Update 014: Volume 12, Number 3 (July-October 1998)

Measure to legalize assisted suicide in Michigan on November ballot

On 7/20/98, despite challenges filed by assisted-suicide opponents, Michigan’s Board of State Canvassers voted 4-0 to place Merian’s Friends’ assisted-suicide initiative on the state’s 11/3/98 ballot, saying that the group had submitted the required number of valid voter signatures. Merian’s Friends’, named for 1993 Kevorkian victim Merian Frederick, needed to garner only 247,000 valid signatures to make Michigan the fourth state to put assisted suicide up for a vote of the people. Voters in Washington State rejected a euthanasia/assisted-suicide measure in 1991, as did voters in California in 1992. Only Oregon voters opted to legalize the practice. The Michigan measure, like Oregon’s, would make it legal for physicians to intentionally prescribe lethal drugs to end certain patients’ lives. [Detroit Free Press, 7/21/98; see also Update, 4-7/98:1]

A war of words

As was the case in the campaigns waged in the three other states, Michigan’s assisted-suicide advocates chose their initiative language very carefully, hoping to obscure the reality of what they were proposing. Merian’s Friends titled their measure “Terminally Ill Patient’s Right to End Unbearable Pain or Suffering,” and wanted the first line under the title on the official ballot to read in part that the patient would have the right “to end unbearable pain or suffering through self-administration of medication to hasten death.” But opponents of the initiative, now officially titled Proposal B, submitted an alternative ballot title which was far clearer in meaning: “A legislative initiative to allow the prescription of lethal drugs to terminally ill persons for the purpose of committing suicide.”

Ultimately, after each side argued its case, a compromise was approved by election officials. The ballot title voters will see is, “Initiated legislation to legalize the prescription of a lethal dose of medication to terminally ill, competent, informed adults in order to commit suicide.” And the first line of the description will read in part that a patient with less than 6 months to live can “obtain a lethal dose of medication to end his or her life.”[Ballot Language for Proposal B, Michigan Dept. of State, Bureau of Elections]
Reportedly, members of Merian’s Friends were not at all pleased with the final wording, especially the use of the words “suicide” and “lethal dose” in place of their more ambiguous terms. As one Detroit News editorial questioned:

“Why is the pro-assisted suicide group so skittish about the words “lethal” and “suicide”? The final ballot language describes exactly what Merian’s Friends wants. Merian’s Friends, on the other hand, sought to cloud the nature of its proposal in gassy euphemisms like ‘hasten death’ instead of using short, precise words like ‘suicide.’ Usually, when people in politics don’t want to use plain English to describe what they are doing, they either want to hide its full implications or they have a bad conscience. Regardless of where the final ballot language originated, it is clearer than Merian’s Friends wanted it to be. That should tell voters something about the proposal — something bad.” ["Word Games," Editorial, Detroit News, 8/28/98]

The campaign

That was the same conclusion reached by the more than forty organizations comprising Citizens for Compassionate Care, the umbrella group working to defeat Proposal B. Included in this broadly based coalition are MI State Medical Society, MI Disability Rights Coalition, MI Health & Hospital Assn., Republican State Party, Assemblies of God, Not Dead Yet, MI Hospice Organization, Right to Life of MI, MI Assn. of Suicidology; Health Care Assn. of MI, MI Handicapper Caucus, MI Catholic Conference, MI Osteopathic Assn., Physician Resource Council, Church of the Nazarene, United Methodist Church, Cooley Law School, and MI Assn. of Nonpublic Schools, to name a few.

Kicking off the opposition’s campaign, Michigan Medical Society President Dr. Cathy Blight told reporters, “If this many organizations can have this many reasons for opposing it, it clearly must be bad legislation.”

State Senator William Van Regenmorter called it “the most dangerous proposal to be on the Michigan ballot ever.” Van Regenmorter was instrumental earlier this year in getting a ban against assisted suicide passed by the legislature. That new law — which county prosecutors had said was needed to stop Kevorkian — took effect on September 1, 1998, but would be overturned if Proposal B passes in November. [Detroit News, 9/15/98]

A closer look at Proposal B

According to Merian’s Friends, though, Proposal B is the best way to stop Dr. Death. “Most of the people he has helped would not have qualified under our proposal,” said Merian’s Friends’ chairman Ed Pierce, a retired doctor and former state senator. “If people are serious about wanting to stop Dr. Kevorkian, then they should support Merian’s Friends,” he added. Referring to Proposal B, Pierce said, “It’s limited and conservative.” [Detroit Free Press, 9/2/98]

It is also extremely long — 12 legal-size pages of very small, tightly spaced, and difficult to read print — raising the question whether voters will actually tackle the tedious job of reading the measure. More than likely not, making it essential that the claims made by Merian’s Friends and its supporters be examined closely.

Pierce’s claim that Proposal B would “stop Dr. Kevorkian” is blatantly false. Buried in the proposal is a short section which IAETF executive director Rita Marker calls “The Kevorkian Loophole.”

While Section 5689(1) would make it “a felony punishable by imprisonment for a term of years up to life” for an “unlicensed physician,” like Kevorkian, to assist in a suicide, the very next paragraph gives Kevorkian, his associates, and his lawyers a loophole through which an entire fleet of rusty, old Volkswagen vans could be driven. Section 5689(2) states that “once medication had been prescribed” by a licensed physician, “Subsection (1) does not apply to a non-physician health care provider, to an employee of a health facility, or to a patient’s family member or friend” who aids the patient in ending his or her life. In other words, Kevorkian’s assistant, Dr. Georges Reding (a licensed physician), could write the prescriptions for the drugs to use in Kevorkian’s infamous “suicide machine,” and Kevorkian or his associate Neal Nicol could be the “friend” and do the rest, without fear of prosecution.

According to former Oakland County prosecutor Richard Thompson, a longtime Kevorkian foe, Proposal B is “nothing more than a menu for ‘the perfect murder.’” In his analysis of Proposal B, entitled “The Trojan Horse of Merian’s Friends,” Thompson wrote, “Under the guise of protecting us from Kevorkian’s antics, they [Merian’s Friends], in fact, remove most of the safeguards against abuse already in place.”

For example, Oakland County’s medical examiner often found, after investigating the deaths and performing autopsies, that the assisted suicide victims Kevorkian and his lawyers claimed had terminal, acute, and painful illnesses, were actually not terminally ill. In fact, that was the case in the majority of deaths. And in at least two of the Oakland County deaths, the victims had nothing physically wrong with them. Yet, under Proposal B, county medical examiners would be stripped of their authority to investigate assisted-suicide deaths, and doctors would not be required to report these deaths to the medical examiner’s office. “Thus,” explained Thompson, “the determination of a physician who assists in killing his patient, that the patient was terminally ill and had only 6 month left to live, can never be contradicted by the scientific evidence available to a medical examiner, and routinely used in the medical profession. Nor will other circumstances, such as the use of drugs which may have dulled the patient’s ability to make a rational decision, be discovered.”

Furthermore, according to Thompson, Proposal B would actually promote abuse and fosters deception by requiring physicians to lie on official death certificates. Proposal B mandates that “… the death of a patient who ends his or her life after complying with this part shall be classified for legal purposes as having been caused by the patient’s terminal illness” and “shall not be considered a suicide or an intentional death….” [Proposal B, Sec. 5686(1) & (2)] So, instead of listing the cause of death as an assisted suicide death by prescription, the doctor would have to write in the patient’s underlying illness, which in reality was not the immediate cause of death. “All of this,” Thompson added, “has the effect of making it more difficult to detect and prevent the abuses which many rightfully fear will accompany the legalization of physician-assisted suicide.”

This openness to abuse is prevalent throughout Proposal B. For example, the measure protects doctors from legal liability, even to the point of establishing that a “determination made by an attending physician”— that a patient was eligible for a lethal drug prescription — would create a “rebuttable presumption that the determination is correct.” [Sec. 5683(1), emphasis added] Given the fact that the county medical examiner would be barred by Proposal B from investigating the death and from performing an autopsy, there would be no way to know whether the attending physician was correct or not in determining that the patient had a terminal condition with less than six months to live.

Further, the proposal would protect assisted-suicide doctors by limiting those who could challenge the doctor’s determination to only the patient’s spouse, parent, adult sibling, adult child, or “significant other,” defined as one who has had a “monogamous-type” sexual relationship with the patient for at least one year. [Sec. 5683(2), Sec. 5672(S)] Proposal B, then, would prohibit social workers, neighbors, nurses, other doctors, and those in law enforcement from legally challenging the attending physician, even on behalf of patients with no living relatives or friends. Similarly, it would deny a concerned, adult grandchild (who, for example, had been raised by the patient) or, conversely, a grandparent (who had reared the patient in the absence of parents) the right to challenge the doctor’s determination.

Like Oregon’s new assisted-suicide law, Proposal B gives the erroneous impression that there would be adequate state oversight of the practice of assisted suicide to ensure that abuses do not occur. In Proposal B that “oversight” takes the form of a governor appointed committee of 14 doctors and 3 “members of the general public,” all of whom “shall not be opposed to complying” with the measure. [Sec. 5685(1) & (2)] As Thompson observed in his analysis, “By eliminating from the Oversight Committee those who are against physician-assisted suicide, they have effectively put the fox in charge of the chicken coop.”

The proposal requires that this Oversight Committee meet just twice a year, with the rest of the time spent on reviewing only a “random sample of not less than 25%” of all assisted-suicide deaths in the state. Even then, only two committee members would actually review those sample cases and “present their findings to the entire committee.” [Sec. 5685(7)] The entire “oversight” process occurs, of course, after patients have died, with up to 75% of the deaths never even reviewed. And, by design, the public would never be privy to the workings of the committee or its determinations:

“All proceedings, minutes, conclusions, and actions of the Oversight Committee are confidential, are not public records, are not open to inspection, and are not subject to the Open Meetings Act… or the Freedom of Information Act….” [Sec. 5685(9)]

The only information the public would receive is an annual, statistical summary devoid of any “individual identifiers of patients or physicians.” [Sec. 5685(9)] As is now the case in Oregon (see p. 1), if Proposal B were to pass in Michigan, assisted suicide would be simply private killing, cloaked in secrecy under the guise of confidentiality, so that the public would be kept ignorant and ultimately forced to look the other way.

Shedding Light on Michigan’s Proposal B

“B” permits out-of-state residents to go to Michigan for drugs to commit suicide.

A person who gives an affidavit to a doctor, claiming to be related to someone in Michigan by blood or marriage is considered a “resident” for the purpose of getting suicide drugs. The only penalty for filing a false affidavit would be against the out-of-stater (who would be dead or may have left the state with the drugs). [§§5672(A); 5673(Q); 5689(7)]

“B” permits establishment of assisted-suicide clinics.

Assisted suicide may be the primary, but not the “exclusive,” procedure at a clinic. As long as any other procedure (i.e., drug screening, blood testing, etc.) is provided—even rarely—a clinic which specializes in assisted suicide may be established. [§5676(3)]

“B” does not require that patients be competent when lethal drugs are taken.

“B” requires competence, voluntariness, an informed decision, etc. at the time the lethal drugs are prescribed. [§§5673(C),(H),(W); 5674-5676(1),(2); 5677(1); 5679(1),(2)] It has no similar requirements for the time when the prescription is “self-administered.” At the time of “self-administration” (i.e., when eating food laced with drugs or when pushing a lever to start the flow of poison into an intravenous line), the patient need not understand that the food or intravenous liquids are lethal.

“B” requires falsification of death certificates.

Proposal B requires that the death certificate of a person who dies from assisted suicide be falsified to list a “terminal illness” as the cause of death. [§§2844(1); 5686(1)]

“B” permits assisted suicide for individuals who are depressed or mentally ill.

A patient who is clinically depressed or has a diagnosed mental disorder is qualified to receive drugs to commit suicide as long as the request for the drugs is not a result of a “distortion in the patient’s judgment.” [§5676(2)(C)(i)]

“B” permits Jack Kevorkian to carry out assisted suicide legally.

Once a licensed physician has written the lethal prescription, a “friend” (who could be an unlicensed physician like Kevorkian) can pick up the drugs, chemicals, etc., deliver them and provide “support” (aid) when they are taken. [§§5679(2)(F); 5689(2)]

“B” establishes a secret, politically appointed, tax-funded oversight committee, made up of assisted-suicide advocates.

Oversight committee members (who must not be opposed to assisted suicide) will serve as consultants in developing tax-funded materials to let people know how to obtain lethal drugs. [§§5685(1)(A-C),(2); 5682] Oversight committee members will review a sample of reported assisted suicide cases and determine whether they comply with the law. Materials related to oversight committee actions and deliberations will not be open for inspection and will not be subject to the Open Meetings Act or the Freedom of Information Act. [§5685(7),(8),(9)]

“B” gives HMOs and insurance programs the opportunity to approve prescriptions for suicide to cut costs.

In Oregon (the only state which has a law permitting assisted suicide), the state Medicaid program pays for lethal prescriptions for poor residents under the category of “comfort care,” and a spokesperson for Blue Cross and Blue Shield said assisted suicide “…would be no different than any other covered prescription.” ["Oregon will cover assisted suicide," Oregonian, 2/27/98; "State Could Cover Assisted Suicide," Statesman Journal, 12/6/94]

“B” has no requirement for family notification.

Proposal B does not require that family members be notified when a loved one has requested or received drugs to commit suicide.

“B” prevents court challenges related to assisted suicide by those who may be closest to the patient.

Proposal B would not allow an adult grandchild to bring a court challenge to protect a grandparent, nor would it permit a designated health care proxy to intervene — even if there is evidence that the law is being violated or that the patient is not capable or is being encouraged to commit suicide. Further, it prevents court challenges by anyone (neighbor, friend, counselor) to protect an individual who has no known relatives or live-in partner. [§ 5683(2)]

“B” forces doctors to undergo training in performing assisted suicide.

Proposal B mandates virtually all physicians to undergo “education in the theory and practice” of prescribing lethal drugs as a condition for medical license renewal. [§5687]

Kevorkian lawyer makes a run for governor

Geoffrey Fieger, Jack Kevorkian’s mouthy advocate and lead attorney, is currently fighting for his political life in Michigan.

Fieger stunned the Democratic Party faithful on 8/4/98 by winning the primary and the right to carry the party banner in the governor’s race against incumbent GOP Gov. John Engler. Since that time, Fieger has had to woo his own party members and leadership as much as the state’s voters. And it hasn’t been easy.

Even finding a running mate proved difficult, if not embarrassing. Early on, each person to whom Fieger publicly offered the job declined. He even tried to sign on former Republican National Committeewoman Ronna Romney, who also declined. Engler’s press secretary, John Truscott, took advantage of Fieger’s predicament, saying, “It’s like asking for a date for the prom over the school’s public address system.” [Detroit News, 8/24/98]

Finally, State Representative Jim Agee of Muskegon accepted the job as running mate. According to Fieger, the more politically savvy and experienced Agee could “guide me through shark-infested waters.” [Detroit Free Press, 8/29/98] But Fieger also knew that Agee had his own solid following. Formerly a teacher, high school principal, and district superintendent, Agee had proven to be a close ally of the Michigan Education Association (MEA) in the state legislature. By bringing Agee on board, Fieger was able to get the MEA’s endorsement for governor. [Detroit News, 8/29/98] He also garnered the endorsement of the United Auto Workers Union (UAW), which issued a press release stating that Fieger and Agee were “progressive candidates who are right on working family issues such as education….” [AP, 9/13/98]

But despite Agee’s political acumen, Fieger has repeatedly put his proverbial foot in his rather loud mouth—like the time he announced plans to slash the state’s sales tax, a cut which would have resulted in schools losing $2.3 billion or $1,400 per student. Agee had to proclaim publicly that he could not back Fieger’s proposed tax cut, adding, “That’s something we (he and Fieger) need to talk about.” “There will be issues during the campaign we don’t agree on,” he added. [Detroit News, 9/3/98]

Another member of his party’s ticket, Jennifer Granholm, the Democratic candidate for attorney general, also had to publicly disagree with Fieger. This time it was over his plan to release 7,000 drug offenders from prison and place them in boot camps or other programs. Granholm told the press, “I am absolutely opposed to that. I have spent too many years putting drug dealers in jail to see them released.” [Detroit News, 9/16/98]

Then there was the time Fieger had to backtrack on his proposal to repeal a 4-cent gas tax hike earmarked for road repairs. Fieger changed his mind after a coalition of farm and business groups called a press conference denouncing his plan as being “crazy” and “irresponsible.” According to a spokesman from the Road Builders Association, “Geoffrey Fieger doesn’t know his asphalt from a hole in the ground.” [Detroit News, 9/22/98]

To add insult to injury, the party big wigs and most of those running for other offices have tried to distance themselves from the brash newcomer. The Detroit News reported, “At least eight well-known Democrats—and possibly many more—are fleeing Fieger in hopes of saving their political skins.” When Vice President Al Gore went to Michigan to campaign for his party’s candidates, he never once mentioned Fieger’s name at any public event, and, while they both met privately, absolutely no photos were taken. [Detroit News, 9/24/98; Washington Post, 9/24/98]

And the polls have not been favorable to Fieger since the primary. Experienced pollster Steve Mitchell said, “Never have I seen anyone with such a low rating. He’s off the charts—plowing new ground in unpopularity.” A recent newspaper poll showed Engler ahead by 61% to 24%, with 15% undecided or noncommittal. [Detroit News, 9/27/98]

It remains to be seen if a last minute Fieger campaign blitz will affect the outcome on November 3rd. But one thing is for sure: if Fieger loses, it will be an unassisted political suicide.

Kevorkian to go on trial, again

Jack Kevorkian and his sidekick, Dr. Georges Reding, are scheduled to go on trial, this time for resisting arrest and obstructing a police officer. The charges stem from a scuffle with police which occurred on 5/7/98 when the deadly duo dropped off the body of 26-year-old Matt Johnson, a quadriplegic, at Beaumont Hospital in Royal Oak, MI.

Johnson’s tragic death took a back seat with the media, who focused instead on Kevorkian’s theatrics after his and Reding’s arrests. True to form at the arraignment, Kevorkian slouched in a wheelchair, refusing to answer questions and threatening to go on a hunger strike if convicted of the misdemeanor charge, which carries no more than a 90-day jail term. Jim Marcikowki, the deputy city attorney trying the case, countered with, “I hope we give him the opportunity to go on his hunger strike.” [Oakland Press, 5/9/98; Detroit News, 10/5/98]

But when the trial date arrived (10/5/98) and backup lawyer Michael Schwartz went to the hospital with chest pains, Fieger (who gave up Kevorkian to campaign) threatened to fire the third-string lawyer if he followed the judge’s order to proceed with the case. Unmoved, the judge still refused to postpone the trial until Schwartz was feeling better, so Kevorkian fired the third stringer himself, forcing the postponement. According to Royal Oak’s city attorney, “They’re doing whatever they can to put this case off for political reasons. They know a conviction will hurt Fieger in the election.” [Detroit Free Press, 10/8/98; Detroit News, 10/8/98]

Oregon issues sketchy report on first deaths

Almost ten months after the state’s permissive assisted-suicide law went into effect, Oregon’s Health Division issued its report on the first ten patients known to receive prescriptions from their doctors for lethal drugs. The information contained in the report was very general in nature.

Of the ten patients, eight actually ingested the drugs and died, while two ended up dying naturally of their illnesses. Five were men, five were women, with the overall median age being 71. Nine had cancer; one had a heart condition. For those who had ingested the deadly drugs, the average time it took to die was 40 minutes. In one case, however, the dying process took seven hours. There was a total of nine physicians attending the ten patients. One doctor assisted in the deaths of two of the patients. [The Oregonian, 8/19/98:A1]

Pleased with the state’s report, Barbara Coombs Lee, executive director of the assisted-suicide advocacy group Compassion in Dying and co-author of the new law, told the press, “This report clearly showed that the fears of our opponents were unfounded and designed to scare Oregonians. There can be no doubt now that the law is working as intended.” [AP, 8/18/98]

But—as mandated by the assisted-suicide law under the guise of patient and doctor confidentiality—the state’s report provides little data upon which to judge whether the law is working as well as its proponents have claimed. “The numbers don’t say much of anything because the whole assisted suicide regime is bathed in secrecy,” explained Wesley J. Smith, IAETF’s legal consultant. “If patients suffer prolonged deaths [after taking the medication], we’re never going to hear about them.” [American Medical News, 9/7/98:9]

Dr. Gregory Hamilton, head of Physicians for Compassionate Care, agreed. “All [the report] tells us is that sick people are being killed instead of being offered treatment and hope,” he said. Furthermore, the information gathered by the state does nothing to protect patients because it is dependent on “what the doctors involved chose to report, and there is no punishment or fine for doctors who do not report,” Hamilton explained. [Statesman Journal, 8/19/98:1A]

State Health Division spokesperson, medical epidemiologist Dr. Katrina Hedberg, admitted that, under the law’s provisions, there is no possible way to know if assisted-suicide deaths go unreported by doctors. In fact, according to Hedberg, the Health Division has no regulatory power or resources to enforce compliance on the part of doctors. Even Dr. Peter Rasmussen, a staunch assisted-suicide advocate and the only Oregon doctor to admit to aiding “at least one” of the first deaths, has conceded that the state’s report probably reflects only a “selected sample” of all the assisted-suicide deaths. [American Medical News, 9/7/98:10]

Federal judge reluctantly dismisses suicide law case

U.S. District Judge Michael Hogan reluctantly denied a motion to revive the constitutional challenge to Oregon’s assisted-suicide law in Lee v. Oregon. In 1995, Hogan had ruled that the law was unconstitutional because it lacked adequate safeguards and discriminated against the terminally ill. His decision was later overturned by the 9th Circuit Court of Appeals, which ruled that the nonsuicidal plaintiff (a woman with muscular dystrophy) lacked standing to challenge the law since it posed no immediate threat to her. Opponents of the new law tried to revive the case by asking Hogan to grant standing to new plaintiffs based on a discriminatory stigmatic injury they suffer under the law. Hogan rejected the motion, saying the 9th Circuit gave him no choice. He also made it clear that he did not agree with the higher court’s ruling:

“Although I am bound by the 9th Circuit’s decision in this case, I find it troubling because it may well render [the assisted-suicide law] incapable of judicial review… Had the voters enacted a measure that permitted members of a certain race, gender, religion or age group to avail themselves of physician-assisted suicide, would outraged members of such classes lack standing to challenge the legislation on the ground they had no intention of committing suicide?” [Oregonian, 9/23/98; AP, 9/23/98]

Congressional bills to ban lethal prescriptions spark debate

House and Senate bills, which would amend the federal Controlled Substance Act (CSA) to explicitly ban lethal prescriptions of controlled substances, have been the subject of debate in the waning weeks of the current Congressional session. At issue are House (H.R.4006) and Senate (S.2151) versions of the “Lethal Drug Abuse Prevention Act of 1998,” which prohibit the intentional dispensing and distribution of federally controlled drugs “with a purpose of causing or assisting in causing, the suicide or euthanasia of any individual….” [H.R.4006, Sec.2(b)(4)] Physicians who violate the proposed amended CSA could lose their licenses to prescribe regulated drugs.

The bills also explicitly protect, for the first time in federal law, the dispensation, distribution, and administration of federally controlled substances for the purpose of palliative care in dosages necessary to relieve pain and discomfort, even if death becomes an unintended side-effect of the drugs’ usage. [Sec.2(b)(4)] The measures stipulate that a “Medical Advisory Board on Pain Relief,” comprised of pain management specialists and clinical experts, be established to further protect physicians who legitimately use controlled drugs for palliation. The Board, at the request of the physician, would review a case in question and issue findings regarding the appropriateness of the prescribed medication. [Sec. 2(c)(3)]

Both the House version, sponsored by Rep. Henry Hyde (R-Ill.), and the Senate version, as introduced by Sen. Don Nickles (R-Okla.) and amended by Sen. Orrin Hatch (R-Utah), have passed each chamber’s Judiciary Committee. However, they have been stalled before floor votes could be taken, largely due to opposition from groups like the AMA as well as the impeachment proceedings against President Bill Clinton keeping Congress busy.

AMA spokesman Dr. Thomas Reardon has argued that the bills will cause doctors to do less to control pain. “When you use the power of the federal government to second-guess physicians’ behavior, you instill fear,” he said, “and cause them to limit the pain relief they give their patients….” [Boston Globe, 10/7/98] But, according to Dr. Herbert Hendin, psychiatric professor at NY Medical College, “The AMA is generally behaving like a union in being against anything that could restrict or punish any of its members.” [Newsday, 9/30/98]

Excerpts from House Judiciary Subcommittee Testimony
July 14, 1998

In favor of H.R. 4006

“Some of the AMA leadership are uncomfortable at supporting government restriction of doctors’ privileges to prescribe controlled substances even in response to a practice that the AMA condemns. This seems to be a case where public interest must prevail over the understandable but nevertheless parochial interests of some in the profession to be free of outside regulation. It seems to me that it is Congress that must be a wise champion of society’s interests while protective of…groups that will be the most immediate victims if assisted suicide becomes accepted medical practice.”
Herbert Hendin, M.D.
Medical Director, American Foundation for Suicide Prevention

“I speak in strong support of this legislation, both as a Member of Congress and as a practicing physician…. To establish, in even one state, a policy under which the medically vulnerable may be directly killed cheapens life and degrades the medical profession throughout our culture. There are some evils which, perhaps, can be tolerated as long as they are confined to certain localities, but there are others than cannot be allowed to exist at all without poisoning an entire society. Slavery was one such evil; euthanasia is another.”
Rep. Tom A. Coburn, M.D.
House of Representatives; Second District, Oklahoma

“I’m here today to speak in favor of the ‘Lethal Drug Abuse and Prevention Act of 1998.’ I have had a chance to review the content and purpose of the legislation and, in my opinion, feel that it would not hinder the efforts of any healthcare worker who is trying to provide appropriate pain control to patients who are terminally ill.”
Douglas J. Pisano, P.Ph., Ph.D.
Associate Professor of Pharmacy Admin.; Massachusetts College of Pharmacy & Allied Health Sciences

“Two primary arguments are being made in opposition to Congressman Hyde’s bill, arguments that the federal Controlled Substances Act should be disregarded to make way for the implementation of the Oregon assisted suicide statute: (1) State’s rights and the will of the Oregon voters, and (2) The bill’s alleged chilling effect on doctors. With all due respect to the will of the Oregon voters, since when does our country put discrimination up to majority vote?… The Oregon assisted suicide law legalizes the ultimate form of discrimination. It legalizes intentional killing based on the health status of the victim…. We people with disabilities demand the equal protection of the law. How many more of our minority group must die wrongfully, how many more murders of people with disabilities will go unpunished, because the euthanasia movement is mistakenly seen as a progressive social cause?”
Diane Coleman, J.D.
Founder and President, Not Dead Yet

In opposition to H.R. 4006

“The creation of a new expert review panel within the Dept. of Justice does not overcome physicians’ objection to this unprecedented intrusion of the federal government into the practice of medicine. In fact, it increases our concerns…. The extra review board within the Justice Dept. is both redundant and unnecessary, and would be a direct usurpation of legitimate state authority by the federal government.”
Thomas R. Reardon, M.D.
Chairman, Board of Trustees; American Medical Association

“Fundamentally, [H.R. 4006], though it has good intentions, will wind up being about neither drug abuse nor assisted suicide. H.R. 4006, will create additional regulatory barriers for health care practitioners. It will duplicate and intrude upon State responsibilities in our federalist system of government, and, most important, it will further diminish the already poor quality of pain management for dying patients.”
Calvin Knowlton, R.Ph., Ph.D.
American Pharmaceutical Association.

“Whether intended or not, H.R. 4006, through its amendment of the Controlled Substances Act, ‘displaces the states as the primary regulators of the medical profession’ and supercedes ‘a state’s determination [of] what constitutes legitimate medical practice.’ Furthermore, H.R. 4006 achieves its policy objective — of prohibiting states, through their constitutional processes, from permitting physician-assisted suicide — by indirection. It does not say to the American people, ‘Suicide at the end of life, assisted or otherwise, is not legally condoned in this country!’ Rather, H.R. 4006 establishes a less-than-benign process of intimidation, threat or significant professional risk to practicing physicians attempting to alleviate the pain and suffering of terminally-ill patients…. Don’t use the artifice of an amendment to the Controlled Substances Act to establish a precedent-setting intervention by the Federal government into the practice of medicine. Don’t intimidate and put at risk physicians when your true objective is altering the choices available to the terminally-ill patients.”
John A. Kitzhaber, M.D.
Governor, State of Oregon

Excerpts from Senate Judiciary Committee Testimony July 31, 1998

In favor of S. 2151

“It is imperative that this law be interpreted correctly and utilized, not as a weapon against legitimate palliative medicine, but only to ferret out the abuses which it specifies…. Nothing in this bill will change what I do daily in my work as a hospice physician. This bill will in no way deter me from my commitment to my patients, their families, and to the professionals who consult me and utilize my services. I want to assure all health care professionals who hear or read my testimony that they have nothing to fear from this bill for doing the right thing for the right reasons. However, the right thing requires that we all arm ourselves with the appropriate knowledge, skill, attitudes, and commitment to provide the very best palliative care has to offer our patients. Let this bill become not an end unto itself, but the beginning of a national commitment to caring for our citizens in the final stages of their lives. Let the legacy of this Congress be that it heard the cries of those in pain and those who are dying and answered their cries. Let the response be: Not one of you must perish at your own hands or at the hands of your physician simply because we failed to understand your physical and mental anguish.”
Walter R. Hunter, M.D.
Medical Director, South Oakland County Hospice of Michigan

“This bill clarifies important ethical and legal distinctions between the appropriate medical use of therapeutic drugs for pain control in palliative care and the lethal misuse of such drugs to accomplish physician-assisted suicide. In addition, this bill explicitly encourages appropriate drug use for chronic pain control in terminal illness. The difference between medical use and lethal misuse is at the heart and core of the intent of the Controlled Substances Act, which I am required to teach to medical students.”
Ralph R. Miech, M.D., Ph.D.
Associate Professor, Brown University School of Medicine

“Why should the unsubstantiated fears of physicians receive so much weight? Why shouldn’t they be more afraid of medical malpractice claims for denying pain relief? And why should their unsubstantiated fears be elevated above the very well founded fears of people with disabilities? …Not Dead Yet calls upon all members of this Congress to support the Lethal Drug Abuse Prevention Act, to affirm the principles of non-discrimination which this nation has struggled so long to establish, [and] to turn back the steamroller of the euthanasia movement before it is too late.”
Gayle Hafner, Esq.
Not Dead Yet

In opposition to S. 2151

“First, this bill will not deter physician-assisted suicide in Oregon. Proponents can use other drugs or non-drug agents (Jack Kevorkian has used carbon monoxide, which is not regulated as a drug at all) or can even accept loss of DEA registration, since the state is not likely to impose any other penalty. Second, this bill will risk substantial reversal of the recent improvements in the relief of pain and other symptoms. In short, patients will suffer…. Appallingly inadequate care at the end of life is a serious public health problem, affecting hundreds of thousands of persons every year. There seems to be no good reason to worsen this situation by asking the DEA to engage in additional police investigations. This is especially true since the bill before you will not even succeed at reducing the actual rate of physician-assisted suicide.”
Joanne Lynn, M.D.
President, Americans for Better Care of the Dying

“Mr. Chairman, if S. 2151 became law, it would either intrude on the privacy of grieving families and set them against the loved one’s physician, or it would call thousands of physicians to account in order to detect a tiny minority. Thus, the law would either be virtually unenforceable or cause a great deal of harm for questionable benefit…. Rather than moving quickly in this complex and controversial area, the College recommends that Congress authorize a study to examine the myriad of end-of-life care issues.”
Harold C. Sox, Jr., M.D.
President, American College of Physicians

“As you know, Mr. Chairman, the President is opposed to assisted suicide and any Federal support for it. As such, he is open to working with you and other interested Members of Congress on this complex but extremely important issue. Having said this, the Administration believes that S. 2151 represents a flawed approach to the sensitive area of Federal regulation of medicine. We are fully cognizant of the general authority of the Drug Enforcement Administration (DEA) to regulate physicians’ activities that facilitate the abuse or diversion of controlled substances. We are concerned, however, that the insertion of the DEA into the role of overseer of the practice of medicine in the unique circumstances of suffering, terminally ill patients would inevitably divert agency attention away from the core mission of strictly controlling Schedule I drugs and preventing the abuse, diversion of and trafficking in all scheduled drugs.”
Joseph Onek
Principal Deputy Associate Attorney General, U.S. Dept. of Justice

RESEARCH IN REVIEW

Doctors who induce patients’ deaths often do not follow proposed guidelines

A recent study, published in the Journal of the American Medical Association (JAMA), found that two-thirds of U.S. cancer specialists, who admitted to participating in euthanasia or physician-assisted suicide (PAS), did not follow proposed patient safeguards. Those safety guidelines, which right-to-die advocates usually offer as the best way to ensure patient autonomy, include: (1) the patient must initiate and repeat the request to die, (2) the doctor must determine that the patient is experiencing physical pain or suffering, and (3) the doctor consults with another physician or psychiatrist.

The study found that, of the 355 oncologists surveyed, 56 (15.8%) indicated they had engaged in euthanasia or PAS. However, after in-depth interviews were conducted, only 38 (10.7%) described involvement in cases which truly fit the definitions of euthanasia or PAS. Researchers found that doctors “adhered to the 3 main safeguards” in only 13 cases (34.2%). According to lead author Ezekiel J. Emanuel, M.D., Ph.D., from Boston’s Dana-Farber Cancer Institute, “Most worrisome is that in 15.3% of cases, the patients were not involved in the decision, but families wanted the patients’ lives ended. This lack of involvement even occurred in cases where the patients were conscious and could have participated in the decision.” “Again,” Emanuel added, “these data warn that safeguards meant to ensure patient autonomy could be violated in a significant minority of cases making nonvoluntary or involuntary euthanasia a concomitant of permitting voluntary euthanasia or PAS.”

The study also found that in 15% of PAS attempts the patients failed to die. Researchers concluded that “how to handle these failed PAS attempts is problematic.” “Legalizing PAS but not euthanasia,” Emanuel wrote, “could create serious difficulties in addressing the failed PAS attempt.” [Emanuel et al., "The Practice of Euthanasia and Physician-Assisted Suicide in the United States," JAMA, 8/12/98:507-513]

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Attitudes of ALS patients and caregivers toward assisted suicide

Between 1995 and 1997, 100 patients with ALS (Lou Gehrig’s disease) from Oregon and Washington State, along with 91 of their family caregivers, were surveyed to determine their attitudes toward assisted suicide. Fifty-six patients (56%) indicated that they would consider assisted suicide; 44 of the 56 patients said that they agreed with the statement, “If physician-assisted suicide were legal, I would request a lethal prescription from a physician.” In 73% of the instances, caregivers and patients shared the same attitude toward assisted suicide. Eleven percent of the patients were considered “clinically depressed,” 91% felt that their illness caused stress within the family, and 65% saw themselves as burdens on their families. Patients who said they would consider assisted suicide had higher scores for hopelessness than those who would not. [Ganzini et al., "Attitudes of Patients with Amyotrophic Lateral Sclerosis & Their Caregivers Toward Assisted Suicide," NEJM, 10/1/98:967-973]

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8-step protocol proposed for evaluating patients who request PAS

Linda L. Emanuel, M.D., Ph.D., vice president of the AMA’s Institute for Ethics, has proposed an 8-step clinical protocol physicians can use for evaluating and responding to patients who request PAS. The steps, which should be followed with “compassion and respect,” do not include the option of PAS, but instead apply the “widely endorsed principles of a patient’s right to be free of unwanted intervention and the health professional’s obligation to provide comfort to the suffering patient.” The proposed steps are:

(1) an evaluation of the patient for depression or other psychiatric conditions which could cause “disordered thought,”
(2) an evaluation of the patient’s “decision-making competence,”
(3) a discussion with the patient about his or her goals for care,
(4) evaluation and response to the patient’s “physical, mental, social, and spiritual suffering,”
(5) discussion with the patient about the full range of treatment and care options,
(6) the consultation by the attending physician with other professional colleagues,
(7) assurance that care plans chosen by the patient are being followed, including removal of unwanted treatment and the provision of adequate pain and symptom relief, and
(8) a discussion with the patient explaining why PAS is to be avoided and why it is not compatible with the “principled nature” of the care protocol.

According to Emanuel, “Since family members incline toward PAS more often than patients do, it is also essential to know how to approach family requests for it.” Essentially,” she wrote, “the steps are the same, and they need to be followed with the same compassion and respect.” [L.L. Emanuel, "Facing Requests for Physician-Assisted Suicide," JAMA, 8/19/98:643-647]

NEWS NOTES

Hugh Finn, 44, died on 10/9/98, eight days after his feeding tube was removed at the request of his wife, Michele. He had been at the center of a legal battle ever since his wife, who was also his legal guardian, decided his fate three and half years after a car accident ruptured his aorta, cutting off oxygen to his brain. The accident left him permanently brain damaged, unable to eat or communicate. Virginia law allows for the withholding of food and fluids from patients who are in a persistent vegetative state (PVS). But the court battle revealed that there was a difference of opinion as to whether Finn was truly PVS.
Mrs. Finn claimed that her husband, a former TV news anchorman in Louisville, KY, had once told her and a friend that he would never want to live in his current condition. Her decision to starve and dehydrate him to death divided the family, causing Finn’s brother to go to court to try to stop her. The judge, however, ruled in the wife’s favor.

But, when the State Department of Medical Assistance Services sent a nurse to examine Finn, she reported that he said “Hi” to her when she greeted him, and he later used his right hand to smooth his hair. This prompted Joseph McGuire, lawyer for the Finn family, to comment, “It’s in- convenient that Hugh said ‘Hi,’ but he did. If he comes out of this .001 percent of the time, he’s not in a persistent vegetative state, he’s a human being.” [Prince William Journal, 9/22/98; AP 9/23/98]

The nurse’s experience rang true to some members of the Finn’s extended family. Mrs. Finn’s own mother and sister reportedly stopped talking to her in protest over her decision to end Finn’s life. Mary Keely, Mrs. Finn’s mother, said that her son-in-law thanked her for a Christmas present last year and that he cried last July when she asked him if he was upset by what his wife was doing. “You can’t euthanize the man,” Keely said. “Where does it go if we allow this to happen?” [AP, 9/21/98] Hugh’s father, Tom Finn, told a local reporter that, when he visited his son after the tube was removed, Hugh was ‘moaning and groaning something awful.” [Prince William Journal, 10/8/98]

But in the end, despite family testimony, despite organized demonstrations, and despite a last minute court appeal filed by Virginia’s governor, Jim Gilmore, the trial judge’s ruling was ultimately upheld: Michele Finn had the right to order her husband’s death. [AP, 10/9/98]

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Mary Martin—who, unlike Michele Finn, was unsuccessful in her court battle in 1995 to withhold all food and fluids from her husband, Michael Martin—continues to advocate for the starvation and dehydration of those who are severely disabled.

Last May, Mrs. Martin told those gathered in Philadelphia at the “Families on the Frontier of Dying” conference, “He [Michael] is not PVS. He is conscious, awake….”
Referring to the fact that her husband became brain damaged as a result of a car-train accident, she asked, “Do you know why car insurance rates are so high?” “Because,” she continued, “people like Mike are being forced to stay alive. In his condition now he could probably out live me and our children.

He’s in well enough health, thanks to the feeding tube, he could out live us all. And for what? Because his mother and sister aren’t willing to let him go.”

“He does nothing but smile,” Mrs. Martin explained. “Patients like this can smile and nod their head…. They could be the organ donors who are so desperately needed.” [Transcript, "How Do Families Cope?" Families on the Frontier of Dying, Philadelphia, PA, 5/21/98] (For more information on the Michael Martin case, search, previous issues of the IAETF Update and see the Foods and Fluids page at this web site.)

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The debate over food and fluids has given new meaning to the definition of “terminal illness.” Speaking at the 1998 Hemlock Society Conference, Connie Holden, a nurse-administer of a hospice program in Colorado, explained her involvement with the dehydration deaths of three nonterminally-ill patients. One was an elderly woman who was so physically healthy that she hadn’t seen a doctor in years. Holden described her condition as “the dwindles” (the aging process), and said that the woman had decided to stop eating and drinking so she would die. The woman—not dying, not even ill—was admitted to the hospice so that she could receive any pain medication that may be needed as she starved and dehydrated to death.

When asked how this woman or the other two patients could be considered “terminally ill,” Holden explained, “The definition of terminally ill, of course, is six months or less, and we knew that all three of these patients would die in six months or less if they stopped eating.” Thus, the patients were judged to be terminally ill. [Connie Holden, R.N., tape of "Refusal of Food and Hydration," 10th National Hemlock Conference, 6/7/98 ]

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According to the British Medical Journal, the German Medical Council has issued new practice guidelines for doctors regarding the handling of terminally-ill or dying patients. Those guidelines, which the Council spent a year discussing, have become a very hot political issue in Germany. Members of the Social Democratic and Green parties, along with the German Hospice Foundation, have accused the Council of actively promoting physician-assisted death.

Jörg Hoppe, the Council’s vice president, defended the guidelines by emphasizing that they are based on the principle of patient autonomy, that the patient’s wishes are the determining factor in guideline implementation. However, the guidelines do allow for the withdrawal of intravenous feeding and life-sustaining treatment, even from premature infants and coma or PVS patients who cannot make health care decisions for themselves. Social Democrat health expert Wolfgang Wodarg labeled the guidelines “new German euthanasia.” A representative from the German Hospice Foundation said that the guidelines “turned ill non-dying patients into dying patients.” [British Medical Journal, 10/3/98:904]

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Dr. Philip Nitschke — Australia’s Dr. Death and the one responsible for ending the lives of four patients under the now overturned Northern Territory euthanasia law— is back in the news. He recently announced that he intends to set up a euthanasia clinic in Melbourne to make available to patients information on ways to get illegal drugs to end their lives. While he claimed he would not directly assist patients to end their lives, he also admitted that he planned to do more that just give out legal information about how to die. “I can provide direct advice about how to acquire the diminishing sources of the necessary drugs, including barbiturates, from black market sources,” he explained. Of course, Nitschke said, his new clinic would verify the patient’s condition and provide access to palliative care before giving out euthanasia advice. [The Age, 10/6/98]

But Australian palliative care pioneer Dr. Brian Pollard called Nitschke’s plan “outrageous.” “He has nothing to offer patients but a death fixation,” Pollard said. “He doesn’t even pretend to provide good palliative care.” [The Australian, 10/7/98] Legally, however, it looks like Nitschke and his euthanasia clinic may be on safe ground, at least for now. Victoria Premier Jeff Kennett, a euthanasia advocate, has determined that there would be nothing legally wrong with Nitschke setting up a medical advice clinic. [Herald Sun, 10/7/98]

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Henry Taylor, 69, died on 9/30/98 at Olympia Fields Osteopathic Hospital in Chicago, after being given a lethal injection of potassium chloride and morphine. The doctor, who has admitted deliberately injecting the drugs directly into Taylor’s intravenous tube, has taken a voluntary leave of absence. The Taylor family is in shock over the death. According to their attorney, Taylor’s brother thought “his brother would be OK.” “That’s why they were perplexed by the whole thing.” [Chicago Tribune, 10/9/98]

Taylor’s death is currently being investigated as a homicide. An official from the Cook County Medical Examiner’s office told the press, “The doctor wrote in his records that the patient was dying and was given potassium chloride and morphine to relieve him of his pain and suffering.” An autopsy revealed that Taylor died of potassium chloride intoxication with complications from terminal kidney disease. [Chicago Sun Times, 10/7/98; The Star, 10/8/98]

As yet, no charges have been filed against the doctor, which has outraged the national disability rights group Not Dead Yet (NDY). “This feels like discrimination,” said NDY founder Diane Coleman. “If Taylor had been killed by someone with a gun, the perpetrator would have been arrested and charged immediately,” she added. “Why do authorities drag their feet when physicians do the killing and the victim is old, ill or disabled?” [NDY Press Release, 10/8/98]

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Diane Coleman, NDY founder, has received the prestigious Nugent Award from the National Spinal Cord Injury Association. The award is named after Timothy Nugent, who pioneered disability-related programs at the University of Illinois in the 1950s. In her acceptance speech, Coleman dedicated the award to the memory of 21-year-old Roosevelt Dawson, who had been paralyzed from the neck down by a virus and ended up dying at the hand of Jack Kevorkian. She told those in attendance that Dawson had been hospitalized a year after his illness, and that medical providers had not sought independent living assistance for him, which would have enabled him to return to his life in the community. [NDY Press Release, 8/25/98]