Pain (25 page)

The principle of double effect had dangerous implications for pain professionals, for it fed into PAS opponents' view that the entire field of pain management was a closeted form of Kevorkian-style euthanasia. Opponents now sought to squash any practices even remotely resembling PAS; but others who objected to PAS took another route, realizing that, to undercut the market for Dr. Death's services, they must embrace a more liberal style of pain medicine. In this view, desperate people in pain needed better relief and “safe harbors” for care precisely so that they would not rely on the likes of Kevorkian. Thus did PAS provoke a new round of legislative activity on pain reform, and in the aftermath of Kevorkian's 1996 acquittal, legislators in Michigan “introduced a package
of pain management bills aimed at cutting the market for Dr. Jack Kevorkian's services.” Similarly, in Florida, as the trial was underway, the legislature took up an intractable pain treatment act that specified that “nothing in this section shall be construed to condone, authorize, or approve mercy killing or euthanasia, and no treatment authorized by this section may be used for such purpose.” Florida's IPTA statute was passed in 1995, creating a safe harbor while also cautioning doctors against crossing the line to PAS. The emerging question—now fully engaged in state legislatures and by ethicists, physicians, patients, and the public across the country—was how to comfort the ailing, how to bring peace at the end of life, without allowing doctors to be accomplices to crime.
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With systemic undertreatment of pain now well documented, a medical consensus for reform emerged—but what kind of reform? PAS advocates charged that people in pain were turning to suicide because doctors were so fearful of prosecution for practicing compassionate pain relief. Ironically, PAS opponents also mobilized behind this view, coming to see the value of liberalizing pain relief for people in chronic pain. For his part, Kevorkian was not entirely isolated in pushing the boundaries of acceptable legal pain relief. In December 1996, reviewing the details of the case against Dr. Hurwitz, the television program
60 Minutes
illustrated the continuing paradox of relief—people in intractable pain, with inadequate access to pain medicines, choosing suicide as their better option. The
60 Minutes
exposé featured Hurwitz, Hill, and a video taped by Hurwitz's patient the day before he committed suicide. In the video, the patient clearly laid out his calculations, “explaining that he would rather live with pain medication, but couldn't go on living without it.” Fear that other doctors might follow Kevorkian's or Hurwitz's example pushed palliation to political center stage, turning the legislators' growing fear of Dr. Death to the pain specialist's advantage. But, even with modest legislative attention to improving pain care, most pain specialists could not avoid being tainted by any association with Kevorkian and his pain defense. In the glare of politics, many specialists were pressed to explain and defend themselves. A New York State task force, for example, concluded in 1994 that there was no good reason to rethink the state's ban on physician-assisted suicide, but it also felt compelled to insist that the “effort to characterize pain relief at end of life as euthanasia is mistaken.”
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Kevorkian, meanwhile, did himself and the cause of liberalizing relief no favors. As opponents of the Oregon law successfully pushed a repeal of the Death with Dignity law onto the state ballot and as the courts weighed the limits of PAS in several states, the single-minded Kevorkian pushed PAS to an absurd new level—well beyond his ability to defend his actions on the basis of compassion. In September 1998, he would videotape himself administering a lethal injection himself, rather than allowing the patient to do so—once again daring authorities to charge him. The fact that he administered the medicine himself and recorded it changed the stakes; from the legal perspective, he had strengthened the state's case for a murder charge. Further complicating his defense, his license to practice medicine had been revoked eight years earlier. When he went to trial this time, it would be for second-degree murder, and the rules for such a trial gave him no room to invoke the pain defense. The grandstanding doctor also foolishly chose to represent himself in court. Prohibited by the judge from telling the jury the horrible pain and desperation of his patient (details deemed irrelevant to the murder charge), Kevorkian had dramatically increased the likelihood of being convicted on murder charges. In April 1999, a jury found him guilty and sentenced the pathologist to ten to twenty-five years in prison.

By the late 1990s, it was also clear that the political Left was fracturing on the question of PAS, with disability activists lined up solidly against the practice. As early as the late 1980s, disability scholar Paul Longmore had warned, “I don't think it's far-fetched or paranoid to assume that these same suicide rights advocates will use this law to push for significant expansions. They don't just want it for the terminally ill. They have a very broad agenda.” On the right as well, the politics of pain was fracturing conservatives—with the religious wing of the Right developing an aggressive belief in the role of the federal government in challenging the state's right to determine the character of relief. As one antiabortion advocate noted,
Roe v. Wade
had opened the way to this new travesty: abortion rights “was a precedent for killing people, and its impact has gone far beyond abortion,” said Marie Dietz. “We had warned years ago that euthanasia would be the next step.”
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Thus did the culture wars suggest new alliances around people in pain. With Oregon squarely in their sights, religious conservatives in national government (in Congress and later the White House) would reject their own party's longstanding
skepticism regarding federal power in shaping state social policy on these contentious moral questions of the day.

The PAS debate became to 1990s cultural politics what abortion had been two decades earlier, but where abortion mostly unified right and left against one another, PAS was a more fractious issue within each political party. On this topic, the Religious Right parted company with small government conservatives, and disability rights advocates split from the mainstream Left. For the courts, PAS also became a major test of citizens' constitutional rights, raising new questions similar to the way privacy rights and abortion rights were conjoined.
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As the courts looked closely at PAS, an entirely new legal and constitutional terrain came into view: Was medically induced death a constitutional right? Was it legally acceptable as a corollary to aggressive relief? Did doctors have a moral obligation or a legal duty to relieve pain? If the line between pain relief and euthanasia was unclear medically, could the law draw the distinction any more clearly? And what level of government should make such relief policies—the Congress, state legislatures, the people of Oregon? These were among the major constitutional questions that now spiraled off from the new practices of pain relief.

Because divisions across the states on pain policies were so profound, a crucial issue before the federal courts concerned not only the individual's right to self-relief but also federalism. Could each state chart its own course in such matters, or should national law claim precedence?
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Was there such a thing as a constitutional right to pain relief, akin perhaps to the right to privacy that the liberal Burger court had endorsed in
Roe v. Wade
? What began as trials of a few outlandish doctors soon raised the possibility that pain relief might actually be an American right—and such a question could only be ruled upon in the higher courts.

Beyond Kevorkian in Michigan, liberal-leaning West Coast states were having a profound impact on relief politics. In Washington, Oregon, and California, popular democracy movements pushed these three diverse states to establish new rights in flagrant opposition to the federal
government—particularly with regard to the use of drugs to bring relief. In 1988 the California-based Americans against Human Suffering attempted (but failed) to place a PAS bill on the ballot—the first attempt in the United States to legalize assisted suicide through a referendum. Four years later, in 1992, California advocates succeeded in getting the initiative (Proposition 161) on the ballot. But that November voters rejected it. Oregon advocates then took up the challenge, putting their own death with dignity law before the voters in 1994. It allowed physicians to prescribe, but not to administer, lethal doses of drugs for patients who had less than six months to live, who had been deemed mentally competent, and who chose death voluntarily in front of witnesses. Also on the ballot in 1994 was a gubernatorial race featuring legislator and physician John Kitzhaber—who had helped establish the Oregon Health Plan—as the leading candidate. His election by a 51 percent vote mirrored the outcome on the PAS referendum (also 51 percent). Kitzhaber stepped into office amid a tidal wave of national interest in PAS and the Oregon law. But, with the law's passage came a strong legal backlash as opponents challenged its constitutionality.
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The law's implementation would be rocky and now depended on the federal courts.

The 1994 referendum—standing in direct conflict, for example, with federal laws against the misuse of barbiturates—set up a pitched (and still ongoing) battle between the states and the federal government over the control of drug policy and the limits of pain relief. The Oregon law also put physicians and pain sufferers who followed its guidelines at increased risk of federal prosecution. Appeals by opponents of the referendum put the 1994 law on hold, and in 1997 the people of Oregon were compelled to vote a second time on a new PAS referendum. Only a year earlier, California had continued pushing for state sovereignty in such matters, endorsing the use of medical marijuana and passing Proposition 215 (Compassionate Use Act of 1996) “to ensure that seriously ill Californians have the right to obtain and use marijuana” for a variety of ailments including “cancer …, AIDS, chronic pain …, arthritis, migraine, or any other illness for which marijuana provides relief.” A year later, when the people of Oregon approved the PAS referendum a second time (overcoming the remaining legal obstacles), the law finally took effect. These developments crystallized the tension between the state law and federal law. For the DEA, federal law prohibited physicians from prescribing
controlled drugs for the purposes of suicide; physicians who practiced PAS risked losing their licenses.
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Despite the tensions over enforcement and jurisdiction, Oregon pressed ahead with implementing the law—even as the Supreme Court decided to hear a case on PAS coming out of Washington State.

In these divided states of analgesia, while many Americans were transfixed by Michigan's legal circus and the political drama in Oregon, in Washington a physician named Harold Glucksberg launched a lawsuit that would ultimately bring these considerations over who should control relief before the U.S. Supreme Court. Glucksberg had challenged the state's 1979 ban on PAS quietly, arguing that the law was unconstitutional in relation to the Fourteenth Amendment's due process clause. In 1992 a district court agreed with Glucksberg, finding Washington's ban unconstitutional. In March 1994, the case was argued before the U.S. Court of Appeals, Ninth Circuit. Two years later, the court issued an opinion that saw PAS not as a test of liberal compassion per se but as a problem of liberty and due process. The majority found: “Heated though the debate may be, we must determine whether and how the United States Constitution applies to the controversy before us, a controversy that may touch more people more profoundly than any other issue the courts will face in the foreseeable future.” The Ninth Circuit found in favor of Dr. Glucksberg, swayed by considerations of self-determination and individual liberty. The justices concluded that “a liberty interest exists in the choice of how and when one dies, and that the provision of the Washington statute banning assisted suicide, as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors, violates the Due Process Clause.” This was, in the circuit court's view, not an issue for governments but for individuals to decide. “By permitting the individual to exercise the right to choose we are following the constitutional mandate to take such decisions out of the hands of the government, both state and federal, and to put them where they rightly belong, in the hands of the people.”
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The Circuit court's affirmation of the rights of the people over that of the state was quickly appealed to the U.S. Supreme Court, with the battle lines now drawn between what many saw as moral polarities—liberals embracing compassion and permissiveness toward drugs and the dying on the one hand and religious conservatives' defending of the sanctity
of life on the other. Pain politics was also defined by moral perversity. As the Drug Reform Coalition Network saw it, “the enemies in the battle for pain relief [were also] state medical boards and the Drug Enforcement Administration.” For this advocacy group—fiercely dedicated to liberalizing drug laws—the
Hurwitz
case, the
Kevorkian
cases, the
Glucksberg
case, and many others were examples of the war on drugs run amok. As they saw the situation, caught in the decades-long moral panic around drugs, people in pain were being offered a shocking choice—limited access to pain medicines yet legal recourse to suicide if the laws backed by the PAS movement succeeded. As one of Hurwitz's patients, a prominent attorney, wrote about the drug wars, “The chilling effect this type of action has on the willingness of
any
physician to provide legitimate treatment for persons with chronic pain cannot be overstated.” The irony of PAS from this perspective was that it promised to give patients “the right to unobstructed assisted suicide by the federal courts, but no right to a decent quality of life by any as-yet recognized body of law”
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