oregon had a 
        vote. I may not agree with it, but is Congress really 
        saying that our vote doesn't count, it doesn't matter? 
        That's just wrong.\30\
---------------------------------------------------------------------------
    \30\ Sam Howe Verhovek, ``Oregon Chafes at Measure to Stop Assisted 
Suicide,'' The New York Times, Oct. 29, 1999, at A1.

    Moreover, it is certainly ironic that the Republican 
Senators in the majority, who often promote themselves as 
members of the party of States' rights, would choose to 
overrule a law just because they are uncomfortable with it. 
Indeed, President Reagan's Solicitor General, Charles Fried, 
has pointed out that ``[i]f principles of federalism--to which 
I'd bet many of those voting for this bill fervently swear 
allegiance--mean anything, this issue is none of Congress' 
business.'' \31\
---------------------------------------------------------------------------
    \31\ Charles Fried, ``Leave the Personal to the States,'' The New 
York Times, Oct. 29, 1999, at A35.
---------------------------------------------------------------------------
    Although the majority argues that PRPA is designed to mend 
a ``50-state, crazy quilt approach to the regulation of 
controlled substances,'' \32\ it is readily apparent that PRPA 
was drafted and is being moved forward not in an effort to deal 
with controlled substances, but rather in a direct attempt to 
limit starkly the scope of the Oregon referendum and physician-
assisted suicide in that State. The ``problem'' that this bill 
aims to solve is simply that the voters of Oregon have decided 
to permit physician-assisted suicide in their State. Indeed, 
Thomas Marzen, general counsel for the National Legal Center 
for the Medically Dependent and Disabled and an originator of 
PRPA, has admitted that ``paralyzing Oregon's law has always 
been the goal.'' \33\ Marzen also stated that the strategy 
behind PRPA works--because doctors are very reluctant to go up 
against the DEA and the Controlled Substances Act''--that is, 
PRPA is effective because it intimidates doctors and chills 
their discretion in treating patients.\34\
---------------------------------------------------------------------------
    \32\ Majority Views at ____.
    \33\ The Oregonian, Sept. 8, 1999, at A8.
    \34\ Id.
---------------------------------------------------------------------------

    a. prpa contradicts the views of all nine supreme court justices

    The majority cites two 1997 Supreme Court cases on assisted 
suicide--Washington v. Glucksberg \35\ and Vacco v. Quill 
\36\--as support.\37\ Unfortunately for the majority though, 
the justices unanimously ruled in these cases that the States, 
not the Federal Government, should determine how best to 
address the issue of physician-assisted suicide.\38\
---------------------------------------------------------------------------
    \35\ 521 U.S. 702 (1997).
    \36\ 521 U.S. 793 (1997).
    \37\ The majority also points to the enactment of the ``Assisted 
Suicide Prevention Act,'' P.L. 105-12, which outlawed the use of 
Federal funds for the practice of physician-assisted suicide. But the 
existence of a Federal statute forbidding Federal money to be used for 
physician-assisted suicide says nothing about whether the Federal 
Government can or should forbid States from permitting (let alone 
funding) this practice.
    \38\ The Supreme Court's denial of certiorari in a case that 
challenged the Oregon referendum--Lee v. Oregon, 107 F.3d 1382 (9th 
Cir.), cert. denied, 522 U.S. 927 (1997)--further demonstrates the 
Court's belief that the issue of assisted suicide is best left to the 
States.
---------------------------------------------------------------------------
    In Glucksberg, for example, the Supreme Court refused to 
strike down a State assisted-suicide ban under Federal 
constitutional due process principles, concluding that ``the 
States are currently engaged in serious, thoughtful 
examinations of physician-assisted suicide and other similar 
issues. * * * Throughout the Nation, Americans are engaged in 
an earnest and profound debate about the morality, legality, 
and practicality of physician-assisted suicide. Our holding 
permits this debate to continue as it should in a democratic 
society.\39\
---------------------------------------------------------------------------
    \39\ Glucksberg, 521 U.S. at 719, 735.
---------------------------------------------------------------------------
    Other justices concurred in this point. Justice Souter 
noted that ``facts necessary to resolve the controversy * * * 
are more readily subject to discovery through legislative 
factfinding and experimentation. It is assumed in this case, 
and must be, that a * * * State [may] bar aid to any but a 
knowing and responsible person intending suicide. How, and how 
far, a State should act in that interest are judgments for the 
State.* * * \40\ He further stated that there is good reason to 
suppose that there will be additional ``experimentation'' by 
the States in this area and such experimentation is ``highly 
desirable.'' \41\ Justices O'Connor, Ginsburg, and Breyer 
stated, ``As the Court recognizes, States are presently 
undertaking extensive and serious evaluation of physician-
assisted suicide and other related issues. In such 
circumstances, the challenging task of crafting appropriate 
procedures for safeguarding * * * liberty interests is 
entrusted to the laboratory of the States.''\42\ Justice 
Stevens noted that ``[t]he Court ends its opinion with the 
important observation that our holding today is fully 
consistent with a continuation of the vigorous debate about the 
morality, legality, and practicality of physician-assisted 
suicide.''\43\
---------------------------------------------------------------------------
    \40\ Id. at 787.
    \41\ Id. at 788-89.
    \42\ Id. at 737 (citations and internal quotation marks omitted).
    \43\ Id.
---------------------------------------------------------------------------
    Indeed, this was exactly the result called for in an amici 
curiae brief filed by a large number of States. This brief, 
written by then Alabama Attorney General Jeff Sessions and 
other attorneys general, argued that

        [s]tatutes in a majority of States  *  *  *  recognize 
        an individual's right to refuse unwanted medical 
        treatment and, at the same time, reject any affirmative 
        act to end life. Whether that balance should be 
        abandoned and the line redrawn to permit an individual 
        to commit suicide without state interference, and then 
        redrawn yet again to permit assisted suicide, is a 
        matter appropriately left for the people to decide, 
        through their duly elected representatives or by 
        initiative ballot. The principles of federalism 
        embodied in our Constitution require no less.\44\
---------------------------------------------------------------------------
    \44\ Brief Amici Curiae of the States of California, et al., 
Washington v. Glucksberg, Nov. 8, 1996.

    PRPA would stop in its tracks the very experimentation the 
Supreme Court found so important. Not only would referenda and 
state legislatures be shut down on this issue but State courts 
as well. For example, in the absence of a Federal law to the 
contrary, State supreme courts would normally be free to 
disregard Glucksberg and recognize a State constitutional right 
to assisted suicide. Indeed, several State supreme courts had 
found in their State constitutions a right to die without 
unwanted medical intervention more than a decade before the 
U.S. Supreme Court followed suit with regard to the Federal 
Constitution.\45\ However, if PRPA passes, no State supreme 
court in the country could meaningfully recognize such a right. 
Under PRPA, the DEA--not to mention Federal, State, and local 
prosecutors--would be free to ignore such a State 
constitutional interpretation.
---------------------------------------------------------------------------
    \45\ See, e.g., Cruzan v. Director, MDH, 497 U.S. 261 (1990); In re 
Quinlan, 348 A.2d 801 (N.J 1975); Superintendent of Belchertown State 
School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).
---------------------------------------------------------------------------
    PRPA would not only choke off States' ``serious, thoughtful 
examinations'' about physician-assisted suicide,\46\ it would 
also discourage the administration of strong medicine to 
terminally ill patients. Thus, ironically enough, PRPA would 
perhaps invite the Supreme Court to find a constitutional right 
to physician-assisted suicide. Indeed, a number of justices 
left open the possibility of finding a right to assisted 
suicide under such circumstances. Justice Breyer noted, for 
instance, that if there were a law preventing the 
administration of drugs as needed to avoid pain at the end of 
life, then--as Justice O'Connor suggests, the Court might have 
to revisit its conclusions in these cases.'' \47\ And Justice 
Souter stated that ``While I do not decide for all time that 
respondents' claim should not be recognized, I acknowledge the 
legislative institutional competence as the better one to deal 
with that claim at this time.'' \48\ PRPA could lead to its 
sponsors' worst nightmare: a right to physician-assisted 
suicide that they could topple only by amending the 
Constitution.
---------------------------------------------------------------------------
    \46\ Glucksberg, 521 U.S. at 719.
    \47\ Id. at 792.
    \48\ Id. at 789.
---------------------------------------------------------------------------
    In addition, the Supreme Court's assisted suicide opinions 
have made clear that barriers to the availability of proper 
palliative care must be eliminated.\49\ In fact, the Court has,
---------------------------------------------------------------------------
    \49\ R. A. Burt, ``The Supreme Court Speaks--Not Assisted Suicide 
but a Constitutional Right to Palliative Care'', New England Journal of 
Medicine, vol. 337, at 1234-1236 (1997).

        conclude[d] that the double-effect doctrine provides a 
        rational and constitutional basis for States to allow 
        narcotics given in high dosages for pain relief in 
        terminally ill patients, while prohibiting assisted 
        suicide. Thus the majority opinion delineates an 
        acceptable justification for aggressive palliative care  
        *  *  *  The concurring justices go further suggesting 
        that the State is obligated to permit physicians to 
        provide adequate pain relief at the end of life, even 
        if such care leads to unconsciousness or hastens 
        death.\50\
---------------------------------------------------------------------------
    \50\ A. Lapers and B. Lo, ``The Supreme Court Addresses Physician-
Assisted Suicide: Can its Rulings Improve Palliative Care?'', Archives 
of Family Medicine, vol. 8, at 200-205 (1999).

    The Supreme Court has also given its imprimatur to the use 
of sedatives and analgesics when life-sustaining treatment is 
being withheld or withdrawn as well as to the practice of 
terminal sedation.\51\
---------------------------------------------------------------------------
    \51\ Thus, it is troubling that the majority loosely throws around 
the word ``euthanasia'' defined in a way that includes these approved 
end-of-life medical practices. See Majority Views, at n. 45. This is 
certainly not the Supreme Court's definition of the term nor ours.
    The majority also makes the timeworn argument that supporters of 
Oregon's physician-assisted suicide law really want to legalize 
euthanasia, and quote some of Derek Humphry's 1998 book ``Freedom to 
Die'' as ``proof.'' However, Humphry advocates a kind of assisted 
suicide illegal in Oregon, not physician-assisted suicide as practiced 
in the State. See D. Humphry and M. Clement, ``Freedom to Die,'' at 
313-34 (1998). Moreover, there is no evidence that Oregon voters share 
Humphry's support of euthanasia.
---------------------------------------------------------------------------
    Therefore, for all the above reasons, PRPA contradicts the 
Supreme Court's rulings in this area and flies in the face of 
settled jurisprudence.

b. prpa would eviscerate the states' well-established power to regulate 
                           medical practices

    The majority claims that PRPA would not usurp the police 
power of the States to regulate medical practices, and that it 
is not designed to negate Oregon's Death With Dignity Act. It 
is clear, however, that these are precisely the two things the 
bill would accomplish. In fact, this poorly written, poorly 
thought-out statute would wreak havoc on States' traditional 
police authority to regulate their own doctors--an authority 
they have enjoyed for more than 200 years. And for what? To 
tell the voters of Oregon that they cannot pass a law that has 
resulted in a couple of dozen assisted suicides each year by 
terminally ill patients.
    First, although the DEA has the authority to regulate how 
doctors and pharmacists use and dispense controlled substances, 
this regulatory power does not appear to include the ability to 
directly investigate doctors and pharmacists who have allegedly 
engaged in physician-assisted suicide. In the Attorney 
General's June 5, 1998 letter, the Department of Justice 
clearly limited its views to the situation in Oregon. By 
indicating that the DEA could not investigate doctors in 
Oregon, where physician-assisted suicide is permissible under 
certain limited circumstances, we do not believe the Department 
meant to imply that the DEA could investigate in other States. 
In our opinion, this letter did not resolve this issue. The 
States have traditionally regulated medical practice and all 50 
States have their own medical review boards, which are the 
proper forum to investigate such matters.
    This bill would add an unnecessary new layer of review of 
medical and pharmacy practice regarding pain management by 
providing the DEA with the power to investigate doctors and 
pharmacists independent from any criminal or medical board 
proceedings. In our view, the DEA is not qualified to handle 
investigations into allegation of the misuse of pain management 
drugs. When asked during a Committee hearing whether the DEA 
can discern between an appropriate dosage of drugs and one 
intended to kill, then DEA Administrator Constantine testified 
that:

        [T]hose types of evidentiary bases that you would have 
        to use would have to come from somebody in the medical 
        community. * * * So you really would need an expert 
        medical opinion to be able to say that the 
        administration of that level and amount of drugs to 
        that individual caused the death.\52\
---------------------------------------------------------------------------
    \52\ Testimony of Thomas Constantine before the Senate Committee on 
the Judiciary, July 31, 1998, at 55, lines 5-13.

And DEA Acting Administrator Donnie Marshall recently 
reiterated that the agency lacks the ``expertise'' to determine 
whether physicians are appropriately prescribing pain 
medications.\53\ As then Principal Deputy Associate Attorney 
General Joseph N. Onek testified, PRPA ``will embroil the DEA 
in decisions about the use of pain medication for terminally 
ill patients which it is poorly equipped to make.'' \54\
---------------------------------------------------------------------------
    \53\ Letter from Donnie R. Marshall to Senator Orrin G. Hatch, 
dated Apr. 5, 2000.
    \54\ Testimony of Joseph Onek before the Senate Committee on the 
Judiciary, July 31, 1998 at 28, lines 14-19.

    In addition, PRPA changes the fundamental balance that was 
struck in the Controlled Substances Act to create separate 
Federal and State domains with regard to controlled substances. 
The CSA is a law enforcement statute aimed at preventing drug 
abuse, diversion, and trafficking; that is why it is 
administered by the Attorney General--the Nation's chief law 
enforcement officer. However, as David Joranson, director of 
the University of Wisconsin Pain and Policy Studies Group and 
leading expert on the CSA, has testified, Congress certainly 
did not draft CSA with the intention of giving the Attorney 
General plenary authority over every aspect of Federal drug law 
enforcement. Specifically, Congress recognized that the 
Attorney General would have no real role in three areas: ``(1) 
the medical and scientific decisions necessary to administer 
the CSA, (2)  *  *  *  the medical uses of drugs, and (3)  *  *  
*  the role of State laws, especially those regulating medical 
practice.'' \55\ Yet PRPA licenses the Attorney General to 
invade all three of these areas, all domains that the CSA 
carefully reserved to the States.
---------------------------------------------------------------------------
    \55\ Testimony of David E. Joranson before Senate Committee on 
Health, Education, Labor, and Pensions, October 13, 1999, at 2-3.
---------------------------------------------------------------------------
    PRPA is unquestionably at war with the clear legislative 
intent behind the CSA. For example, in discussing the 
requirement of registration for doctors, pharmacies, and 
hospitals, the House Committee that crafted the CSA reported 
that those ``engaged in the distribution chain would be 
required to be registered, but registration would be as a 
matter of right where the individual or firm is engaged in 
activities involving these drugs that are permitted by State 
law.'' \56\ And, in spite of the majority's suggestion 
otherwise, the 1984 amendment by which Congress added a 
requirement that the Attorney General determine that 
registration was ``in the public interest'' is not to the 
contrary.\57\ This change was made simply to prevent ``improper 
diversion'' of controlled substances to people for whom they 
were not prescribed--such diversion risked fueling ``drug 
abuse.'' \58\
---------------------------------------------------------------------------
    \56\ H.R. 91-1444 (Sept. 10, 1970) (emphasis added).
    \57\ See 21 U.S.C. 823, 824.
    \58\ H.R. 98-0030, at 266-67 (Sept. 17, 1984); Humphreys v. DEA, 96 
F.3d 658, 661 (3d Cir. 1996).
---------------------------------------------------------------------------
    The American public overwhelmingly agrees that the States 
should regulate assisted suicide. The results of a national 
opinion survey released in July 1998 show that:
      72 percent of the respondents oppose Federal 
legislation prohibiting doctors from prescribing medication 
that a terminally ill patient could take to end his or her own 
life.\59\
---------------------------------------------------------------------------
    \59\ Id.
---------------------------------------------------------------------------
      76 percent of the respondents agree that ``[i]t 
is not appropriate for Congress to get involved in regulating 
legal drugs prescribed by doctors to their patients.'' \60\
---------------------------------------------------------------------------
    \60\ GLS Research, National Voter Research Findings, ``Attitudes 
Regarding the Terminally Ill'' (July 1998).
---------------------------------------------------------------------------
    Despite the majority's statements to the contrary, PRPA was 
obviously drafted to override Oregon's Death With Dignity Act. 
It is hardly a coincidence that until Oregon decided to permit 
physician-assisted suicide, Congress never considered any 
action to ``clarify'' the CSA's stance on the use of controlled 
substances for assisted suicide, even though physician-assisted 
suicides were occurring illegally around the country. Worse, 
PRPA nullifies the States' long-established authority to 
regulate medical practices within their own borders.

 c. prpa would undermine and effectively nullify many innovative state 
   laws and programs that have nothing to do with physician-assisted 
                                suicide

    What is particularly unfortunate about PRPA is that it not 
only usurps the States' traditional role in managing medical 
practices, but that it would undermine and even nullify 
innovative State efforts to deal with medical issues such as 
physician-assisted suicide and pain management. PRPA would run 
roughshod over countless licensure acts, pain statutes, and 
other medical and pharmacy laws and regulations, muting and 
distorting their effect.
    A number of States, for example, have passed laws directing 
doctors to alleviate their patients' pain. In 1988, Virginia 
passed the first state law addressing the need to treat pain in 
terminally ill cancer patients. Several States--starting with 
Texas in 1989, California in 1990, and Florida in 1994--have 
passed intractable pain treatment acts. Other States, starting 
again with California in 1997, have passed pain patients' bills 
of rights. PRPA would undercut these laws by threatening every 
healthcare provider aggressively treating pain with draconian 
penalties, including loss of DEA registration and/or a minimum 
20 years in jail. This would lead to more patient pain and 
suffering.
    PRPA would preempt other kinds of State laws as well. A 
number of States have passed innovative, sometimes unique laws 
to deal with the crisis of poor palliative care and pain 
management.\61\ PRPA would render these laws irrelevant.
---------------------------------------------------------------------------
    \61\ Just in the past few years, for example, California has 
enacted a host of creative statutes intended to improve the lives of 
the sick and dying. These include laws that:
     Add pain management and end-of-life care to the continuing 
education curricula of doctors, surgeons, and nurses;
     Eliminate the need for a triplicate prescription for 
Schedule II drugs for terminal patients;
     Institute an electronic monitoring system pilot program at 
the Board of Pharmacy;
     Establish an expedited system for HMO approval for pain 
medication for terminally ill patients;
     Revise California Medical Board disciplinary processes for 
doctors who treat their patients' pain;
     Require that all health care facilities assess pain as a 
fifth vital sign and require that the information be charted; and
     Mandate that medical school curricula include coursework 
in end-of-life care and pain management.
---------------------------------------------------------------------------
    Congress should pass legislation to reinforce and enhance 
State efforts to deal with the public health crisis of poor 
management, not bills undercutting and nullifying such efforts.

   IV. Many in the Medical Community Agree That PRPA Would Be Harmful

    This bill will result in a step backwards in the treatment 
of pain; physicians will be hesitant to prescribe and 
pharmacists will be hesitant to dispense sufficient doses of 
controlled substances due to a fear of unwarranted 
investigations, possible revocations of their Federal 
registrations, aggressive criminal prosecutions, and even long 
jail terms. As the New England Journal of Medicine--probably 
the world's preeminent medical publication--has stated in an 
editorial against PRPA:

        The bill's effect would be felt more by terminally ill 
        patients who do not wish physician-assisted suicide 
        than by those who do, since there are so many more of 
        them. Many terminally ill patients require extremely 
        high doses of controlled substances for adequate relief 
        of symptoms. Doctors, faced with the possibility of 
        long prison sentences if their intentions are misread, 
        may be reluctant to prescribe or administer such doses. 
        Treatment of pain in the terminally ill is already 
        notoriously inadequate, largely because our society's 
        preoccupation with drug abuse seeps into the medical 
        arena. Many doctors are concerned about the scrutiny 
        they invite when they prescribe or administer 
        controlled substances, and they are hypersensitive to 
        `drug-seeking behavior' in patients. Patients, as well 
        as doctors, often have exaggerated fears of addiction 
        and the side effects of narcotics. Congress would make 
        this bad situation worse.\62\
---------------------------------------------------------------------------
    \62\ ``Care for the Dying--Congressional Mischief,'' New England 
Journal of Medicine, vol. 341, no. 25, at 1923-24.

In short, PRPA would make physicians and pharmacists far less 
likely to prescribe and dispense the most effective pain 
management drugs, thus needlessly causing patients to suffer 
from otherwise treatable pain and encouraging them to consider 
suicide as a way to end their torment.

 A. PRPA would discourage effective pain management and palliative care

    Unrelieved pain is a public health crisis in the United 
States. Fifty percent of patients experience moderate to severe 
pain at least half the time in their last days of life.\63\ 
Opioids are the major class of analgesics used in the 
management of moderate to severe pain because of their 
effectiveness, the ease of establishing an appropriate dose, 
and favorable risk to benefit ratio.\64\ Opioids, however, are 
also classified as a controlled substance under the CSA.
---------------------------------------------------------------------------
    \63\ ``The Study to Understand Prognoses and Preferences for 
Outcomes and Risks of Treatment,'' The Journal of the American Medical 
Association, Vol. 274, at 1591-98 (1995).
    \64\ The Cancer Pain Management Panel. Clinical Management of 
Cancer Pain. Practice Guideline No. 9 Agency for Health Care Policy and 
Research, U.S. Department of Health and Human Services, at 49-60 
(1994).
---------------------------------------------------------------------------
    The DEA, therefore, would be newly empowered to interfere 
in the physician-patient and/or pharmacist-patient relationship 
to determine why the physician or pharmacist is prescribing or 
dispensing (or perhaps overprescribing or overdispensing) this 
medication. And prosecutors would be newly authorized to follow 
up on these investigations and bring charges against any 
healthcare provider who prescribes or dispenses a controlled 
substance to a patient who later dies. In fact, if PRPA passes, 
prosecutors could pursue charges against healthcare providers 
in Oregon and other States even if those providers only attempt 
to assist a patient's suicide.\65\ This could easily happen 
where, for instance, a doctor prescribes a lethal medication 
and the terminally ill person subsequently opts not to commit 
assisted suicide.
---------------------------------------------------------------------------
    \65\ See, e.g., 21 U.S.C. 846.
---------------------------------------------------------------------------
    Worse, because the Controlled Substances Act was written as 
a law to prevent drug abuse, diversion, and trafficking, it 
contains broad language regarding those who might be considered 
a conspirator or aider and a better of a drug-related 
crime.\66\ By lumping health care providers who aggressively 
treat pain together with drug abusers and drug traffickers, 
PRPA throws a wide regulatory net over the medical community. 
Federal law enforcement officers could not only investigate and 
charge physicians and pharmacists but also nurses, orderlies, 
hospital directors, medical board members, and others. Only a 
test case would really be able to define the scope of this 
extraordinarily broad statute.
---------------------------------------------------------------------------
    \66\ Id.
---------------------------------------------------------------------------
    Therefore, PRPA would inevitably lead to physicians and 
pharmacists not prescribing or dispensing or perhaps 
underprescribing opioids in an effort to escape unnecessary 
bureaucracy and potentially harmful investigations.\67\
---------------------------------------------------------------------------
    \67\ Experts have pointed out that the CSA itself contains 
impediments to effective pain management. A New York State Commission 
of Health report, for example, details a number of these obstacles and 
makes numerous recommendations about how to remove them. These 
recommendations include definitional changes, the partial filing of 
Schedule II prescriptions, and broadening the existing law under which 
controlled substances may lawfully be prescribed and dispensed to 
habitual users but still be used to treat nonmalignant acute and 
chronic pain.
    If the majority had truly wanted to improve pain management, it 
could have implemented some of these recommendations. However, other 
than putting into statute what DEA regulations already provide 
concerning the use of controlled substances for pain, this legislation 
does nothing to address any concerns raised about the CSA's effect on 
pain treatment.
---------------------------------------------------------------------------
    Some of the most distinguished doctors, pharmacists, 
ethicists, and scientists in the country have testified before 
Congress about this problem, including Kathleen M. Foley, 
Attending Neurologist in the Pain and Palliative Care Service 
at Memorial Sloan-Kettering Cancer Center and Professor of 
Neurology at Cornell University; Arthur L. Caplan, Ph.D., 
Director of the Center for Bioethics and Trustee Professor at 
the University of Pennsylvania; Scott Fishman, M.D., Chief of 
the Division of Pain Medicine at the University of California 
at Davis and author of ``The War on Pain;'' Joseph J. Fins, 
M.D., F.A.C.P., Associate Professor of Medicine at Cornell 
University; David Orentlicher, M.D., J.D., Professor of Law and 
Co-Director of the Center for Law and Health at the Indiana 
University School of Law-Indianapolis; David E. Joranson, 
Senior Scientist and Director of the Pain and Policy Studies 
Group at the University of Wisconsin Comprehensive Cancer 
Center at Madison; and Calvin H. Knowlton, R.Ph., M.Div., 
Ph.D., Past President of the American Pharmaceutical 
Association. Numerous others wrote in to express similar views.
    As Dr. Fins put it, for example, PRPA would ``have the dire 
de facto effect of criminalizing the use of opioids at the end 
of life. This would be a tragedy for dying patients and their 
families who would have to watch them suffer. As a physician, 
it seems inappropriate to me that medical practice should be 
dictated by the fear of a regulatory agency and not by 
professional and scientific norms.'' \68\ Dr. Caplan testified 
similarly:
---------------------------------------------------------------------------
    \68\ Testimony of Joseph J. Fins, M.D., F.A.C.P. before the Senate 
Committee on Health, Education, Labor, and Pensions, Oct. 13, 1999.

        It is well known from many previous studies that 
        physicians cite legal concerns as one of the main 
        reasons for their unwillingness to use narcotics and 
        other agents to control pain aggressively. * * * I 
        believe that this legislation will scare many doctors 
        and nurses and administrators into inaction in the face 
        of pain. * * * Studies consistently indicate that 
        physicians are unduly influenced by regulatory 
        considerations in their use of opioids and other drugs. 
        * * * If the goal of the PRPA is to encourage pain 
        control it is hard to see how the introduction of more 
        liability and greater prosecutorial authority will 
        achieve this end.\69\
---------------------------------------------------------------------------
    \69\ Testimony of Arthur L. Caplan, Ph.D., before the Senate 
Committee on Judiciary, Apr. 25, 2000, at 3-5.

---------------------------------------------------------------------------
Dr. Fishman echoed these views:

        The possibility of having one's actions misinterpreted 
        with extremely harsh consequences will almost certainly 
        make most physicians think twice before ordering a 
        strong narcotic pain reliever, and many will 
        unfortunately opt to ignore the patients' pain. * * * 
        It is ironic that the ``Hatch substitute,'' which seeks 
        to prevent physician-assisted suicide, will ultimately 
        impair one of the truly effective counters to 
        physician-assisted suicide, which is swift and 
        effective pain medicine. Thus, the ``Hatch substitute'' 
        will neither bring about what it seeks to accomplish, 
        nor prevent what it seeks to block.\70\
---------------------------------------------------------------------------
    \70\ Written Testimony of Scott Fishman, M.D., before the Senate 
Committee on Judiciary, Apr. 20, 2000, at 1-2.

    Patients weighed in, too. Kimberly A. Kynsi, for example, 
wrote to make sure that Congress knew how much she would suffer 
---------------------------------------------------------------------------
if PRPA passes. As she explained:

          I am a chronic pain sufferer. I have lived with this 
        pain my whole life, (I am 45 years old), and it will be 
        with me until I die. I finally received help in dealing 
        with this pain 4\1/2\ years ago. I now have an almost 
        normal life. I can enjoy my family and get out of the 
        house to enjoy the world. Before I got help with 
        opiates I was ready to give up on life. I was screaming 
        and crying nearly 24 hours a day.
          My concern with H.R. 2260 is that someone other than 
        my doctor will dictate how much opiates I can receive. 
        As it is, I now take more than twice what is 
        ``standard'' for my body weight. It took me 40 years to 
        find out what it felt like not to be in pain. This bill 
        will frighten doctors away from prescribing the 
        necessary medications for people like me, chronic pain 
        sufferers. I have a difficult enough time getting 
        refills when my doctor is on vacation. This bill will 
        make it impossible.\71\
---------------------------------------------------------------------------
    \71\ Letter from Kimberly A. Kynsi to Senator Dianne Feinstein, 
dated Apr. 6, 2000.

    Besides this evidence, there are numerous reports and 
studies concluding that overly bureaucratic regulation of pain 
management drugs discourages effective palliative care. The 
Institute of Medicine (IOM), for example, recently published an 
exhaustive report pointing out that ``[n]umerous studies 
indicate that dying patients and patients with advanced 
illnesses experience considerable amounts of pain and other 
physical and psychological symptoms.''\72\ Many studies also 
demonstrate that one of the primary barriers to treating that 
pain adequately has been government regulation. For example:
---------------------------------------------------------------------------
    \72\ M. J. Field, and C. K. Cassel, eds., with the Institute of 
Medicine, ``Approaching Death: Approving Care at the End of Life'' 128 
(1997).
---------------------------------------------------------------------------
     In a survey of controlled substance laws in 38 
countries, the World Health Organization found that ``[t]he 
proliferation of national laws and/or administrative measures 
regulating the prescription and distribution of opioid drugs 
necessary for cancer pain relief has hindered access by 
patients to these drugs.'' \73\
---------------------------------------------------------------------------
    \73\ World Health Organization, ``Cancer Pain Relief,'' at 28 
(1986).
---------------------------------------------------------------------------
     A nationwide study of cancer physicians 
demonstrated a ``reluctance to prescribe'' opioids due to 
concern about ``excessive regulations.'' These excessive 
regulations were viewed as barriers to effective cancer pain 
management. Doctors'' concerns were greatest in States with 
triplicate prescription programs.\74\
---------------------------------------------------------------------------
    \74\ J. Von Roenn, et. al., ``Results of Physicians' Attitudes 
toward Cancer Pain Management Survey,'' Proceedings of the American 
Society of Clinical Oncology, Vol. 109, p. 326 (1991).
---------------------------------------------------------------------------
     In California, 69 percent of physicians surveyed 
stated that the risk of disciplinary action made them more 
reluctant to use opioids in pain management with \1/3\ 
reporting that their patients may be suffering from neglected, 
treatable pain.\75\
---------------------------------------------------------------------------
    \75\ F. J. Skelly, ``Fear of Sanctions Limits Prescribing of Pain 
Drugs,'' American Medical News, at 19 (Aug. 15, 1994).
---------------------------------------------------------------------------
     A survey completed by the New York Ad Hoc 
Committee on Pain Management for the New York State Health 
Commissioner found that physicians Amay be concerned that 
aggressive pain management using controlled substances could be 
misconstrued as inappropriate and/or excessive prescribing and 
could lead to a professional misconduct or other administrative 
proceedings.'' \76\
---------------------------------------------------------------------------
    \76\ New York State Public Health Council, Report to the 
Commissioner of Health, ``Breaking Down the Barriers to Effective Pain 
Management: Recommendations to Improve the Assessment and Treatment of 
Pain in New York State'' at 10 (1998).
---------------------------------------------------------------------------
     Seventy-one percent of physicians surveyed in New 
York State reported that they do not prescribe effective 
medication for cancer pain, if such prescriptions require them 
to use a special State-monitored prescription form for 
controlled substances even when the medication is legal and 
medically indicated for the patient.\77\
---------------------------------------------------------------------------
    \77\ Id. at 11, App. F.
---------------------------------------------------------------------------
     A study of 13,625 elderly cancer patients living 
in Medicare/Medicaid certified nursing homes found 26 percent 
of residents with daily pain received no medication for pain. 
Daily pain is prevalent among nursing home residents with 
cancer; that pain is often left untreated, especially in 
African-American and older patients; \78\ and
---------------------------------------------------------------------------
    \78\ R. Bernabei, et al., ``Pain Management in Elderly Patients 
with Cancer,'' Journal of the American Medical Association, vol. 279, 
at 1877-1882 (1998).
---------------------------------------------------------------------------
     An article states that one-quarter of medical 
licensing and disciplinary board members surveyed were unaware 
that prescribing opioids for an extended period for cancer 
patients was both legal and acceptable medical practice.\79\
---------------------------------------------------------------------------
    \79\ D.E. Joranson, ``Federal and State Regulation of Opioids,'' 
Journal of Pain and Symptom Management, vol. 5, at S12-23 (1990).

    These studies point to the need for less regulation, and 
demonstrate that current restrictions already result in massive 
undertreatment of pain and neglect of suffering. Here are some 
real-life examples of that undertreatment and its consequences, 
examples which are sure to multiply if PRPA becomes the law of 
the land:
     E.B., a 54-year-old man, underwent successful 
surgery for bladder cancer. After the surgery, he complained of 
severe pelvic pain. E.B. was given limited amount of Percodan, 
but this only partially relieved his pain. His family physician 
was afraid to increase the dose. E.B. went to pain clinics in 
Dallas and ended up in Lubbock, TX. He was given hypogastric 
nerve blocks without relief. According to his daughter, E.B. 
asked for pain medication to enable him to drive back to 
Kansas, but the pain clinic refused. Upon arriving home, E.B. 
took Tylenol, but without any relief. He then wrote a brief 
note, saying that he could no longer live with his pain, went 
to the garage, shut the door, and started the car. E.B. died of 
carbon monoxide poisoning. Even more tragically, the exhaust 
fumes seeped into an upstairs bedroom, killing E.B.'s 18-year-
old daughter.\80\
---------------------------------------------------------------------------
    \80\ Letter from Harvey L. Rose, M.D. to Senator Dianne Feinstein, 
dated Apr. 3, 2000.
---------------------------------------------------------------------------
     A 78-year-old man (E.H.) was denied adequate pain 
relief medicine on consecutive visits to the emergency room for 
severe pain resulting from an acute medical condition. In 
desperation, E.H. shot himself through the head, and his wife--
who would have had to return to a nursing home upon his death--
followed suit and shot herself in the heart.\81\
---------------------------------------------------------------------------
    \81\ Id.
---------------------------------------------------------------------------
     An 80-year-old woman was diagnosed with spinal 
stenosis. After being denied pain medication for the extreme 
discomfort that she was experiencing relating to this disorder, 
the elderly woman jumped from a window in her senior citizen 
center, plummeting 20 stories to her death.\82\
---------------------------------------------------------------------------
    \82\ Id.
---------------------------------------------------------------------------
     A 29-year-old athlete (T.T.) committed suicide due 
to agonizing pain that she was experiencing due to a particular 
medical disorder. T.T.'s physician, a specialist in the field 
of this disorder, had been reluctantly prescribing medication 
that adequately controlled her pain. However, the physician 
became so uncomfortable prescribing the medicine that one day 
he refused to grant her an early refill. In several emotional 
suicide notes, T.T. related her adamant disgust with the 
already disgraceful and difficult procedure associated with 
procuring adequate pain medication from doctors. Because she 
could not cope with the excruciating pain that she was 
suffering from without the relief of pain medicine, T.T. killed 
herself.\83\
---------------------------------------------------------------------------
    \83\ Id.
---------------------------------------------------------------------------
     A patient was suffering from severe chronic daily 
headaches and was put on pain medication for relief. The doctor 
then decided that he could no longer continue to prescribe the 
medication to her. As a result, the patient had a severe 
migraine and experienced nausea and vomiting for several days. 
In an attempt to control the pain that she was experiencing, 
she overdosed on aspirin and acetaminophen, and died in the 
hospital soon after.\84\
---------------------------------------------------------------------------
    \84\ Id.
---------------------------------------------------------------------------
     A 78-year-old woman (S.N.) was suffering serious 
pain in her neck and shoulders due to previous disc surgeries. 
S.N.'s doctors had been unwilling to give her enough pain 
medication and repeatedly called her a drug addict because of 
her requests for additional pain relief medicine. S.N. 
attempted suicide four times through various means including 
wrist slashing, medication overdoses, and electrocution in her 
bathtub. She was then sent to a psychiatric hospital and a 
clinic for drug addicts before she became the patient of 
another doctor. That doctor was willing to prescribe adequate 
pain medication, and as a result S.N. continued to live 
(without the desire to attempt suicide) in a senior center 
until her death 2 years later from natural causes.\85\
---------------------------------------------------------------------------
    \85\ Id.
---------------------------------------------------------------------------
     A patient was suffering from early prostate cancer 
with mild pain, but was very concerned with how his pain would 
be managed by doctors as his condition became steadily worse. 
Several weeks after his first consultation with another doctor, 
the patient killed himself out of fear that he would not be 
given adequate pain medication.\86\
---------------------------------------------------------------------------
    \86\ E-mail from Scott Fishman, M.D., chief of the Division of Pain 
Medicine, University of California at Davis, to Senator Dianne 
Feinstein, dated Apr. 4, 2000.
---------------------------------------------------------------------------
     A cardiologist was caring for a patient with heart 
disease and colon cancer. The cardiologist was so wary of 
prescribing any pain medication for the patient's significant 
abdominal pain, that he asked another doctor to write the 
prescription for him. If that doctor had not been willing to 
step in for the cardiologist and prescribe the medication, and 
had not actively encouraged the cardiologist to continue 
administering the medication, the patient would have died an 
agonizingly painful death. Additionally, that second doctor 
reports that he has witnessed patients suffer for weeks, or 
even months with pain from advanced stages of cancer when 
doctors have been unwilling to prescribe pain relief 
medication.\87\
---------------------------------------------------------------------------
    \87\ Letter from Robert V. Brody, M.D., San Francisco General 
Hospital, to Senator Dianne Feinstein.
---------------------------------------------------------------------------
     A Dateline NBC segment has described the ordeal of 
William Bergman. Mr. Bergman was suffering from terminal lung 
cancer. Doctors refused to prescribe adequate pain control and 
as a result he died in agony. The California Medical Board 
ruled that the doctors had undertreated Mr. Bergman's pain, but 
refused to take action against the doctors.\88\
---------------------------------------------------------------------------
    \88\ See Sheryl Gay Stolberg, ``Doctors Walk Fine Line in Giving 
Painkillers to Dying Patients'', San Diego Union-Tribune, Oct. 21, 
1998, at E5.
---------------------------------------------------------------------------
     A patient (J.D.) with ``unremitting, sharp, 
burning, throbbing'' pain from cancer was not given adequate 
pain relief medication. As a result, J.D. had unnecessarily 
agonizing difficulty sleeping, breathing, and even sitting in a 
chair. Despite the fact that J.D.'s wife was a physician who 
strongly advocated for pain relief to relieve his condition, he 
was still unable to receive adequate medication due to the 
reluctance of doctors to prescribe pain relief medicine.\89\
---------------------------------------------------------------------------
    \89\ Letter from Karen C. Douglas, M.D. to Senator Dianne 
Feinstein, dated Apr. 5, 2000.

    The majority claims that PRPA would help solve the problems 
demonstrated by these cases. But that is simply false. In fact, 
PRPA would cause additional suffering in tens of thousands of 
terminally ill patients or patients with chronic pain, and it 
would drive many of these individuals to suicide. PRPA not only 
fails to address the underlying need that may cause some 
patients to seek physician-assisted suicide, it exacerbates 
that need. Thus, the bill would have the perverse effect of 
increasing the demand for assisted suicide.
    As PRPA reduces the number of physicians who are willing to 
prescribe the most effective pain relieving medications 
(controlled substances such as narcotics and opioid 
analgesics), the number of suffering patients and the amount of 
each's pain will steadily grow. Many of these patients--unable 
to handle the severity of their pain--will desperately turn to 
the ``final exit'' of assisted suicide, an outcome we wish to 
avoid at all costs.
    Moreover, PRPA would not even do what it really intends: 
stop physician-assisted suicide in Oregon. A physician in 
Oregon (or any other State) could still assist a suicide by 
prescribing a noncontrolled substance, an over-the-counter 
drug, or common chemicals such as carbon monoxide or potassium 
(which Jack Kevorkian used)--though, of course, this is not the 
intent of the Oregon law.

  b. prpa would not address the needs of terminally ill americans or 
                   those suffering from chronic pain

    Despite the claim made by the bill's title that it would 
promote pain relief, this legislation does virtually nothing to 
address the needs of the 50 million Americans who are in 
chronic pain or the needs of the 2.4 million Americans who die 
each year.
    As discussed above, the Institute of Medicine recently 
completed one of the most wide-ranging and detailed studies 
ever done on end-of-life care. To undertake the study, the IOM 
appointed a 12-member committee of experts in medical and 
nursing care for chronically and severely ill patients, ethics, 
quality of care, health policy, health services research, law, 
economics, social services, and related fields. This committee 
met with numerous groups, researchers, and others and surveyed 
the relevant literature. The committee settled on seven 
recommendations for ``the achievement of a compassionate care 
system that dying people and those close to them can rely on 
for respectful and effective care.'' \90\ However, in spite of 
this work, as Dr. Kathleen Foley of Memorial Sloan-Kettering 
Cancer Center testified, PRPA does not even begin to address a 
single one of these recommendations.\91\ Worse, the legislation 
actually defies the recommendations. Rather than work to reform 
``burdensome regulations * * * that impede effective use of 
opioids to relieve pain and suffering'' (recommendation 3), for 
example, PRPA imposes just such a regulation, one of 
breathtaking preemptive sweep.
---------------------------------------------------------------------------
    \90\ The seven IOM recommendations are:
    (1) People with advanced, potentially fatal illnesses and those 
close to them should be able to expect and receive reliable, skillful, 
and supportive care.
    (2) Physicians, nurses, social workers, and other health 
professionals must commit themselves to improving care for dying 
patients and to using existing knowledge effectively to prevent and 
relieve pain and other symptoms.
    (3) Because many problems in care stem from system problems, 
policymakers, consumer groups, and purchasers of health care should 
work with health care practitioners, organizations, and researchers to:

         Strengthen methods for measuring the quality of 
      life and other outcomes of care for dying patients and 
      those close to them;
         Develop better tools and strategies for 
      improving the quality of care and holding healthcare 
      organizations accountable for care at the end of life;
         Revise mechanisms for financing care so that 
      they encourage rather than impede good end-of-life care and 
      sustain rather than frustrate coordinated systems of 
      excellent care; and
         Reform drug prescription laws, burdensome 
      regulation, and State medical board policies and practices 
      that impede effective use of opioids to relieve pain and 
      suffering.

    (4) Educators and other healthcare professionals should initiate 
changes in undergraduate, graduate, and continuing education to ensure 
that practitioners have relevant attitudes, knowledge, and skills to 
care well for dying patients.
    (5) Palliative care should become, if not a medical speciality, at 
least a defined area of expertise, education, and research.
    (6) The Nation's research establishment should define and implement 
priorities for strengthening the knowledge base for end-of-life care.
    (7) A continuing public discussion is essential to develop a better 
understanding of the modern experience of dying, the options available 
to patients and families, and the obligations of communities to those 
approaching death.
    See M.J. Field, and C.K. Cassel, eds., with the Institute of 
Medicine, Approaching Death: Approving Care at the End of Life 7-13 
(1997).
    \91\ Testimony of Kathleen Foley, M.D., before the Senate Committee 
on the Judiciary, July 31, 1998 at 28, lines 15-17.
---------------------------------------------------------------------------
    True, PRPA does authorize $5 million in grants for 
education and training. But there is less here than meets the 
eye. The money is for less than 2 years and the Health 
Resources Services Administration (HRSA) already has the 
authority to fund this kind of training. In addition, as the 
Congressional Budget Office recently noted, the existing HRSA 
grant program has already received an appropriation of $23 
million for fiscal year 2000.\92\
---------------------------------------------------------------------------
    \92\ Congressional Budget Office Cost Estimate, H.R. 2260, at 2 
(May 9, 2000).
---------------------------------------------------------------------------
    The $5 million in additional money is rather paltry 
compared to the billions this Nation spends each year on end-
of-life care and less than what some private foundations 
disburse in a single year on medical education and training 
grants. In fact, the Robert Wood Johnson Foundation alone spent 
over $80 million in the past 5 years on training for palliative 
care and pain management. Moreover, a General Accounting Office 
review of how HRSA used funds set aside for suicide prevention 
projects--as required under the 1997 Federal ban against 
funding of assisted suicide--found HRSA had not placed a high 
priority on spending this money and had not even spent all the 
money available. Nothing in PRPA would address this problem. As 
Dr. Foley testified, ``[T]he Bill provides insufficient funding 
to have any ``real'' impact on pain and palliative care 
education and training.'' \93\
---------------------------------------------------------------------------
    \93\ Testimony of Kathleen Foley, M.D., before the Senate Committee 
on the Judiciary, Apr. 25, 2000, at 1.
---------------------------------------------------------------------------
    At bottom, this meager authorization seems far more related 
to public relations than public health. It is simply not a 
serious commitment of resources to this huge problem.

     c. prpa would replace state medical boards with federal drug 
      enforcement agents as governors of pain management practices

    Since they were established more than a century ago, State 
medical boards have evolved into sophisticated regulatory 
agencies dedicated to protecting the public from unacceptable 
practitioners. All States have medical licensing boards that 
oversee the practice of medicine, including physicians' 
prescribing patterns. The current system of medical licensure 
has worked well in protecting the public health. This system is 
also the most appropriate and most effective forum for 
regulating pain management practices.
    PRPA would establish a new and burdensome oversight 
mechanism whereby the DEA would have prospective authority to 
deny DEA registration based on the DEA's interpretation of the 
healthcare provider's intent. Any DEA investigation on the 
issue of a provider's intent--which is always an issue when a 
controlled substance is given to a patient--would be quite 
intrusive because the DEA would have the virtually impossible 
task of discerning ``why'' a physician prescribed the drug he 
or she did and ``why'' the particular amount of that drug was 
prescribed. As many healthcare providers have pointed out and 
as was discussed in the Department of Justice's testimony 
before the Committee, most terminally ill patients already have 
an ample supply of controlled substances on hand to use in any 
suicide effort. The DEA, therefore, would not be able to make 
an objective determination based upon the drug and dosage the 
patient had on hand. Rather, the DEA would be forced to 
determine the intent behind every prescription or combination 
of prescriptions. This cannot be done without an intrusive 
investigation that pries both into the practice of the 
physician and pharmacist involved, and the lives of the family 
and friends of the deceased. PRPA would make the question of a 
physician's intent in treating a patient crucial and, as the 
Department of Justice stated,

        the issue of intent would not necessarily be resolved 
        simply by asking physicians about their intent. To 
        establish intent, the DEA might also need to 
        investigate the details of the physician's prescribing 
        practices and of the physician's relationship with the 
        patient and the patient's family.\94\
---------------------------------------------------------------------------
    \94\ Letter of L. Anthony Sutin, Acting Assistant Attorney General, 
to Senator Orrin G. Hatch, dated Sept. 16, 1998.

    In addition, the issue of a physician's intent is not 
always clear. Research and experience indicate that when 
physicians and nurses take action that may hasten death, they 
invariably have many intentions.\95\ For example, one study 
revealed that when doctors ordered controlled substances to be 
administered to patients who were dying and who were to have 
life-sustaining treatment withheld or withdrawn, those 
physicians typically had more than three different intentions 
behind their orders and 36 percent of the physicians had as one 
of their intentions hastening death. Similarly, nurses who 
administered the medications had on average almost three 
intentions, and 39 percent of them said that one of their 
intentions was to hasten death.\96\
---------------------------------------------------------------------------
    \95\ T.E. Quill, The Ambiguity of Clinical Intentions, New England 
Journal of Medicine, vol. 329, at 1039-1040 (1993).
    \96\ W. Wilson, et al., ``Ordering and Administration of Sedatives 
and Analgesics During the Withholding and Withdrawal of Life Support 
from Critically Ill Patients,'' Journal of the American Medical 
Association, vol. 267, at 949-953 (1992).
---------------------------------------------------------------------------
    As these figures indicate, the issue of ``intent'' is 
especially complicated in the case of treating terminally ill 
patients. Many doctors subscribe to the principle of ``double 
effect,'' under which it is perfectly ethical for a doctor to 
administer medicine to a patient even if it is foreseeable that 
that medicine will hasten the patient's death. Indeed, ``there 
is evidence that a significant number of physicians support the 
practice of hastening death in particular situations.'' 
Glucksberg, 521 U.S. at 749 n.12 (Stevens, J., concurring) 
(citing relevant literature).
    Moreover, this enhanced role for the DEA conflicts with the 
mission of medical licensure boards, which, unlike the DEA, 
have long held the role of assuring appropriate delivery of 
medical care. If enacted, this legislation would replace the 
well-established system of peer review and regulation at the 
State level with an untested, superfluous, and intrusive 
Federal enforcement mechanism. According to the Federation of 
State Medical Boards (FSMB), in cases where the inappropriate 
prescribing of controlled substances is determined, State 
medical boards already require a physician to surrender his or 
her DEA certificate as part of the disciplinary action taken 
and to notify the DEA of such action. In fact, surrendering a 
DEA certificate may be only one of the conditions a medical 
board imposes on a physician. If the physician fails to comply 
with all the terms of the disciplinary action, the board may 
then revoke his or her medical license.
    Under the current system, all licensed physicians are 
subject to peer review. Hospitals, other healthcare 
organizations and insurance companies are asked to provide 
licensing boards with any information about adverse actions 
they have taken against individual physicians. These reports 
are reviewed by the State boards and, if necessary, 
disciplinary action is taken. In addition, a majority of State 
boards require all licensees to continue their medical 
education in order to maintain licensure. These processes are 
designed to help identify those individuals who should no 
longer be engaged in the practice of medicine and to ensure 
that physicians maintain their level of medical knowledge and 
clinical abilities.
    In some States, licensure boards are taking steps to 
educate physicians on the proper use of pain medication for 
patients nearing the end of life. Recently, the FSMB published 
``Proposed Model Guidelines for the Use of Controlled 
Substances'' in the treatment of pain. The federation is 
recommending all States adopt these model guidelines as a way 
to educate and reassure physicians that they can safely use 
controlled substances to treat pain.
    Clearly, the boards have taken a comprehensive approach to 
the governing and advising of physicians and pharmacists on the 
practice of pain management. There is no reason to strip them 
of their responsibility or to pile on layers of unnecessary 
Federal bureaucracy.

   d. prpa would interfere with the goals of hospice and comfort care

    In 1997, 3200 hospices cared for nearly 500,000 terminally 
ill patients in the United States. Hospices provide 
comprehensive and compassionate care by addressing the 
physical, psychological, social and spiritual needs of dying 
patients and their families. One of the main goals of hospice 
care is to treat patients' pain aggressively through a variety 
of means, including the use of controlled substances. These 
include the use of morphine and other opioids so patients can 
maintain the highest quality of life during their remaining 
days.
    Hospice care use has increased significantly in Oregon as a 
result of the physician-assisted suicide debate and the legal 
requirement that physicians and their patients discuss options 
other than physician-assisted suicide. This increase 
demonstrates the public's need for information concerning 
alternatives to physician-assisted suicide and the overall need 
for improvements in end-of-life care. Oregon is also the only 
State to have disciplined a physician for the under-use of pain 
medication and has consistently been in the top ten States for 
per capita morphine use.
    PRPA neither addresses the public's need for information 
concerning alternatives to physician-assisted suicide nor 
promotes improvements in end-of-life care that might make a 
terminally ill individual seek other options. Palliative care 
and pain management are both evolving fields that should be 
left to medical professionals, not law enforcement, to provide 
care for the dying without excessive government intrusion. PRPA 
does not address these serious concerns, and in the opinion of 
numerous physicians, pharmacists, hospice providers, nurses, 
and pain patients, it will only exacerbate the problems of pain 
management and hinder the ongoing evolution of the fields of 
palliative care and pain management.

          V. The Majority's Other Arguments are Also Incorrect


 a. prpa would do nothing to lessen the demand for physician-assisted 
                                suicide

    The majority contends that PRPA would discourage physician-
assisted suicide. Nothing could be further from the truth.
    Forty-seven bioethicists with differing views about 
physician-assisted suicide wrote members of the Judiciary 
Committee that:

        H.R. 2260 will not eliminate physician-assisted 
        suicide. Every study that has been conducted in this 
        country reveals its occurrence, in every part of the 
        country where such research has been undertaken, 
        underground and in completely uncontrolled conditions. 
        This bill will simply drive the practice further 
        underground into more disguised and more unprotected 
        conditions.\97\
---------------------------------------------------------------------------
    \97\ Letter from Alan Meisel, J.D., Director of the Center for 
Bioethics and Health Law, University of Pittsburgh, and 46 other 
bioethicists to Senator Arlen Specter, dated Apr. 24, 2000, at 2-3 
(footnote listing research studies omitted).

And supporters of PRPA agree. Rabbi Bleich--who has written two 
law review articles on the subject--not only testified that 
PRPA ``will not have the effect of reducing the incidence of 
physician-assisted suicide,'' \98\ but even noted that ``I 
doubt very much * * * that the passage of the bill will prevent 
as much as a single suicide.'' \99\ Supporters of PRPA have 
focused so intently on Oregon--the one State that, so far, has 
dissented from the majority view on physician-assisted 
suicide--that they have blinded themselves to the fact that 
physician-assisted suicide is a national problem and a tragic 
symptom of a healthcare system that is failing some of our most 
vulnerable citizens.
---------------------------------------------------------------------------
    \98\ Testimony of Rabbi J. David Bleich before the Senate Committee 
on the Judiciary, Apr. 25, 2000, at 51, lines 8-12.
    \99\ Id., at 77, lines 12-17.
---------------------------------------------------------------------------
    If we truly want to end the practice of physician-assisted 
suicide everywhere, we need a far more complete and complex 
response than this bill provides.
    For starters, we need to do much more to educate people on 
end-of-life care. For example, a study published in the Journal 
of the American Medical Association found that of the 50 best 
selling general and specialty medical textbooks, less than \1/
4\ contained helpful of end-of-life information.\100\ Moreover, 
recent polls reveal that nine out of ten Americans would want 
the kind of care that hospice provides but that many who 
respond do not know what services hospices offer.\101\ Last, a 
recent study published reviewing the Oregon experience found 
that when physicians did find an intervention appropriate for 
the patient, including pain management, the request for 
physician-assisted suicide receded.\102\
---------------------------------------------------------------------------
    \100\ M. Rabow, et al., ``End-of Life Care Content in 50 Textbooks 
from Multiple Specialties,'' Journal of the American Medical 
Association, vol. 283, at 771-78.
    \101\ See, e.g., Judy Talbert, ``Expansion of Hospice Benefits 
Needed,'' Pittsburgh Post-Gazette, June 1, 1999, at F10.
    \102\ L. Ganzini, et al., ``Physicians' Experiences with the Oregon 
Death With Dignity Act,'' New England Journal of Medicine, vol. 342, 
no. 8, at 557-563 (2000).
---------------------------------------------------------------------------

 b. prpa would further expand the dea's authority over the practice of 
                                medicine

    The majority repeatedly states that PRPA would only expand 
the DEA's authority over the practice of medicine in one State: 
Oregon. That is incorrect.
    The DEA's current mission is to determine the ``appropriate 
use'' of drugs only as part of an effort to prevent diversion 
and illegal drug trafficking. Yet, the majority wants the DEA 
to now get involved in defining the medical uses of drugs.
    The CSA was passed to prevent and control drug abuse--to 
interrupt the flow of illicit drugs to the street. It was never 
intended to empower the DEA to make a medical determination of 
what is a reasonable and necessary use of drugs for patient 
care, at least beyond the narrow band of cases involving 
illegal drug diversion or trafficking.

   c. prpa is not necessary to ensure the uniform application of the 
                       controlled substances act

    The majority claims that this legislation is necessary to 
avoid the creation of 50 different State policies regarding the 
Controlled Substances Act. The CSA classifies drugs as to their 
dependence and medical use and is directed to prevent diversion 
and illegal drug trafficking. No evidence has been brought 
forward to show that States are revising the schedules included 
in the CSA.
    If the proponents really want uniform usage of drugs in the 
practice of medicine, then the Federal Government would have to 
preempt State medical and pharmacy laws. Such an effort would 
run counter to the long established way in which States, not 
the Federal Government, have regulated medicine and pharmacy 
practices.

 d. prpa would have a chilling effect on the use of morphine and other 
                       legal drugs to manage pain

    Proponents of this legislation point to States in which 
morphine use increased after similar legislation passed and try 
to argue that this shows that passage of PRPA would not have a 
chilling effect on pain management. However, as shown in the 
discussion in part IV and as demonstrated in the letters and 
other documents filed by the many State medical societies 
opposing PRPA, the legislation would have a chilling effect on 
the use of morphine and other legal drugs to manage pain. 
Moreover, the proponents' argument is simply wrong on its face.
    First, proponents ignore the fact that some of the top-
ranked States for pre capita morphine use have no comparable 
statutes to PRPA--including Nevada (fourth ranked) and Vermont 
(fifth ranked). See Figures 1 and 2. And Oregon itself, PRPA's 
sponsors' target, ranked second in per capita morphine use.
    Second, proponents fail to recognize that the national 
average for morphine use increased during the periods they 
cite. The fact is that morphine use increased in most States 
during this period, not just in a few States with PRPA-type 
laws.
    Third, proponents carefully omit reference to States where 
passage of PRPA-type legislation was followed by a decrease in 
the use of morphine or an increase less than the national 
average. For example, Oklahoma passed a law similar to PRPA in 
1998, a year when Oklahoma was ranked 30th in the country for 
the use of morphine. A year later, Oklahoma had dropped to 34th 
in the Nation--even though morphine use increased nationally 
during this period. See Figure 3. Similarly, while there has 
been an increase in morphine use in Iowa since that State 
passed a PRPA-type law in 1996, this increase has been less 
than the national average. See Figure 4. And the same can be 
said for Louisiana, which passed a law similar to Iowa's in 
1995. See Figure 5.
    Fourth, the morphine-use statistics proponents cite do not 
specify who is receiving the drug. We do not know if the 
numbers reflect morphine receipt by post-operative pain 
patients, chronic pain patients, and/or dying patients. To know 
whether a State PRPA-type law really had a chilling effect on 
prescription of morphine, we would need to know if such severe 
regulation caused doctors to be more unwilling to prescribe 
morphine to patients facing imminent death.
    And the answer to that question is an unqualified yes. As 
discussed above, numerous surveys of doctors have shown that 
they are often unwilling to give morphine to dying patients 
because of regulatory fears.
    DEA regulations published in 1974 already make clear the 
policy that controlled substances should be used for pain. 
Simply changing the statute will not solve the well-documented 
health crisis patients in pain face today.


                             VI. Conclusion

    Physician assisted-suicide is a disturbing practice that we 
all seek to eliminate. We would prefer that no person ever be 
put in the situation where he or she is suffering so much pain, 
that he or she chooses self-inflicted death over the agony 
being endured. The reality, however, is that physician-assisted 
suicide does exist and PRPA does not address the reasons why 
individuals ask their physicians for help in dying.
    Indeed, the majority, under the guise of amending the CSA, 
has attempted to substitute its judgment for those of the 
States, especially that of Oregon. The result of this misguided 
effort is a bill that would discourage appropriate, palliative 
care and may actually increase the demand for physician-
assisted suicide.
    If the majority really wishes to reduce physician-assisted 
suicide, it should address the root causes of the practice. 
Patients do not commit assisted suicide because their 
physicians have the power to prescribe controlled substances 
for pain relief. On the contrary, for the most part, patients 
commit suicide because they are suffering from chronic pain 
and/or depression, because they fear being a burden on their 
loved ones, or because they do not have access to palliative or 
hospice care. This bill does nothing to address these far 
reaching and complex problems. In fact, PRPA just makes them 
worse.
    Ironically, proponents of PRPA invoke the Hippocratic maxim 
``first, do no harm'' as a justification for the bill. Instead, 
it is Congress that should invoke that principle here with 
regard to itself--and reject this unprecedented, unnecessary, 
and harmful legislation.
                                   Patrick Leahy.
                                   Ted Kennedy.
                                   Herb Kohl.
                                   Dianne Feinstein.

                       X. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 625, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

                       CONTROLLED SUBSTANCES ACT

                  TITLE II--CONTROL AND ENFORCEMENT

           *       *       *       *       *       *       *


PART C--REGISTRATION OF MANUFACTURERS, DISTRIBUTORS, AND DISPENSERS OF 
             CONTROLLED SUBSTANCES; PIPERIDINE REPORTING

           *       *       *       *       *       *       *


                       registration requirements

    Sec. 303. [823] (a) The Attorney General * * *

           *       *       *       *       *       *       *

    (h) The Attorney General shall register an applicant to 
distribute a list I chemical unless the Attorney General 
determines that registration of the applicant is inconsistent 
with the public interest. Registration under this subsection 
shall not be required for the distribution of a drug product 
that is exempted under section 102(39)(A)(iv). In determining 
the public interest for the purposes of this subsection, the 
Attorney General shall consider--
         (1) maintenance by the applicant of effective controls 
        against diversion of listed chemicals into other than 
        legitimate channels;

           *       *       *       *       *       *       *

         (5) such other factors as are relevant to and 
        consistent with the public health and safety.
    (i)(1) For purposes of this Act and any regulations to 
implement this Act, alleviating pain or discomfort in the usual 
course of professional practice is a legitimate medical purpose 
for the dispensing, distributing, or administering of a 
controlled substance that is consistent with public health and 
safety, even if the use of such a substance may increase the 
risk of death. Nothing in this section authorizes intentionally 
dispensing, distributing, or administering a controlled 
substance for the purpose of causing death or assisting another 
person in causing death.
    (2)(A) Notwithstanding any other provision of this Act, in 
determining whether a registration is consistent with the 
public interest under this Act, the Attorney General shall give 
no force and effect to State law authorizing or permitting 
assisted suicide or euthanasia.
    (B) Paragraph (2) applies only to conduct occurring after 
the date of enactment of this subsection.
    (3) Nothing in this subsection shall be construed to alter 
the roles of the Federal and State governments in regulating 
the practice of medicine. Regardless of whether the Attorney 
General determines pursuant to this section that the 
registration of a practitioner is inconsistent with the public 
interest, it remains solely within the discretion of State 
authorities to determine whether action should be taken with 
respect to the State professional license of the practitioner 
or State prescribing privileges.
    (4) Nothing in the Pain Relief Promotion Act of 2000 
(including the amendments made by such Act) shall be 
construed--
          (A) to modify the Federal requirements that a 
        controlled substance be dispensed only for a legitimate 
        medical purpose pursuant to paragraph (1); or
          (B) to provide the Attorney General with the 
        authority to issue national standards for pain 
        management and palliative care clinical practice, 
        research, or quality;
except that the Attorney General may take such other actions as 
may be necessary to enforce this Act.

           denial, revocation, or suspension of registration

    Sec. 304. [824] (a) A registration pursuant to section 303 
to manufacture, distribute, or dispense a controlled substance 
or a list I chemical may be suspended or revoked by the 
Attorney General upon a finding that the registrant--

           *       *       *       *       *       *       *

    [(c) Before] (c) Procedures.--
          (1) Order to show cause._Before taking action 
        pursuant to this section, or pursuant to a denial of 
        registration under section 303, the Attorney General 
        shall serve upon the applicant or registrant an order 
        to show cause why registration should not be denied, 
        revoked, or suspended. The order to show cause shall 
        contain a statement of the basis thereof and shall call 
        upon the applicant or registrant to appear before the 
        Attorney General at a time and place stated in the 
        order, but in no event less than thirty days after the 
        date of receipt of the order. Proceedings to deny, 
        revoke, or suspend shall be conducted pursuant to this 
        section in accordance with subchapter II of chapter 5 
        of title 5 of the United States Code. Such proceedings 
        shall be independent of, and not in lieu of, criminal 
        prosecution or other proceedings under this title or 
        any other law of the United States.
          (2) Burden of proof.--At any proceeding under 
        paragraph (1), where the order to show cause is based 
        on the alleged intentions of the applicant or 
        registrant to cause or assist in causing death, and the 
        practitioner claims a defense under paragraph (1) of 
        section 303(i), the Attorney General shall have the 
        burden of proving, by clear and convincing evidence, 
        that the practitioner's intent was to dispense, 
        distribute, or administer a controlled substance for 
        the purpose of causing death or assisting another 
        person in causing death. In meeting such burden, it 
        shall not be sufficient to prove that the applicant or 
        registrant knew that the use of controlled substance 
        may increase the risk of death.

           *       *       *       *       *       *       *


           PART E--ADMINISTRATIVE AND ENFORCEMENT PROVISIONS

           *       *       *       *       *       *       *



        education and research programs of the attorney general

    Sec. 502. [872] (a) The Attorney General is authorized to 
carry out educational and research programs directly related to 
enforcement of the laws under his jurisdiction concerning drugs 
or other substances which are or may be subject to control 
under this title. Such programs may include--
          (1) educational and training programs on drug abuse 
        and controlled substances law enforcement for local, 
        State, and Federal personnel;

           *       *       *       *       *       *       *

          (5) studies or special projects to develop more 
        effective methods to prevent diversion of controlled 
        substances into the illegal channels; [and]
          (6) studies or special projects to develop 
        information necessary to carry out his functions under 
        section 201 of this title[.]; and
          (7) educational and training programs for Federal, 
        State, and local personnel, incorporating 
        recommendations, subject to the provisions of 
        subsections (e) and (f) of section 902 of the Public 
        Health Service Act, by the Secretary of Health and 
        Human Services, on the means by which investigation and 
        enforcement actions by law enforcement personnel may 
        better accommodate the necessary and legitimate by of 
        controlled substances in pain management and palliative 
        care.
Nothing in this subsection shall be construed to alter the 
roles of the Federal and State governments in regulating the 
practice of medicine.

           *       *       *       *       *       *       *


                       PUBLIC HEALTH SERVICE ACT

           *       *       *       *       *       *       *



                TITLE VII--HEALTH PROFESSIONS EDUCATION

           *       *       *       *       *       *       *


          PART D--INTERDISCIPLINARY, COMMUNITY-BASED LINKAGES

           *       *       *       *       *       *       *



SEC. 753. [294C] EDUCATION AND TRAINING RELATING TO GERIATRICS.

    (a) Geriatric Education Centers.--
          (1) In general.--The Secretary shall award grants or 
        contracts under this section to entities described in 
        paragraphs (1), (3), or (4) of section 799B, and 
        section 853(2), for the establishment or operation of 
        geriatric education centers.

           *       *       *       *       *       *       *

    (c) Geriatric Facility Fellowships.--
          (1) Establishment of program.--The Secretary shall 
        establish a program to provide Geriatric Academic 
        Career Awards to eligible individuals to promote the 
        career development of such individuals as academic 
        geriatricians.

           *       *       *       *       *       *       *

          (5) Service requirement.--An individual who receives 
        an Award under this subsection shall provide training 
        in clinical geriatrics, including the training of 
        interdisciplinary teams of health care professionals. 
        The provision of such training shall constitute at 
        least 75 percent of the obligations of such individual 
        under the Award.

SEC. 754. PROGRAM FOR EDUCATION AND TRAINING IN PAIN MANAGEMENT AND 
                    PALLIATIVE CARE.

    (a) In General.--The Secretary, in consultation with the 
Director of the Agency for Healthcare Research and Quality, may 
award grants cooperative agreements, and contracts to health 
professions schools, hospices, and other public and private 
entities for the development and implementation of programs to 
provide education and training to health care professionals in 
pain management and palliative care.
    (b) Priority.--In making awards under subsection (a), the 
Secretary shall give priority to awards for the implementation 
of programs under such subsection.
    (c) Certain Topics.--An award may be made under subsection 
(a) only if the applicant for the award agrees that the program 
to be carried out with the award will include information and 
education on--
          (1) means for diagnosing and alleviating pain and 
        other distressing signs and symptoms of patients, 
        especially terminally ill patients, including the 
        medically appropriate use of controlled substances;
          (2) applicable laws on controlled substances, 
        including laws permitting health care professionals to 
        dispense or administer controlled substances as needed 
        to relieve pain even in cases where such efforts may 
        unintentionally increase the risk of death; and
          (3) recent findings, developments, and improvements 
        in the provision of pain management and palliative 
        care.
    (d) Program Sites.--Education and training under subsection 
(a) may be provided at or through health professions schools, 
residency training programs and other graduate programs in the 
health professions, entities that provide continuing medical 
education, hospices, and such other programs or sites as the 
Secretary determines to be appropriate.
    (e) Evaluation of Programs.--The Secretary shall (directly 
or through grants or contracts) provide for the evaluation of 
programs implemented under subsection (a) in order to determine 
the effect of such programs on knowledge and practice regarding 
pain management and palliative care.
    (f) Peer Review Groups.--In carrying out section 799(f) 
with respect to this section, the Secretary shall ensure that 
the membership of each peer review group involved includes 
individuals with expertise and experience in pain management 
and palliative care for the population of patients whose needs 
are to be served by the program.
    (g) Definition.--In this section, the term ``pain 
management and palliative care'' means--
          (1) the active, total care of patients whose disease 
        or medical condition is not responsive to curative 
        treatment or whose prognosis is limited due to 
        progressive, far-advanced disease; and
          (2) the evaluation, diagnosis, treatment, and 
        management of primary and secondary pain, whether 
        acute, chronic, persistent, intractable, or associated 
        with the end of life;
the purpose of which is to diagnose and alleviate pain and 
other distressing signs and symptoms and to enhance the quality 
of life, not to hasten or postpone death.

SEC. [754] 755. [294D] QUENTIN N. BURDICK PROGRAM FOR RURAL 
                    INTERDISCIPLINARY TRAINING.

    (a) Grants.--The Secretary may make grants or contracts 
under this section to help entities fund authorized activities 
under an application approved under subsection (c).

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SEC. [755] 756. [294E] ALLIED HEALTH AND OTHER DISCIPLINES.

    (a) In General.--The Secretary may make grants or contracts 
under this section to help entities fund activities of the type 
described in subsection (b).

           *       *       *       *       *       *       *


SEC. [756] 757. [294F] ADVISORY COMMITTEE ON INTERDISCIPLINARY, 
                    COMMUNITY-BASED LINKAGES.

    (a) Establishment.--The Secretary shall establish an 
advisory committee to be known as the Advisory Committee on 
Interdisciplinary, Community-Based Linkages (in this section 
referred to as the ``Advisory Committee'').

           *       *       *       *       *       *       *


SEC. [757] 758. [294G] AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There are authorized to be appropriated to 
carry out this part, $55,600,000 for fiscal year 1998, and such 
sums as may be necessary for each of the fiscal years 1999 
through 2002.
    (b) Allocation.--
          (1) In general.--Of the amounts appropriated under 
        subsection (a) for a fiscal year, the Secretary shall 
        make available--
                  (A) not less than $28,587,000 for awards of 
                grants and contracts under section 751;

           *       *       *       *       *       *       *

                  (C) not less than $22,631,000 for awards of 
                grants and contracts under [sections 753, 754, 
                and 755] sections 753, 754, 755, and 756.

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              HEALTHCARE RESEARCH AND QUALITY ACT OF 1999

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          TITLE IX--AGENCY FOR HEALTHCARE RESEARCH AND QUALITY

                PART A--ESTABLISHMENT AND GENERAL DUTIES


SEC. 901. MISSION AND DUTIES.

    (a) In General.--There is established within the Public 
Health Service an agency to be known as the Agency for 
Healthcare Research and Quality, which shall be headed by a 
director appointed by the Secretary. The Secretary shall carry 
out this title acting through the Director.

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SEC. 902. GENERAL AUTHORITIES.

    (a) In General.--In carrying out section 901(b), the 
Director shall conduct and support research, evaluations, and 
training, support demonstration projects, research networks, 
and multidisciplinary centers, provide technical assistance, 
and disseminate information on health care and on systems for 
the delivery of such care, including activities with respect 
to--

           *       *       *       *       *       *       *

    (g) Annual Report.--Beginning with fiscal year 2003, the 
Director shall annually submit to the Congress a report 
regarding prevailing disparities in health care delivery is it 
relates to racial factors and socioeconomic factors in priority 
populations.

SEC. 903. PROGRAM FOR PAIN MANAGEMENT AND PALLIATIVE CARE RESEARCH AND 
                    QUALITY.

    (a) In General.--Subject to subsections (e) and (f) of 
section 902, the Director shall carry out a program to 
accomplish the following:
          (1) Promote and advance scientific understanding of 
        pain management and palliative care.
          (2) Collect and disseminate protocols and evidence-
        based practices regarding pain management and 
        palliative care, with priority given to pain management 
        for terminally ill patients, and make such information 
        available to public and private health care programs 
        and providers, health professions schools, and 
        hospices, and to the general public.
    (b) Definition.--In this section, the term ``pain 
management and palliative care'' means--
          (1) the active, total care of patients whose disease 
        or medical condition is not responsive to curative 
        treatment or whose prognosis is limited due to 
        progressive, far-advanced disease; and
          (2) the evaluation, diagnosis, treatment, and 
        management of primary and secondary pain, whether 
        acute, chronic, persistent, intractable, or associated 
        with the end of life;
the purpose of which is to diagnose and alleviate pain and 
other distressing signs and symptoms and to enhance the quality 
of life, not to hasten or postpone death.

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