Pain (28 page)

How would pain be governed? The question of who was in true pain, whose pain matters most in society, and what should be done for people in pain rippled across the country and merged with the increasingly partisan and morally charged political landscape. This was not entirely new. As previous chapters showed, the path by which pain management moved into the high court had been paved by the litigious climate of the 1980s, by the Reagan-era disability debates, and by muted concerns about fetal pain. But in the 1990s, doctors (some brash, others cautious) courted relief legislation. Stratton Hill had led the way, inviting the Texas legislature to protect doctors who cared aggressively for people in pain. Harold Glucksberg presented another model of how the politics of pain medicine itself turned doctors into political actors, as did John Kitzhaber, who crossed completely from medicine into the Oregon legislature and the governor's office. Where Hill and these others sought legislative support, Jack Kevorkian stood apart—flamboyantly goading lawmakers, judges, and medical boards to rewrite the rules of relief. Meanwhile, the people of Oregon created another lasting pathway to reform built on the notion that majority rule and direct democracy could best manage the people's pain.

As pain politics fractured along multiple lines (not only by party but also by state and region), the search for compromise that Stratton Hill had begun became deeply polarized, and it was left to the courts to try to repair the breach. If liberal compassion was winning victories, it was also producing deep skepticism about excesses of relief. As was true in the contentious Reagan years with the administration's battles against disability-related pain as unworthy of benefits, the courts continued to be the place where these conflicting ideologies of pain and compassionate relief played out. Doctors, empowered to administer relief, could never
truly control this pain debate, but they continued to provide much of the pain theory that supported judgments on relief. In America, the question of who was in pain and what relief they needed had long since become a matter for voters, politicians, lawyers, and judges to decide. In the final analysis, pain was a legal concern, and the high court in the 1990s deferred to the states—allowing a divided state of analgesia to become the law of the land.

Although the courts could settle individual pain battles, including the running dispute between the Bush administration and Oregon, in the state's favor, they had no power to repair the breach in pain politics. As a stage in the history of pain and U.S. political history, the fractured state of analgesia revealed how (from abortion to death with dignity) the cultural politics of the 1990s split and transformed Democrats, but more so Republicans, along ideological lines. The question of Oregon's right to govern its own people's pain (in life and in death) threw the Religious Right into a pitched fervor; a shocking inversion of the party's states' rights position followed. The Right could support states' rights as long as that state's views of people in pain lined up with its own. Attorney General Ashcroft, the Bush administration, and the Republican Congress continued to see the Oregon law as expressing an excessively liberal view of pain and pain relief. For them, end-of-life pains warranted no such relief. The pains that best made policy, in their view, were the pains of the fetus and the pain of Terri Schiavo. Ironically, on this last point, the Religious Right found support from disability rights activists—who had been opponents in the days of Reagan's attack on disability rights.

The debates over PAS and access to pain relief highlighted just how much the Religious Right had come to influence the conservative movement in the late 1980s and into the 1990s. Their dominance was achieved at the expense of moderates, small-government conservatives, and libertarians like Texas representative and physician Ron Paul, who believed, for example, that heroin should be legalized.
⁴⁸
PAS had unsettled religious members of the party—Catholics, evangelical Protestants, and some Jewish leaders—who looked to Washington for a strong response. Meanwhile, the AMA (which traditionally leaned right in its politics and usually fiercely opposed government oversight of health care) responded meekly to the shocking round of government intervention into health care—coming not from liberal officials but from its traditional allies on the right. In court,
the medical group deferred to higher authorities on the question of relief. After years of political and judicial battles and whatever their misgivings about PAS, no doubt some AMA leaders were relieved when the Supreme Court endorsed the principle of double effect, giving doctors latitude in determining where pain relief merged into euthanasia.

Conservatism might have strayed far from its old strictures on activist government, but conservative justices like O'Connor would not follow the Ashcroft Justice Department's reading of pain relief law. Her views on the laboratory of the states echoed principles articulated by Reagan, who had appointed her to the court in the 1980s. If Republicans now endorsed the aggressive use of federal power and limits to state laws on pain relief (all in service of legislation to protect those “in pain”), she could not follow. For Republicans of an earlier generation, this was an assertion of power they once considered to be a quintessentially liberal pathology. As these new problems of pain relief arrived at the high court in the 1990s, the justices well understood that freedom from pain was a complex civic question—encompassing citizens' quests for death with dignity, freedom from chronic pain, self-determination, and constitutional rights of life and liberty.
⁴⁹

In this 1990s politics of pain, here was a final irony: for many people living and coping with chronic pain (people who were neither dying nor yet to be born), the era's stark polarization of the pain debate focusing on “fetal pain” on one hand or “death with dignity” on the other distracted attention from their own struggle. The politics of pain had not only polarized but also warped the landscape of pain care, further complicating their own hopes for relief.
⁵⁰

A good man will seek to take the pain out of things. A foolish man will not even notice it, except in himself …

WILLIAM SAROYAN, “THE HUMAN COMEDY”

T
he revelation in 2003 that conservative provocateur Rush Limbaugh had maintained a secret addiction to the painkiller OxyContin carried a deep political irony. This arch critic of liberalism, social indulgence, and big government's coddling, a man who extended Reagan's ideas and who had wailed against President Clinton's “I feel your pain” rhetoric, had treated his own pain liberally and to excess. Many commentators at the time remarked on Limbaugh's political hypocrisy, casting him as a conservative double standard. Limbaugh had once said about drug users, “Go out and find the ones who are getting away with it, convict them and send them up the river.”
¹
On its face, the Limbaugh episode was a puzzling contradiction. If excessive “bleeding heart” liberal compassion had produced a crisis of dependency and learned helplessness, then what are we to make of the conservative provocateur's long-term addiction to the most famous painkiller of his day? His story conjoins the personal and political in the same way that the saga of many other people in pain had done (Rosie Page, Lorraine Polaski, and so on). Like their travail, his was a testament to the times in which he lived—to the growing gap of relief between the privileged and the poor, and to the post-Reagan years and the world conservative deregulation had created. The surge of painkilling drugs into the market since the 1980s (encouraged by both Reagan-era conservative deregulation and continuing liberalization) had both relieved and damaged society, and by the early years of the new century a new liberal-conservative
consensus began to emerge around the need for market surveillance. Limbaugh was a poster image for these developments; so too was OxyContin.

The late twentieth-century pharmaceutical market expanded by taking advantage of many features of the American political landscape, exploiting both liberal and conservative pain policies. Private industry promised relief in ways conservatives loved, through direct-to-consumer advertising (DTCA) of drugs; to libertarians, drugs promised better access through the rise of Internet pharmacies; and to liberals, lowering the barriers to regulation promised effective remedies for the under-treated.
²
Limbaugh's addiction shed light on the exuberant drug market that regulatory reform had produced; but OxyContin's rise also forced both liberals and conservatives to look closely at the world they had made—a marketplace that claimed to solve Americans' problems far more efficiently and completely than government programs ever could, but one that also had the capacity for great harm. Seen in this light, the Limbaugh case is not a paradoxical story but a coming-to-fruition narrative.

By the turn of the twenty-first century, the forces of liberalized access to relief (through medical marijuana and physician-assisted suicide) and the forces of neoconservative deregulation (weakening FDA oversight of industry) had opened the door to innovation in the pain market. Combined, these forces unleashed a new world of relief symbolized by drugs like Bextra, Vioxx, Celebrex, and OxyContin. OxyContin seemed ideally suited for the era—it was an old drug, identical to the Percodan of the 1950s, but now in a time-release formulation for people in too much of a hurry for repeated medication. It also appealed to cancer physicians wary of opioids in end-of-life care. The drugs promised relief without addiction. But, like other business booms of these decades, the drug bubble was also susceptible to profound busts; and many of the era's new painkillers experienced shattering failures as well as success (measured in pills prescribed, revenues and stock prices, but also in side effects, deaths, and fraud prosecutions).
³
By 2010, few of the players involved in the pain-relief markets—patients, doctors, drug manufacturers, and regulators—had escaped the controversies that defined the OxyContin era or the policing and increased political scrutiny that marked these times. Limbaugh was just one of many casualties.

In the early years of the pain drug boom—a time that coincided with the introduction of DTCA—people like Limbaugh became avid shoppers. This flowering of consumerism was precisely the kind of development that free-market conservatives had long championed, but it also produced new patterns of excessive consumption. In the OxyContin era, market diversion—the illicit resale of prescription drugs—became the new face of addiction. Limbaugh was accused of the crime of “doctor shopping.” Of course, Americans had long shopped for doctors in the medical marketplace. In the 1980s, the term “doctor shopping” referred not to a consumer crime but to a right—the patient's right to shop for medical care in a market increasingly controlled by insurance companies and health management organizations. The criminalization of doctor shopping was thus a new legal development of the late 1980s and 1990s—a response to emerging consumer and industry excesses. By the time Rush Limbaugh turned himself into Florida authorities, “doctor shopping” referred to the now-illegal diversion of prescription drugs into the black market and the process by which patients fraudulently moved from physician to physician to circumvent controls on the quantities of prescriptions available to individual consumers. Ironically, doctor-shopping laws were one of the legal mechanisms developed by state governments to respond to the deregulated market and to excessive relief. The rise of such laws signaled that the age of deregulation and liberalization had run its course, and a new era of government surveillance had arrived—embraced by politicians on the left and right, across the ideological spectrum.

As in times past, the debate over who was the person in pain reflected, converged with, and shaped adjacent political disputes. Was Rush Limbaugh a victim of a drug being investigated as addictive by Congress and the FDA, as his lawyers stressed in court—a misled consumer in need of sympathy and enhanced protection? Or was he a perpetrator of fraud—a criminal who used complaints of pain to find illegal forms of relief? Or was he in true pain, desperately trying to evade the restrictive and fearful cadre of doctors, police, and bureaucrats society had set up to dole out stingy relief? A close analysis suggests that Limbaugh's OxyContin case contained all of these features; but, more important, his case was a parable of pain and relief in the deregulated, probusiness environment
created by both conservatism and liberalism. In finding OxyContin, Limbaugh had encountered a world partially of his own creation—a new American pain dilemma.

FIGURE 5.1.
A 2002 National Household Survey on drug use documenting the sharp upsurge in U.S. consumption of pain relievers.

Reprinted from Pilar Kraman,
Prescription Drug Diversion
(Lexington, KY: Council of State Governments, April 2004).