Pain (22 page)

To say that there was a conservative position and a liberal position on pain in the Reagan years ignores many complexities; it accepts too easily the political binary developed and used by Reagan so effectively as a political bludgeon. Liberals like Carter had, in fact, initiated the disability reforms that Reagan's administration developed into a large-scale tool of welfare reform. In this effort, pain (particularly the subjective pain of people like Polaski) became a symbol for Reagan of the dependence, the learned helplessness, and the growth of government that conservatives so detested. Reagan had taken Carter's moderate policies and turned them to a new purpose. In the process, the war on abuse and fraud became an all-out war on people claiming to be in pain—precisely as Carter had warned in 1980. The revolution was as much about those in pain as it was about erasing a liberal pain standard that held too much sway in society.

But the effort to impose a conservative pain standard provoked a fierce Congressional backlash, heightened tensions with the courts, and produced the kinds of relentless litigation that conservatives also bemoaned. On the surface, the legal dispute was about the status of “subjective” pain, but, underneath, the stakes surrounding the pain standard were incredibly high. At stake—for those purged—were questions of life, health, and death. For liberal Democrats, the dilemma was about placing limits on the Reagan revolution, maintaining society's commitments to compassion, recognizing the legitimacy of disabled citizens, and assigning moral and economic meaning to their suffering. For Republicans, at issue was the future of the welfare state. For the courts, the political question became who had the power to judge, as a brash executive branch claimed an authority to govern it did not deserve. By the end of the 1980s and into the 1990s, the battle over pain had turned the vexing clinical question of pain sufferers into one of the most divisive and polarizing political issues of the time. For people in pain, their politicization at
the hands of the Reagan revolution was unquestionably one of the most troubling features of conservatism.

Throughout his eight years in office, Reagan railed against the liberal pain standard. Even when he scaled back the harsh rhetoric of his first years in office (embracing compassion in response to the liberal charges of conservatism's heartlessness), he continued to caricature liberal judges and politicians as laughably gullible. Speaking to Republican governors in 1986, he called for “stage two of our revolution” to focus on “setting aside liberal, Democratic governors, fixed by choice and habit alike in their dependence upon Washington.” He insisted that “the proliferation of drugs has been part of a crime epidemic that can be traced to, among other things, liberal judges who are unwilling to get tough with the criminal element in this society.” He defended his Supreme Court nominee, the conservative judge Robert Bork, by attacking liberal judges: “Many years ago, when he was serving on the Court,” the president quipped, the esteemed Judge Cardozo “received a letter from a member of the public, and it read: ‘Dear Judge Cardozo, I read in the newspaper that you are a liberal judge. Will you send me $10, as I'm really very hard up. Sincerely … I don't have the name.”
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Laughter at the caricature filled the room. The liberals, everyone understood, were too quick to feel the pain of others and so easily duped by cries of anguish that they would empty their own pockets—and the public purse as well. The caricature had lost none of its power, but Democrats created their own caricature in response: Bork was an “extreme” conservative. In the end, the Bork nomination failed, but these stark polarities would endure.

Whose pain mattered? In a harbinger of the pain politics to come in the 1990s, the man Reagan nominated to be his new HHS secretary (replacing Heckler in 1985), Otis Bowen, found himself personally embroiled in an emerging debate—the line between pain relief and euthanasia at the end of life. A midwestern physician, middle-of-the-road Republican, and popular former Kansas governor, Bowen carried his own pain baggage. Six years earlier, his wife had been dying of cancer. Bowen had administered the powerful but still-controversial and unapproved painkiller, DMSO, to her in her final days. He insisted that he had done nothing illegal, appealing to compassion toward the dying. At the time of his wife's death, Bowen struck a libertarian pose, asking, “Why can't [a] dying person, with severe pain, have easy prescription access to it?” Even though he
was Reagan's nominee, critics on the religious right accused him of supporting euthanasia and also of being too weak in his stand against abortion. The case reflected how quickly the political stakes of pain and relief could shift. With the Bowen debate, a new kind of issue loomed on the immediate horizon, with the figure of Jack Kevorkian moving pain politics away from fetal pain to the other end of the life course. In the 1990s, anguish in death would push back against pain at the beginning of life as a new issue for a new decade. And here too, as in so many of the American pain debates of the Reagan years, the courts would decide; people in pain, seeking relief, would plead their case before the highest pain judges in the land—the U.S. Supreme Court.
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Stand, I pray thee, upon me, and slay me: for anguish is come upon me.

2. SAMUEL 1:9

W
hen Sherry Miller turned to Michigan pathologist Jack Kevorkian for relief in 1992 she was in severe pain and living a life of horrible desperation. Like the other people who turned to Kevorkian for help, Miller had a well-documented trail of suffering and physical demise. Diagnosed with multiple sclerosis in 1983, her body was deteriorating steadily. By 1989, she used a wheelchair; often, her father carried her. When she first wrote to Kevorkian in 1990, he encouraged her to seek treatment for the disease and to consult a psychiatrist. By 1991, she had decided to commit suicide—a decision supported by her family. A year later, Kevorkian consented to help her by rigging up a “suicide machine” very much like the one that Janet Adkins, a fifty-four-year-old Portland, Oregon, woman suffering from Alzheimer's disease, had used to end her life in 1990.
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For these flagrant acts, Kevorkian found himself castigated by doctors, criticized and mocked by the media as Dr. Death, and charged in legal dramas spanning from 1990 to 1999. The questions at the center of the legal storm were these: Was Kevorkian practicing compassionate pain relief as he alleged, or was he committing murder? And what constitutional rights, if any, would be granted to such acts carried out in the name of pain relief?

Among the people Kevorkian helped to die, all their pains differed. Marjorie Wantz's pain contrasted sharply with Miller's, but she too wrote to Kevorkian for help. Wantz suffered from extreme vaginal pain, for which she had undergone nine or ten surgeries. Unrelieved, she contemplated
suicide. Caregivers raised questions about her mental competence, but these concerns had already been put to rest by a psychological examination. Wantz had gone to clinics in Cleveland and Detroit as well as to the Mayo Clinic where she was told nothing could be done beyond the pain pills, four times as strong as morphine, she was taking. When she first approached Kevorkian for help, he suggested other therapeutic options, even pointing Wantz to hypnosis. The mystery of her condition was that it was not due to any discernible degenerative disease—as Kevorkian quoted one of her doctors, “It would have been better off to be cancerous, at least in six months you might be dead.” For two years, Wantz asked Kevorkian for help in dying, even attempting unsuccessfully once to shoot herself. She wrote, “No doctor can help me anymore. If God won't come to me, I'm going to God. Can't stand it no longer.” For her, the only truly effective form of relief from such anguish would be death.

On October 22, 1991, Sherry Miller and Marjorie Wantz committed suicide, together, in a cabin in Michigan. Of the two of them, only Wantz ended up using Kevorkian's device—Miller's veins were, by this point, too weak. Although Kevorkian was not actually present for their deaths, he had openly assisted them in their planning, going so far as to participate in television interviews on their decision beforehand. Later, when he faced state charges over what was becoming known as physician-assisted suicide (PAS), he explained to juries that his aim was not primarily to help Miller die but to relieve her pain. Kevorkian believed that he was on a mission: “my ultimate aim is to make euthanasia a positive experience.” His only crime was to give her the means to carry out that compassionate act of self-relief leading to her death. Hearing his pain defense, jury after jury would acquit him, and a fourth case would be declared a mistrial. Only in 1999, under much different circumstances, when he was not allowed to use the pain defense that served him so well through most of the decade, would Kevorkian be convicted.

The suicide machine Kevorkian had invented was simple enough—it first administered a saline solution, then the push of a button precipitated the injection of pentothal (thiopenthal), which slowly induces coma. Adkins had one minute after pressing that button to change her mind. When she did not, another injection of potassium chloride and a muscle relaxant followed, stopping the heart. Death came six to seven minutes later.
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While controversy flared over the issue of physicians' roles in helping
terminally ill patients end their own lives, the awkward, makeshift setup of Kevorkian's apparatus made it a particularly dangerous flash point for those in the pain field: it was eerily similar to the patient-controlled analgesia devices that pain specialists had championed in the 1980s as empowering patients and putting relief into the hands of sufferers. The major difference between the two was the drugs administered and the finality of Kevorkian's brand of relief; for many critics of PAS, Kevorkian and his machine embodied the excesses of liberal pain relief and a moral problem at the heart of liberalism more generally (the inability to distinguish between compassion and murder).

The Wantz and Miller cases, along with the earlier Adkins suicide, launched Kevorkian's notoriety, but they also opened a new chapter in the politics of pain in America—moving this new question of pain relief alongside the other disability and pain issues that already occupied legislatures and courts (
chapter 3
). Kevorkian's practice caught legislators off guard. Michigan's existing laws were, in fact, unclear about the legality of what he had done—a fact that compelled the state's political and legal establishment to work furiously on new legislation. As the Michigan legislature moved to ban the practice and as courts weighed the constitutionality of the new state laws passed hastily by legislators, prosecutors charged Kevorkian with a range of violations, including murder. Even while on trial, Kevorkian did not relent. He had assisted in twenty-seven suicides before the trial and would participate in another twenty-eight during the case. More criminal charges followed as the jury trial, which began in 1992, continued through 1996. In the end, Kevorkian was acquitted by a jury swayed by the argument that Wantz, Miller, and Adkins had a right to this kind of relief.

Yet, legal, clinical, and political uncertainties expanded in the wake of these pain controversies. For many physicians, pain relief in terminal illness was routine, but it was also widely known that the medications also lowered blood pressure, reduced respiration, and played a role in hastening death. Kevorkian's controversial work pushed this pain relief work into uncharted legal territory, upsetting both liberal trends in regulated, compassionate care and conservative arguments for restraint with his far-reaching libertarian insistence. The legal implications were sweeping. Was this a “mercy machine,” as Kevorkian's supporters called it, or a weapon to commit premeditated murder, as prosecutors insisted?
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Was
this man providing true relief or merely exploiting the ambiguous line between compassion and suicide? Were these women innocent dupes, as prosecutors alleged, or brave, free-willed people who had suffered long enough? The case carried political implications as well. Turning old political alliances upside down, disability activists recoiled from Kevorkian, arguing that legalizing his actions opened the door to devaluing people with disabilities—seeing them as more easily expendable. Physicians (particularly pain specialists) inevitably were drawn into the swirling legal and moral debate on suffering, the limits of compassion, and their professional relations with the law. As Kevorkian's case was debated and John Bonica, the seventy-seven-year-old father of pain medicine, lay dying at the Mayo Clinic in 1994, a new fractious era in American politics was emerging. Social divides ran deep, beginning with the question of whether the doctor was an accomplice to a crime or a compassionate friend to people in pain.

For this generation of aging Americans—particularly for baby boomers now in their 50s and contending with the realities of advancing years, infirmity, and death—the issue of relief at the end of life migrated to the political center. To be sure, the moral question of pain relief's limits had always existed. Walking a tortuous line in the 1950s, for example, Pope Pius XII had reconfirmed the Catholic Church's endorsement of pain relief for the terminally ill “even if they [these measures] hasten death,” but he had also condemned the practice of outright euthanasia. Decades later, pain relief pushed these moral boundaries again. Publicly practicing deathbed relief on a scale that would never have been imagined before, Kevorkian became a polarizing figure in an era of fractious, morality-based politics.
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How the PAS story would play out had sweeping implications—for individuals, for the state, and for the law.

If the 1980s had seen “fetal pain” emerge as a flash point of right-wing political discourse (driven by religious activism, abortion politics, and “fetal personhood” claims), then the 1990s opened another cultural and political front in the American pain wars. Now, as if in answer to the right, activists on the political left focused on pain at the other end of the life course—death. In language that was galling to the Religious Right, activists on the left spoke of compassion, death with dignity, and the “right to die” free from pain. Gradually it became obvious that judges and the courts would decide on PAS and pain relief not on ideological
grounds but as a constitutional matter of individual liberty. In this battle, established liberal and conservative positions on the use of federal versus state power would be turned on their head. The PAS movement threw American religious conservatives—who had gained a strong hand in the Republican Party and in Congress—on the defensive. In Oregon, for example, a 1994 public referendum that established PAS as state law compelled many in the Republican Party to rethink its long-standing libertarian views on individual freedom and small government, with conservative religious activists (joined by nonpartisan religious figures) turning to the courts to stop the Oregon law.
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It was a deep irony that the states' freedom from federal oversight that Reagan had so championed now drew the ire of Republicans in national government. As pain politics refractured along partisan lines, pulled to polar ends of the life course, people living and coping with day-to-day chronic pain could only watch as their fight for relief was defined by a new set of controversies in the American political landscape. By decade's end, the constitutional right to relief, the doctor's role, and the state's rights to regulate relief would arrive at the U.S. Supreme Court.