Prescription Proscription

For doctors and patients who have long decried the needless suffering caused by inadequate pain treatment, the Pain Relief Promotion Act of 1999 seems to represent progress. By a vote of 271 to 156, the House of Representatives has acknowledged that regulatory scrutiny discourages physicians from prescribing the narcotics that are often necessary to control severe pain.

But the bill, which has also been introduced in the Senate, could inadvertently make this problem worse. Among other things, it would amend the Controlled Substances Act to say that "alleviating pain or discomfort in the usual course of professional practice" is a legitimate reason for prescribing a controlled substance, even if the drug "may increase the risk of death."

The emphasis here is misleading, because it is fear of addiction, rather than fear of death, that underlies the government's special concern about opioid painkillers. That concern results in strict regulation, which helps make doctors leery of these drugs–an attitude that critics call "opiophobia."

Worries about hastening death do not play as important a role in opiophobia as the Pain Relief Promotion Act suggests, and the bill itself is apt to magnify them. That's because, in response to an Oregon law authorizing physician-assisted suicide, the bill seeks to ban the use of controlled substances "for the purpose of causing death."

As David Orentlicher, a physician and professor of law, observed in his testimony against the legislation, "the line between acceptable palliative care and unacceptable assisted suicide rests solely on the physician's intent. When intent is the critical issue, physicians must–and will–worry that law enforcement officers will see a criminal intent even when none existed."

Since a physician accused of having the wrong intent could not only lose his federal prescription license but also end up in prison, the bill could make doctors less inclined to treat pain aggressively in patients who are near death–the very opposite of the intended result. "No matter how many words you attempt to write into this Act to define and encourage good pain management and palliative care," Orentlicher noted, "the reality…is that doctors would rather avoid risk, interrogation and investigation at all cost."

Physicians who help terminal patients kill themselves under Oregon's law typically prescribe barbiturates. If they were forced underground by fear of federal prosecution, they might switch to overdoses of opioids, which would make it harder to distinguish them from physicians treating pain.

Nor is it clear that declaring pain treatment a "legitimate medical purpose" will make the Drug Enforcement Administration less likely to interfere with the appropriate use of narcotics. The DEA has long acknowledged the legitimacy of prescribing opioids for intractable pain, but it may still disagree with a doctor about whether his use of narcotics constitutes bona fide treatment.

Charging the DEA with preventing assisted suicide will invite it to become even further involved in the regulation of medical practice, an area traditionally reserved to the states. And if doctors' decisions about how best to treat dying patients can be second-guessed by bureaucrats in Washington, it is hard to imagine what matters are beyond the purview of the federal government.

Yet the ban on doctor-assisted suicide has the backing of many conservatives who claim to believe that Congress should exercise only those powers actually granted by the Constitution. Such erstwhile supporters of federalism have abandoned their principles because they do not like Oregon's law. No doubt their objections are heartfelt, but it will be hard to take them seriously the next time they talk about respecting constitutional limits.

By the same token, it is hard to take the Clinton administration seriously when it complains that the Pain Relief Promotion Act impinges on state authority. This is a surprising concern from an administration that supports federal solutions to everything from rape to overcrowded classrooms.

The president's people say Congress should not override the will of Oregon's voters, who twice approved the state's assisted suicide law. Yet they have no qualms about overriding the will of voters in other states who have approved the medical use of marijuana.

Attorney General Janet Reno says Oregon doctors should not be prosecuted or lose their prescribing privileges for supplying barbiturates to cancer patients seeking to end their lives. Apparently, such threats are reserved for California doctors who recommend marijuana to cancer patients seeking relief from nausea. Perhaps the difference is that the president never joked about barbiturates on MTV.