Pain (27 page)

For small-government conservatives (who had long decried government's heavy-handed involvement in the doctor-patient relationship and who championed individual freedom and states' rights), the Oregon law challenged their commitments to weak federal government. For four months in 1998 (from June through September), antiabortion Republican representative Henry Hyde and his colleague in the Senate, Don Nickles, built a legislative case against Oregon's law. The two introduced the Lethal Drug Abuse Prevention Act that took direct aim at Oregon by seeking to use federal power to limit doctors' ability to prescribe. The bill would strengthen federal law so that it clearly prohibited physicians in Oregon (or any state) from dispensing or distributing a controlled substance for the purpose of causing, or assisting in causing, the suicide, or euthanasia, of any individual.

Every political observer could see the proposed act for what it was—an attack on Oregon motivated by those who believed that religion should be more, not less, vociferous in the protection for life. Swayed by this powerful view in the party, conservatives in Congress championed the notion that federal powers must be used whenever Christian religious norms were threatened. As one right-to-life group said to its members in a mailing, “The Lethal Drug Abuse Prevention Act of 1998 … would reverse the outrageous decision of Attorney General Reno that
federally controlled
drugs can be used to assist suicide and euthanasia in states like Oregon where the practice has been legalized. This is our chance to help stop euthanasia before it becomes imbedded in American medicine and
culture.” California Democratic representative Pete Stark, in contrast, responded with a plea for small government: “If we've learned anything from the managed care debate, it is that the American public wants medical decisions made by doctors and their patients, not health plan or government bureaucrats … We are here because the Christian right is pushing this issue as yet another part of their wish list.”
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There was, of course, deep political irony in this moment—for the pain debate (and its proximate connections to other hot-button issues such as abortion, fetal pain, and the right to life for the Religious Right) had completely flipped the party's long-standing views on states' rights and federal power.

As Hyde and Nickles led the charge for the heavy exercise of federal power aimed at overturning Oregon's Death with Dignity Act, the AMA—traditionally aligned with Republicans and averse to government intervention into medical practice—was forced again to choose sides. Ultimately, they opposed the 1998 act as an unwarranted intervention in medical practice. By the end of the year, this bill was dead, with no clear majority in Congress willing to support it. Yet, the Right did not relent. The next year, another attack on Oregon's liberal relief law would rise from the ashes of the Hyde-Nickles defeat.

In early 1999 (a year that saw Republicans boldly impeach and try President Clinton in the House and Senate), middle-of-the-road legislators answered the Hyde-Nickles pain bill with their own pain legislation. Oregon's own Senator Ron Wyden and Representative Darlene Hooley, Democrats both, introduced the Conquering of Pain Act of 1999 into the U.S. Senate and House as a rejoinder to the Religious Right's proposal. Their bill sought to amend the Public Health Service Act to respond to another pain problem—the ongoing public health crisis of undertreated pain.

That same June, Nickles and Hyde answered with another effort from the right, offering a repackaging of their previous bill—now craftily entitled the Pain Relief Promotion Act. In co-opting the language of relief that Democrats Wyden and Hooley had embraced in their own bill and modifying their goals, they hoped to win the support of the AMA, which they did. The new Hyde-Nickles bill sought to amend the Controlled Substances Act so as to authorize the DEA to determine and regulate such standards as “legitimate medical purpose” and to examine a physician's “intent” when prescribing pain medicines (opioids). In its language at
least, the legislation sought to seize the middle ground, aiming both to promote pain management and palliative care in the name of compassion while also empowering the DEA to block all efforts at the state level to legalize physician-assisted suicide. As a spokesperson for the pro-life activities of the Conference of Catholic Bishops told the Hyde committee, “It has certainly never been true since 1984, when the Controlled Substances Act was amended by Congress, that this Federal act slavishly follows what States may view as a practitioner's ability to handle federally regulated drugs.”
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The legislators' intent was clear: to use the federal powers of the DEA to make Oregon's Death with Dignity legislation unworkable. The bill passed the House in a 271-156 vote but, like Wyden and Hooley's bill, it went no further in the Senate.

The Clinton White House and many states opposed the Hyde-Nickles bill, seeing tragic irony that a bill named for promoting compassionate pain relief actually endorsed heavy-handed federal intrusion into medical practice, overruled state policy makers, and threatened to limit access to pain relief nationwide. Arguing against the bill, Democrats turned old Republican states' rights arguments to their own advantage. The Pain Relief Promotion Act also drew opposition from many state medical associations; they parted company with the national AMA, which lent its tentative support to the legislation despite the group's professed allegiance to small government and the inviolate doctor-patient relationship. Even physicians in states like North Carolina, long sympathetic to the states' rights appeal, voiced concern about the Hyde-Nickles bill. The Texas Medical Association (in the state where Stratton Hill had first won protection for doctors and sufferers) opposed it too, concerned that its own state policies would be threatened by federal powers. As Texas's libertarian-leaning Republican representative Ron Paul concluded in opposing the bill, “I am strongly pro-life … But I believe the approach here is a legislative slippery slope. What we are doing is applying this same principle of
Roe v. Wade
by nationalizing law and, therefore, doing the wrong thing … If we can come here in the Congress and decide that the Oregon law is bad, what says we cannot go to Texas and get rid of the Texas law that protects life and prohibits euthanasia[?]”
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Critical coverage of the Hyde-Nickles bill in the press and the medical literature soon followed, portraying the legislation as a vast overreach, a federal power grab by religious zealots, and a veiled attack on
people's ability to control their own pain. The accusation would become, in many ways, the theme for Republican congressional politics in the mid-1990s. The
Journal of the American Medical Association
published a critical article labeling the Pain Relief Promotion Acts of 1999 a serious threat to palliative care. The
Washington Post
editorial page called it a “bad bill on dying.” Other criticisms followed, with some support—for example from the
American Medical News
. Doctors testified before congressional committees and sent letters, both pro and con, highlighting that the profession no longer spoke with one voice—that of the AMA.
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The tense situation was precisely what David Joranson had warned would happen when pain specialists, already working in a politically, morally, and scientifically contentious field, invited legislators for help with reform. The outcome of the marriage was difficult to predict and impossible to control.

Who had the right to judge pain? Who should define the terms of relief? These remained simultaneously clinical, political, and legal questions—the terms of the debate shifting with the political winds in D.C., Oregon, Florida, Texas, and elsewhere. Oregon's governor, John Kitzhaber, labeled Congress “medical meddlers” for dictating to the people of Oregon. Oregon senator Ron Wyden stood up for his state's right to choose, waging a successful filibuster against the Hyde-Nickles bill—even though Wyden had voted twice (as a private citizen) in Oregon against the PAS measure. The congressional battle—mobilizing and fracturing voters on the left and the religious right—continued right through the tumultuous 2000 election year, pitting Vice President Al Gore against Texas governor George W. Bush. Faced with such professional skepticism and public ridicule about the party's claims of compassion (and ultimately with Nickles outmaneuvered by Wyden), the “pain relief” bill died a long slow death in the Senate.
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Despite the political ironies, legal defeats, and internal contradictions in its position, the conservative attempt to impose a new pain standard on state and medical policy still would not relent. With Bush's election, the Right sensed another opening. Into 2001, with the Republicans poised to control Congress and the White House, the Religious Right tried again to legislate pain and end-of-life care—swinging between political grandstanding and serious reform. In addition to its ceaseless attempts to pass some version of the Pain Relief Promotion Act, another
interventionist moment arrived with the case of Terri Schiavo in Florida. From the heights of the Senate and the House, Republicans took up the cause of the Florida woman declared to be brain dead. She was languishing in a persistent vegetative state. Her husband had decided to withdraw life support, but her parents and right-to-life activists in Florida and around the nation rallied to defend her—holding on to whatever slim evidence of brain activity they could find. At one point, Senate majority leader Bill Frist, himself a physician, stood on the floor to claim that Terri was indeed alive. Much of the discussion revolved around the question, does Terri Schiavo feel pain? In the eyes of medical colleagues and much of the public, Frist (and the entire Republican caucus) had crossed a line. He now stood accused by his medical colleagues of doing what no physician should ever do—making a diagnosis while standing a great distance from the patient, having never personally investigated the case. Moreover, such conservatives now embraced and extended a long-standing liberal concern for the pain of others to such an extent that they stood accused not only of exaggerating the pain of others but also of inventing pains that did not actually exist. The Republican claim that it was liberals who believed in large and obtrusive government would be hard to sustain in this environment.

Oregon, however, remained a galling concern. Bush's attorney general, John Ashcroft, a former senator and a devout Christian conservative from Missouri, now used the powers of the Department of Justice to target the state—issuing an interpretive rule in late 2001 stating that the federal Controlled Substance Act prevented the use of the drugs Oregon had allowed with its Death with Dignity law. Ashcroft was effectively insisting that the Justice Department was well within its powers (those granted by the Controlled Substances Act) to decide how physicians should use any such substance—from a Schedule 5 cough suppressant like codeine to Schedule 1 drugs like marijuana and LSD and every type of drug in between. It would take years, and several steps through the federal courts, before the Supreme Court would rule on this bold claim to federal power. In its 2006 decision on
Gonzales v. Oregon
, the Supreme Court—in what one observer saw as “a classic states' rights ruling”—rejected Ashcroft's overreaching attempt to tell the states what kind of compassion they could display.
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This would be the right's final attack on Oregon. As it had in
Glucksberg
, the Supreme Court declined to establish
a nationwide constitutional right to die, but it did uphold the state's right to create the means for a physician to assist in a dignified death.

FIGURE 4.2.
Protesters outside the U.S. Supreme Court, awaiting its ruling on the constitutionality of Oregon's Death with Dignity Act in 2005.

Photo by Charles Dharapak. Image courtesy of the Associated Press.

When these vexed questions of pain relief arrived yet again at the U.S. Supreme Court, the nine justices were ruling on far more than pain; they were deciding fundamental legal, moral, political, and philosophical questions that had long been refracted through the question of pain, compassion, and relief. In taking up
Gonzalez v. Oregon
, the court considered yet again whether Americans had a fundamental right to pain relief, whether the Constitution granted citizens a right to die when their anguish proved too much, whether doctors had the capacity to judge such
matters and to administer a calming, lethal dose of medicine, whether federal laws superseded state law on these questions, and whether these questions of pain and relief were within the scope of issues articulated in the U.S. Constitution or the Controlled Substances Act. Again, the court would rule in Oregon's favor—declaring against the attorney general's overreaching interpretation of the controlled substances statute. In this ruling, the court—and particularly the “swing justice” Sandra Day O'Connor—would strive for the center between the political Left and Right, seeking to articulate a policy on the unsteady middle ground.