Amicus Curiae Brief — Gonzales v. Oregon

3 / uy “7 ‘ ~ Uj q

No. 04-623

MA3 ® « 2095

OF THE CLERK

In The 1 OFFIC!

Supreme Court of the Anited States

¢

ALBERTO R. GONZALES, Attorney General, et al.,

Petitioners,

V.

STATE OF OREGON, et al.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

*

BRIEF OF AMICUS CURIAE

AMERICANS UNITED FOR LIFE

IN SUPPORT OF PETITIONERS

¢

NIKOLAS T. NIKAS

(Counsel of Record)

MAILEE R. SMITH

AMERICANS UNITED FOR LIFE

310 South Peoria Street

Suite 300

Chicago, Illinois 606°'7

312/492-7234

Counsel for Amicus Curiae

May 9, 2005

——————————————————————————

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

roots 7

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TABLE OF CONTENTS

I. Physician-Assisted Suicide Is Unnecessary For

The Treatment Of Pain In Terminally-Ill Pa-

A. “Uncontrollable pain” can be completely

B. Reasons for the existence of uncontrolled

pain relate to unwarranted fears, un-

trained health care professionals, and un-

II. Medical Reasons Are Not Motivating Factors

Of Terminally-Ill Patients Seeking Physician-

ii

TABLE OF AUTHORITIES

Page

CASES

Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261

CRIED .ccccescecesssesesssssensncntuiessssssiinetanesinienisiessnanannsnannnnnnnnnnn 1

U.S. v. Moore, 423 (28. 122 (1978) .......cccccscccsovscsssceseveseeees 3

Vacco v. Quill, 521 U.S. 793 (1997) .........ccecceseeseeeeeeeeeeeeees 1

Washington v. Glucksberg, 521 U.S. 702 (1997)....... 1, 5, 16

STATUTE AND ATTORNEY GENERAL INTERPRETIVE RULE

Controlled Substances Act, 21 U.S.C. § 801 et seg. ............ 3

Office of the Attorney General, Dispensing of

Controlled Substances to Assist Suicide, 66 Fed.

Reg. 56,607 (Nov. 9, 2001)............sssssssssserssssersesersessereees 3

OTHER AUTHORITIES

Carla Alexander, Palliative and End-of-Life Care, A

GUIDE TO THE CLINICAL CARE OF WOMEN WITH

HIV (J. Anderson ed., Heath Resources and Ser-

vice Admin., HIV/AIDS Bureau, 2001)................. 8,9, 11

American Academy of Pain Management et al.,

Brief of Amici Curiae in Support of the Patient

Plaintiff-Appellees and in Affirmance of the Dis-

trict Court’s Grant of Summary Judgment to

Appellees, Oregon v. Ashcroft, 368 F.3d 1118 (9th

Cle, SEGRE) Gite. GD-I yD ccccecsccsssenccensnnsecnsnsiiiiamamaasata 17

American Geriatrics Society, Brief as Amicus

Curiae Urging Reversal of the Judgments Below,

Vacco v. Quill, 521 U.S. 793 (1997) ...........cccccceeeees 7,9, 13

ve

TABLE OF AUTHORITIES — Continued

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

I eemseiauintnnnns 17

American Medical Association et al., Brief of Amici

Curiae in Support of Petitioners, Washington v.

Glucksberg, 521 U.S. 702 (1997) .............cccceeeees 14, 18, 19

American Medical Association, Module 1: Pain Man-

agement: Pathophysiology of Pain and Pain Assess-

ment (2003), available at http//www.ama-cmeonline.

American Medical Association, Module 2: Pain

Management: Overview of Management Options

(2003), available at http://www.ama-cmeonline.

ee 7, 8,9, 11

American Medical Association, Module 3: Pain

Management: Barriers to Pain Management and

Pain in Special Populations (2003), available at

http://www.ama-cmeonline.com/ ................. 10, 12, 14, 15

American Medical Association, Module 10: Pain

Management: Overview and Assessment of Cancer

Pain (2003), available at http://www.ama-cmeonline.

Ee 8, 14, 15

American Medical Association, Module 11: Man-

agement of Cancer Pain: Pharmacotherapy

(2003), available at http://)www.ama-cmeonline.

a 7, 8, 11, 12, 13

American Medical Association, Module 12: Man-

agement of Cancer Pain: Other Analgesic Ap-

proaches and End of Life Care (2003), available

at http://www.ama-cmeonline.comy ...............:0000eeeee0e 5,9

iv

TABLE OF AUTHORITIES — Continued

Page

American Medical Association, Report 4 of the

Council on Scientific Affairs: Aspects of Pain

Management in Adults (1995), at http://www.

ama-assn.org/ama/pub/category/13672.html......... passim

J. Andrew Billings, Recent Advances: Palliative

Care, BRITISH MED. J. 2000; 321: 555 .................cccceeeeeeee 7

BLACK’S LAW DICTIONARY (6th ed. 1990) ............cccccceeeeeeees 17

Shannon Brownlee & Joannie M. Schrof, The

Quality of Mercy: Effective Pain Treatments Al-

ready Exist. Why Aren't Doctors Using Them?,

U.S. News & WORLD REPORT, Mar. 17, 1997,

available at http://www.masmith.inspired.net.au/

pain mercy Rta .....000<.secccccosseeseeees Lsitaitenttinindndilinnnns 7,14

Robert A. Burt, Constitutionalizing Physician-

Assisted Suicide: Will Lightning Strike Thrice?,

Bp Ba a ttantesntenererenemeneinntensen 6

Ira Byock, Why Do We Make Dying So Miserable?,

WASHINGTON Post, January 22, 1997, available

at http://www.afsp.org/about/byock.htm ................... 7,13

Richard M. Doerflinger, Conclusion: Shaky Founda-

tions and Slippery Slopes, 35 Duq. L. REv. 523

TT iaictnnsstsseiensesnceieiiinntianieiintaiihatibiiattadaiciasianiatainiitaiaaeaeemenaes 10

Federation of State Medical Boards of the United

States, Inc, Model Policy for the Use of Controlled

Substances for the Treatment of Pain (2004), at

http//www.ama-assn.org/ama/pub/category/11541.

Kathleen M. Foley, Improving Palliative Care for

Cancer: Summary and Recommendations (June

19, 2001), at http://www4.nationalacademies.org/

new.nsf/isbn/s0309075637?OpenDocument .................. 14

PP ree

TABLE OF AUTHORITIES — Continued

Kathleen M. Foley, Transforming the Culture of

Dying, PROJECT ON DEATH IN AMERICA: JANUARY

2001-DECEMBER 2003 REPORT OF ACTIVITIES

(Open Society Institute, 2004) 2.0.0.0... cccceceseeeeeeeeees 6, 16

Phillip D. Good, Advances in Palliative Care Rele-

vant to the Wider Delivery of Healthcare, MED. J.

GO AAIBUMAR AA BOER BTBs BGG nnccccccccccccesccccccccccccscscsccesess 12

HERBERT HENDIN, SEDUCED BY DEATH: DOCTORS,

PATIENTS, AND ASSISTED SUICIDE (1998)...............+. passim

Herbert Hendin, Suicide and the Request for

Assisted Suicide: Meaning and Motivation, 35

Be Bie Bes IED cicartentntnncncnsnntensesnentnnsenssenseasesens 19

Herbert Hendin, The Slippery Slope: The Dutch

Example, 35 Dug. L. REV. 427 (1996) ...........:ccccecceeeees 14

Yale Kamisar, The “Right to Die”: On Drawing (and

Erasing) Lines, 35 Duq. L. REV. 481 (1996). ................ 11

Gara Lamarche, What We Have Learned from The

Project on Death in America, PROJECT ON DEATH

IN AMERICA: JANUARY 2001-DECEMBER 2003 RE-

PORT OF ACTIVITIES (Open Soc’y Inst., 2004) ...............+. 16

Timothy Moynihan, Cancer Pain Treatment: An

Interview with a Mayo Clinic Specialist, October

20, 2003, at http://www.mayoclinic.com/invoke.

CE RRS SSSI Oe 9,16

NEw YORK STATE TASK FORCE ON LIFE AND THE Law,

WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND

EUTHANASIA IN THE MEDICAL CONTEXT (1994) ....... passim

New YORK STATE TASK FORCE ON LIFE AND THE LAw,

WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND

EUTHANASIA IN THE MEDICAL CONTEXT (SUPP. TO

tiene nniinesinininrtninierieemimel 11, 12, 13

vi

TABLE OF AUTHORITIES — Continued

Oregon Dep’t of Human Serv., Sixth Annual Report

on Oregon’s Death with Dignity Act (2004).............

Oregon Dep't of Human Serv., Seventh Annual

Report on Oregon’s Death with Dignity Act

Fie osacsnscscesccetacenencsectesseunsnssstameametnn eumuneene 4,17,

Patient-Respondents’ Brief in Opposition, Ashcroft

Bo I re rcinnnneninencntintitnenstensenssnecinneen

Project on Death in America/Open Society Insti-

tute, Brief of Amicus Curiae for Reversal of the

Judgments Below, Vacco v. Quill, 521 U.S. 793

GEE cncasnenesensnecnsnannicnatemnsiammnetentnensanmnesscasednnanaseegsenines

Timothy Quill & Christine K. Cassel, Professional

Organizations’ Position Statements on Physician-

Assisted Suicide: A Case for Studied Neutrality,

ANNALS OF INTERNAL MED. 2003; 138(3): 208,

available at http://www.annals.org/cgi/reprint/138/

Timothy E. Quill et al., The Debate over Physician-

Assisted Suicide: Empirical Data and Convergent

Views, ANNALS OF INTERNAL MED. 1998; 128(7):

552, available at http//www.annals.org/cgi/content/

a ee encriscnstsninanionsninngiisintiicnnisiiubiaghaiinaptattmamneen

WESLEY J. SMITH, FORCED ExiT: THE SLIPPERY

SLOPE FROM ASSISTED SUICIDE TO LEGALIZED

TTT Oe 7, 9, 10,

UNAIDS, Alps: PALLIATIVE CARE (October 2000)........

J.C. WILLKE, ASSISTED SUICIDE & EUTHANASIA: PAST

Susan M. Wolf, Physician-Assisted Suicide in the

Context of Managed Care, 35 Dug. L. REV. 455

GE co snnnenseescemmenmecesmessniscanbensenennetensmenemsemmanengentnes

18, 19

1

INTEREST OF AMICUS’

Americans United for Life (AUL)’ is a national, non-

profit public interest legal and educational organization

founded in 1971. As the oldest pro-life legal organization

in the country, AUL is dedicated exclusively to nationwide

efforts to reinstate respect for human life in American law

and culture.

Over the last 32 years, AUL has filed many amicus

briefs with this Court in cases implicating the sanctity of

human life and the proper role of the medical profession at

the beginning and end of life. Specifically, AUL has filed

amicus briefs on behalf of interested parties in this Court’s

landmark end-of-life decisions: Cruzan v. Dir., Mo. Dep't of

Health, 497 U.S. 261 (1990); Washington v. Glucksberg,

521 U.S. 702 (1997); and Vacco v. Quill, 521 U.S. 793

(1997).

Over the last quarter century, AUL has also provided

expert legislative consultation to state legislatures on end-

of-life issues involving physician-assisted suicide and

withdrawal of nutrition and hydrat.on.

AUL advocates, among other things, that physician-

assisted suicide is neither good medical practice nor good

public policy. AUL believes that no terminally-ill patient

should, or has to, die in pain. AUL also believes that those

advocates who push physician-assisted suicide as the only

method of pain management for terminally-ill patients are

* This brief is filed with the written consent of the parties. Letters

of consent have been filed with the Clerk of this Court.

* Alliance Defense Fund, a non-profit public interest organization,

located in Scottsdale, Arizona, partially funded the preparation of this

brief. No counsel for a party authored this brief in whole or in part.

2

out of step with the latest advances in palliative care.

Since physician-assisted death is never necessary to

ensure that terminally-ill patients die peacefully, AUL

submits this brief in support of petitioners urging the

reversal of the lower court’s decision.

¢

SUMMARY OF ARGUMENT

On November 9, 2001, Attorney General John

Ashcroft published an interpretive rule under the Con-

trolled Substances Act determining that assisting suicide

is not a “legitimate medical purpose.” He also recognized

that pain management is a legitimate medical purpose.

The Attorney General was correct in making this differen-

tiation between physician-assisted suicide (PAS) and pain

management.

Importantly, the only medical reason given by advo-

cates of PAS is that assisted suicide is needed to alleviate

pain for those patients whose pain is “uncontrollable” or

“intolerable.” As is evidenced by medical studies and

associations, however, PAS is unnecessary for the treat-

ment of pain in terminally-ill patients. Rather, the pain

most patients experience can be completely alleviated

through medications. The remaining patients can be

sedated to a sleep-like state. Thus, pain is not “uncontrol-

lable,” but “uncontrolled.” Unwarranted fears, untrained

health care professionals, and uninformed patients are

major barriers to proper pain management in terminally-

ill patients.

In addition, there is no evidence that patients in

Oregon have sought PAS because their pain is “untreat-

able” or “uncontrollable.” Instead, patients are motivated

3

primarily by the desire not to lose autonomy or self-worth

— neither of which is medical in nature.

For these reasons, the Attorney General was correct in

determining that the prescription of controlled substances

for PAS is not a legitimate medical purpose. As such, the

Attorney General’s interpretive rule should be upheld and

the lower court’s decision should be reversed.

S

ARGUMENT

The Controlled Substances Act (CSA) establishes a

comprehensive, uniform federal scheme to regulate con-

trolled substances in all 50 states. See 21 U.S.C. § 801 et

seq. In U.S. v. Moore, this Court implied that the proper

standard to utilize in best enforcing the intent of the CSA

is a national standard. See generally U.S. v. Moore, 423

U.S. 122 (1975).

In accordance with the CSA and the Court’s decision

in Moore, Attorney General John Ashcroft published an

interpretive rule on November 9, 2001, which determined,

for purposes of the CSA, that assisting suicide is not a

“legitimate medical purpose” and that “prescribing, dis-

pensing, or administering federally controlled substances

to assist suicide violates the CSA.” Office of the Attorney

General, Dispensing of Controlled Substances to Assist

Suicide, 66 Fed. Reg. 56,607, § 1 (Nov. 9, 2001). On the

other hand, the Attorney General acknowledged that pain

management has long been recognized as a legitimate

medical purpose. Jd. at § 2. The Attorney General was

correct in differentiating between the use of controlled

substances for physician-assisted suicide (PAS) and the

use of such substances for pain management purposes.

4

As reported by the Oregon Department of Human

Services, the most common reasons patients give for

desiring physician-assisted suicide are loss of autonomy, a

decreasing ability to participate in activities that make life

enjoyable, and loss of dignity. Oregon Dep’t of Human Serv.,

Seventh Annual Report on Oregon’s Death with Dignity Act

15 (2005); Oregon Dep’t of Human Serv., Sixth Annual

Report on Oregon’s Death with Dignity Act 14 (2004).’ Not

one documented case of PAS in Oregon was requested

because of untreatable pain.* Yet, the examples generally

given by proponents of PAS point to the “hard cases” — those

cases where PAS is deemed necessary because terminally-ill

patients are suffering “uncontrollable” pain. However,

* See also NEW YORK STATE TASK FORCE ON LIFE AND THE Law,

WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE

MEDICAL CONTEXT 25 (1994); HERBERT HENDIN, SEDUCED BY DEATH:

Doctors, PATIENTS, AND ASSISTED SUICIDE 34 (1998) (HENDIN I); Timothy

E. Quill et al., The Debate over Physician-Assisted Suicide: Empirical

Data and Convergent Views, ANNALS OF INTERNAL MED. 1998; 128(7): 552-

558, available at http:/Awww.annals.org/cgi/content/full/128/7/552.

* While Amicus recognizes that, according to Oregon, a small

minority of PAS patients has requested suicide on the basis of “inade-

quate pain control or concern about it,” it is important to note that

requesting PAS out of a concern about possible pain is simply not the

same as requesting it because a patient is actually experiencing pain.

See Seventh Annual Report, supra, at 24; see also Sixth Annual Report,

supra, at 24 (acknowledging that patients discussing concerns about

inadequate pain conirol were not necessarily experiencing pain).

Furthermore, there is a significant difference between the “uncontrolla-

ble pain” PAS advocates contend requires assisted death and the reality

of “inadequate pain control,” which, as indicated by the AMA and other

sources, results mainly from physicians’ lack of pain management

awareness and other barriers. See Part I.B., infra. By creating such an

indistinct category as “inadequate pain control or concern about it,” the

State of Oregon confuses moderate pain, “uncontrollable” pain, and

concern about possible pain by placing them all into the same vague

grouping. This confusion cannot support the claim that PAS is medi-

cally necessary to alleviate pain.

5

according to studies by the American Medical Association

(AMA),’ the American Pain Society (APS), and the New York

State Task Force,° such pain is not “uncontrollable,” but

“uncontrolled.” Thus, physician-assisted suicide is simply

not necessary to relieve pain and suffering, and any sugges-

tion to the contrary runs counter to medical authorities and

studies, as well as to Oregon’s annual reports. As such, the

Attorney General was correct and reasonable in his determi-

nation that the prescription of controlled substances for PAS

is not a legitimate medical purpose.

I. PHYSICIAN-ASSISTED SUICIDE IS UNNEC-

ESSARY FOR THE TREATMENT OF PAIN IN

TERMINALLY-ILL PATIENTS

A. “Uncontrollable pain” can be completely al-

leviated through palliative care.

Of the reasons given by patients and advocates for the

need for PAS, most involve autonomy and self-worth — the

* Throughout this brief, Amicus cites to various AMA sources, the

majority of which are part of the AMA’s current continuing medical

education program designed specifically to educate physicians on

proper pain management, including the end-of-life care of the termi-

nally-ill. See, e.g., AMA, Module 12: Management of Cancer Pain: Other

Analgesic Approaches and End of Life Care (2003), available at

http://www.ama-cmeonline.com/.

* This Task Force, whose members hold many different views on

PAS and euthanasia, was convened by Governor Mario M. Cuomo with

the mandate to recommend public policy on issues raised by medical

advances. TASK FORCE, supra, at vii, xii. This Court cited the Task

Force throughout its decision in Washington v. Glucksberg and recog-

nized it as “an ongoing, blue-ribbon commission composed of doctors,

ethicists, lawyers, religious leaders, and interested laymen.” See

Washington v. Glucksberg, 521 U.S. 702, 719 (1997).

" See Parts I & II, infra.

6

preservation of neither of which is medical in nature.’

While advocates typically cite to the “hard cases” where

terminally-ill patients suffer “uncontrollable” pain during

their last days, such cases are “extremely rare” and almost

non-existent. TASK FORCE, supra, at 40, 93; HENDIN I,

supra, at 49.

Contrary to claims by other amici, most experts in

pain management believe that 95 to 98 percent of pain can

be relieved in terminally-ill patients.’ Only two percent of

patients in hospice care experience pain that is difficult for

a skilled team to manage. Project on Death Brief, supra, at

Part II.A.1 n.10; Burt, supra, at 166 n.37 (citing the AMA).

Even proponents of PAS admit that palliative care can

relieve most terminal suffering and that the debate

focuses on a relatively small number of patients. Quill et

al., supra, at 208-11.

According to the New York State Task Force, the APS,

and the AMA, pain can be effectively treated in most

patients simply through the use of analgesic medications

* See Part II, infra, for discussion of the definition of “medical.”

* Timothy E. Quill & Christine K. Cassel, Professional Organiza-

tions’ Position Statements on Physician-Assisted Suicide: A Case for

Studied Neutrality, ANNALS OF INTERNAL MED. 2003; 138(3): 208,

available at http://www.annals.org/cgi/reprint/138/3/208.pdf. See also

Project on Death in America/Open Society Institute, Brief as Amicus

Curiae for Reversal of the Judgments Below at Part II.A.1, Vacco v.

Quill, 521 U.S. 793 (1997) (stating that pain can be alleviated in 98

percent of cases); Robert A. Burt, Constitutionalizing Physician-Assisted

Suicide: Will Lightning Strike Thrice?, 35 Dug. L. REV. 159, 166 (1996)

(stating that knowledgeable physicians and researchers claim that pain

can be alleviated in 98 percent of cases); Kathleen M. Foley, Transform-

ing the Culture of Dying, PROJECT ON DEATH IN AMERICA: JANUARY 2001

— DECEMBER 2003 REPORT OF ACTIVITIES 11 (Open Society Institute,

2004) (“Death is inevitable, but severe suffering is not.”) (Foley I).

ee 8 ee oe wee ee

ee ee tee

7

and pain relief techniques. TASK FORCE, supra, at 35, 193;

AMA, Report 4 of the Council on Scientific Affairs: Aspects

of Pain Management in Adults {3 (1995), at http://

www.ama-assn.org/ama/pub/category/13672.html. See also

J. Andrew Billings, Recent Advances: Palliative Care,

BRITISH MED. J. 2000; 321: 555-56. The pain of the remain-

ing patients - who amount to less than three percent — can

always be relieved through sedation.” To put it simply,

“[p]ain can always be alleviated,” and it is fallacious to

claim that killing patients is at times the only method of

pain relief. Ira R. Byock, Why Do We Make Dying So

Miserable?, WASHINGTON POST, January 22, 1997, at 4 6,

available at http://)www.afsp.org/about/byock.htm; SMITH,

supra, at 223."

The basic component of pain management is analgesic

medication.” TASK FORCE, supra, at 37. Two types of medi-

cations are widely used: nonsteroidal anti-inflammatory

drugs (NSAIDS), such as aspirin and ibuprofen, and

opioids, such as codeine and morphine. Jd. at 37-38." In

* American Geriatrics Society, Brief as Amicus Curiae Urging

Reversal of the Judgments Below at Part 1.B, Vacco v. Quill, 521 U.S.

793 (1997); WESLEY J. SMITH, FORCED Exit: THE SLIPPERY SLOPE FROM

ASSISTED SUICIDE TO LEGALIZED MURDER 207 (1997).

" Moreover, the overwhelming majority of terminally-ill patients

do not desire suicide and fight for life until the end. HENDIN I, supra, at

34. Even where PAS is requested, in most cases the patient will

withdraw the request after proper palliative care has been provided.

TASK FORCE, supra, at 108 n.113, 120-21.

* Obviously, removing the source of the pain is ideal, and the use

- of chemot. erapy and radiation in palliative care is also widely accepted.

AMA, Module 11: Management of Cancer Pain: Pharmacotherapy 10

(2003), available at http://www.ama-cmeonline.com/.

*™ See also AMA, Module 2: Pain Management: Overview of

Management Options 12 (2003), available at http://www.ama-cmeonline.

com/; Shannon Brownlee & Joannie M. Schrof, The Quality of Mercy:

(Continued on following page)

8

1986, the World Health Organization proposed an “analge-

sic ladder” approach which has become the guide for the

management of all pain. Jd. at 38. The first step in

conquering pain is the use of NSAIDs; the next step is

using a weak opioid drug combined with a non-opioid. Jd.;

AMA Module 11, supra, at 11. For example, codeine could

be combined with acetaminophen. TASK FORCE, supra, at

38. Patients with continuing pain could receive a stronger

opioid, such as morphine. Jd.; AMA Module 11, supra, at

11.” The best relief is provided when analgesic medica-

tions are given at regular intervals rather than waiting for

pain to intensify. HENDIN I, supra, at 235.

Effective Pain Treatments Already Exist. Why Aren't Doctors Using

Them?, U.S. News & WORLD REPORT, Mar. 17, 1997, at { 12, available

at http://www.masmith.inspired.net.au/pain/mercy.htm.

* See also UNAIDS, AIDS: PALLIATIVE CARE 5 (Oct. 2000); AMA

Module 2, supra, at 11; AMA Module 11, supra, at 11. While most

research has concerned cancer and AIDS patients, the AMA instructs

that the treatment principles apply to all types of persistent pain

associated with terminal illnesses. AMA, Module 10: Pain Management:

Overview and Assessment of Cancer Pain 3 (2003), available at

http://www.ama-cmeonline.com/.

* The combination of an intraspinal administration of opioids and

local anesthetic can provide effective pain control when pain is other-

wise intractable. TASK FORCE, supra, at 40. Anti-depressant medication

has also been effective in relieving otherwise intractable pain. HENDIN

I, supra, at 235; AMA Module 11, supra, at 27.

* Techniques such as a self-administered opioid drip control pain

and help patients maintain their autonomy. TASK FORCE, supra, at 135.

According to an article published by the U.S. Health Resources &

Services Administration, unlike PAS, analgesic medications are also

available in liquid and patch forms for those patients who cannot

swallow. Carla Alexander, Palliative and End-of-Life Care, A GUIDE TO

THE CLINICAL CARE OF WOMEN WITH HIV 354 (J. Anderson ed., Heath

Resources and Service Admin., HIV/AIDS Bureau, 2001).

a

9

The New York State Task Force found that the pain

experienced by 90 percent of cancer patients can be allevi-

ated through such pharmacological treatments alone.

TASK FORCE, supra, at 40. The remaining patients may

also gain significant relief from pain through palliative

efforts. Id. Non-pharmacological therapies can be applied

in addition to analgesic and ancillary medications.” Jd. at

39; AMA Report 4, supra, at { 12.

For the very small number of patients for whom

pharmacological and non-pharmacological remedies do not

offer enough relief, sedation to a sleep-like state is avail-

able to keep patients from experiencing severe pain and

suffering. TASK FORCE, supra, at 40; SMITH, supra, at 207.

Such sedation is now a widely accepted medical, ethical,

and legal option when patients cannot be helped in any

other way, and sedation will always eliminate a patient’s

symptoms near death. American Geriatrics Society Brief,

supra, at Part III.D.; HENDIN I, supra, at 234, 242; AMA

Module 12, supra, at 14.

” These treatments include cognitive and behavioral approaches

such as relaxation exercises and distraction; applications of heat or

cold; exercise; anesthetic interventions to block nerve transmission oi a

temporary or ongoing basis; and neurosurgery to cut nerves. TASK

FORCE, supra, at 39; AMA Module 2, supra, at 9; AMA Module 12,

supra, at 10-11, 13; AMA Report 4, supra, at { 12. Procedures designed

to surgically denervate painful areas are available for every level of the

nervous system. AMA Module 12, supra, at 12. Acupuncture, acupres-

sure, physical therapy, and transcutaneous electrical nerve stimulation

(TENS) are also widely used. Alexander, supra, at 366; AMA Report 4,

supra, at { 12; Timothy Moynihan, Cancer Pain Treatment: An Inter-

view with a Mayo Clinic Specialist {7, October 20, 2003, at

http://www.mayoclinic.com/invoke.cfm?id=CA00021. See also AMA

Module 2, supra, at 9; AMA Module 12, supra, at 11, 13.

10

It is evident that options other than PAS already

exist. PAS is simply not necessary to relieve pain and

suffering. As such, it is not a “legitimate medical purpose,”

and the Attorney General's interpretation of the CSA is

correct and reasonable. This Court should reverse the

Ninth Circuit’s decision, and the Attorney General’s

interpretation should be upheld and enforced.

B. Reasons for the existence of uncontrolled

pain relate to unwarranted fears, un-

trained heath care professionals, and unin-

formed patients.

Pain exists because it is uncontrolled — not because it

is uncontrollable. Dr. Ira Byock, the president of the

American Academy of Hospice and Palliative Medicine,

states that the only reason that “hard cases” exist at all is

because “undertreatment and maltreatment at the end of

life is endemic.” SMITH, supra, at 206. These hard cases

result because certain barriers block effective palliative

care. Id. at 146. Indeed, medical experts agree that a

“serious gap” exists between the abilities of modern

medicine and the type of palliative care generally received

by terminally-ill patients. Id. at 147; TASK FORCE, supra,

at 35; Richard M. Doerflinger, Conclusion: Shaky Founda-

tions and Slippery Slopes, 35 Duq. L. REv. 523, 531 (1996).

There are three primary barriers to the effective

treatment of pain: 1) unwarranted fears grounded in

palliation myths propagated by advocates of physician-

assisted suicide and euthanasia; 2) the lack of training of

hospital and health care professionals in pain control

methods and palliative care; and 3) the patients’ own

beliefs and lack of information about pain and pain man-

agement. See TASK FORCE, supra, at xi, 35; AMA, Module

11

3: Pain Management: Barriers to Pain Management and

Pain in Special Populations 9 (2003), available at

http://www.ama-cmeonline.com/.

First, physicians and patients tend to believe the

following myths: use of palliative care methods such as

analgesics lead to respiratory depression and other side

effects; palliative care and analgesics hasten death; and

the use of analgesics such as morphine lead to addiction

and an unhealthy tolerance of medications which will

prohibit pain relief when “really needed.” There are also

misconceptions about the nature of sedation.

These myths have led physicians to undertreat pa-

tients and have led patients to forgo mentioning their

pain. However, each myth is baseless. Fears concerning

respiratory depression are “unjustifiable” and “un-

founded.” TASK FORCE, supra, at 44; Yale Kamisar, The

“Right to Die”: On Drawing (and Erasing) Lines, 35 Dua.

L. REv. 481, 497 (1996). The AMA reports that patients

with severe pain — i.e., the “hard cases” — become resistant

to the respiratory depressant effects of morphine and

morphine-like medications. AMA Report 4, supra, at { 30.

In addition, patients rapidly develop a tolerance that

lessens the impact of respiratory depression and other

opioid side effects.” TASK FORCE, supra, at 162; see also

NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, WHEN

“ This tolerance minimizes other side effects, such as mental

cloudiness. TASK FORCE, supra, at 162. Sedation and cognitive impair-

ment disappear in most patients. AMA Module 2, supra, at 26; AMA

Module 11, supra, at 26. Other side effects such as nausea generally

dissipate with continued use, and patients will return to normal or

improved functioning. Alexander, supra, at 355; AMA Module 2, supra,

at 26. Most patients are alert and many are capable of independently

caring for themselves. See Kamisar, supra, at 497.

12

DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN

THE MEDICAL CONTEXT (SUPP. TO REPORT) 17 (1997);

SMITH, supra, at 222.

Likewise, there is no evidence that pain medications

will hasten death if such medications are taken correctly.

The New York State Task Foree labeled the fear of has-

tened death one of the “many myths ... which have

contributed to the undermedication of patients experienc-

ing treatable pain.” TASK FORCE SupP., supra, at 17.

Rather, an opioid can be administered safely in large doses

when adjusted to control side effects. TASK FORCE, supra,

at 39. See also Phillip D. Good, Advances in Palliative Care

Relevant to the Wider Delivery of Healthcare, MED. J. OF

AUSTRALIA 2003; 179: S44 (stating that recent research

indicates that the use of opioids does not influence length

of life).

Fears regarding addiction and tolerance are equally

unjustifiable, and the AMA instructs that opioids should

never be withheld from terminally-ill patients for fear of

addiction. TASK FORCE, supra, at 44; AMA Module 11,

supra, at 11. Addiction is extremely rare and occurs in only

.04 percent of patients treated with morphine. TASK

FORCE, supra, at 44; J.C. WILLKE, ASSISTED SuICIDE &

EUTHANASIA: Past & PRESENT 102-03 (1998). Physicians

and patients must understand that there is a difference

between physical dependence, or toleration, and psycho-

logical dependence, or addiction.” TaSK FORCE, supra, at

160; Federation of State Medical Boards of the United

* Addicti is a “pri , . biologi li ” influ-

enced by genetic, psychosocial, and environmental factors, while

physical dependence and tolerance merely indicate a state of adapta-

tion. AMA Module 3, supra, at 11 (emphasis added).

ee

13

States, Inc., Model Policy for the Use of Controlled Sub-

stances for the Treatment of Pain §7 (2004), at http://

www.ama-assn.org/ama/pub/category/11541.html. Behav-

iors that may suggest addiction generally indicate an

increase in pain from the progression of the underlying

disease. TASK FORCE, supra, at 160. Even for patients with

a history of addiction, opioids can be used safely and

effectively to control pain.” AMA Report 4, supra, at J 27.

Similarly, physicians and patients must be informed

that there is no limit to tolerance of opioids. TASK FORCE

SuPP., supra, at 162; AMA Module 11, supra, at 15. In fact,

dosages can be increased without introducing any addi-

tional adverse consequences. AMA Report 4, supra, at

{ 32. Therefore, patients need not delay using analgesic

medications for fear that such medications will not be

effective when “really needed.” Larger doses are effective

and safe. Jd.

Finally, physicians and the very few patients who

require it need not fear sedation. Most sedated patients

die peacefully without suffering, and sedation will always

work to control pain when a patient is nearing death.

American Geriatrics Society Brief, supra, at Part III.D.;

HENDIN I, supra, at 14; Byock, supra, at { 6.

The second major barrier to proper pain management

is the lack of training of most hospitals and health care

” Even if there was a risk of psychological dependence, the New

York State Task Force found that the benefits of opioid use would

simply outweigh the risks of addiction for patients experiencing

significant pain, and especially for patients who are terminally-ill. TASK

FORCE, supra, at 161.

14

professionals.” Very few physicians realize that it is

possible to relieve all pain through proper pain manage-

ment techniques.” HENDIN I, supra, at 259. Only a fraction

of medical residency programs require a course in pain

management, and even fewer teach palliative care.”

Brownlee & Schrof, supra, at { 8. Health care profession-

als have a limited understanding of the physiology of pain

and the pharmacology of analgesics, and clinical care units

in the past have had no systems in place to assure that

”™ The AMA asserts that the “ultimate reason” for undertreatment

of cancer pain is that physicians and other health care professionals are

inadequately educated on pain management. AMA Module 10, supra, at

8; see also AMA Report 4, supra, at 7 2 (citing guidelines from the

Agency for Health Care Policy & Research as stating that inadequate

pain management is widespread and that undertreatment by practitio-

ners is a major cause). The APS agrees, stating that the most common

reason for unrelieved pain in U.S. hospitals is the failure of hospital

staff to routinely assess pain relief. TASK FORCE, supra, at 19.

* Interestingly, support for PAS is highest among those health

professionals who are the least knowledgeable about pain management

— the more physicians know about palliative care, the less likely they

are to support legalizing PAS and euthanasia. AMA et al., Brief of

Amici Curiae in Support of Petitioners at Health Care Background Part

D.2, Washington v. Glucksberg, 521 U.S. 702 (1997); Herbert Hendin,

The Slippery Slope: The Dutch Example, 35 Dug. L. REV. 427, 430-31

(1996).

* The AMA reports that in one study, 88 percent of physicians rated

their medical school training in cancer pain management as fair or poor,

and 73 percent rated their residency training in pain management as fair

or poor. AMA Module 3, supra, at 9. In 1999, the National Cancer Institute

spent less than one percent of its budget on any aspect of research or

training in palliative care Kathleen M. Foley, Improving Palliative Care for

Cancer: Summary and Recommendations (June 19, 2001), at http//

www4.nationalacademies.org/new.nsfisbn/s0309075637?OpenDocument.

15

pain is recognized and treatments modified. TASK FORCE,

supra, at 44, 193.”

The third major barrier involves the patients’ own

beliefs and lack of information regarding palliative care.

Patients are subject to societal notions, as well as the

reactions of their families, which generally disfavor the

use of narcotics and other analgesic medications. AMA

Report 4, supra, at {{ 38-39. Many patients fail to ac-

knowledge pain out of a denial that the disease is pro-

gressing. Id. at { 34; AMA Module 3, supra, at 10. Others

prize stoicism and believe that admitting pain is a sign of

weakness. TASK FORCE, supra, at 46; AMA Module 3,

supra, at 10; AMA Report 4, supra, at 4 33. The most

reliable indicator of pain is a patient’s own report, but pain

goes undiagnosed and untreated when patients fail to

discuss their pain. AMA, Module 1: Pain Management:

Pathophysiology of Pain and Pain Assessment 8, 13, 19

(2003), available at http://www.ama-cmeonline.com/; AMA

Module 10, supra, at 15.

On the other hand, patients may have received a

negative response in the past after requesting an in-

creased dose of analgesic medication. AMA Report 4,

supra, at 435. Many physicians and other health care

professionals never address the issue of pain with their

“ The AMA explains that hospitals and health care professionals

also fear potential harassment by state or local regulatory authorities.

AMA Report 4, supra, at 4 16. The agencies most likely to investigate

prescribing practices are state medical boards. AMA Module 3, supra, at

15. State laws are often more restrictive than federal regulations and

even impose limits against medical practices that are fully within

medical professional standards. AMA Report 4, supra, at { 17. Health

care workers also tend to hold misconceptions about regulations and

how the restrictions work. Project on Death Brief, supra, at Part I1.A.1.

16

patients or fail to do so in a timely, appropriate manner.

TASK FORCE, supra, at 153; Moynihan, supra, at { 8. Such

ineffective communication leaves patients uninformed that

pain management options and clinics exist. TASK FORCE,

supra, at 122; SMITH, supra, at 206.

When this Court decided Glucksberg in 1997, the lack

of effective pain relief was a problem that society had only

just begun to undertake. See TASK FORCE, supra, at 137.

The New York State Task Force concluded that “[t)he

effective implementation of existing clinical knowledge

and programs for pain management is almost certain to

have an immediate impact on relieving suffering.” Jd. at

159. In 2004, Kathleen Foley, Director of Project on Death

in America, stated that the “field of palliative care is

definitely much stronger than it was ten years ago.” Foley

I, supra, at 11.

The goal of improving the way in which people die is

being reached for more and more people each day. Gara

Lamarche, What We Have Learned from The Project on

Death in America, PROJECT ON DEATH IN AMERICA: JANU-

ARY 2001 — DECEMBER 2003 REPORT OF ACTIVITIES 8 (Open

Soc’y Inst., 2004). Thus, improvements have been made

even since the Attorney General first issued the interpre-

tive rule. As can be seen from the preceding discussion, the

proper answer to uncontrolled pain is education and the

wider use of effective palliative techniques — not the

elimination of the sufferer.

17

Il. MEDICAL REASONS ARE NOT MOTIVATING

FACTORS OF TERMINALLY-ILL PATIENTS

SEEKING PHYSICIAN-ASSISTED SUICIDE

As quoted by certain amici in their Ninth Circuit

amicus brief, the ordinary meaning of “medical” is

“[plertaining to ... medicine, or the science and art of

investigation, prevention, cure, and alleviation of disease.”

Amer. Acad. of Pain Mgmt. et al., Brief of Amici Curiae in

Support of the Patient Plaintiff-Appellees and in Affir-

mance of the District Court’s Gran* of Summary Judgment

to Appellees at 7, Oregon v. Ashcroft, 368 F.3d 1118 (9th

Cir. 2002) (No. 02-35587) (quoting BLACK’s Law DICTION.

ARY 982 (6th ed. 1990)). The amici go on to state that the

ordinary meaning of “alleviate” is “[tlo make (pain, for

example) more bearable.” Jd. (quoting AMERICAN HERITAGE

DICTIONARY OF THE ENGLISH LANGUAGE 49 (3rd ed. 1992)).

The amici erroneously conclude that PAS is legitimate

because the ordinary meaning of “medical purpose” in-

cludes treatment conducted with the purpose of alleviating

disease-related pain. Jd.

Yet, nowhere in the seven annual reports compiled

by the Oregon Department of Human Services” is

there evidence that any patients sought PAS because

their pain was “untreatable” or “uncontrollable.” As

discussed above,” the state of Oregon cannot represent

that any patient ever sought PAS because of “untreat-

able” or “uncontrollable” pain. “Concerns about inadequate

* These annual reports are mandated by the Death with Dignity

Act. See Seventh Annual Report, supra, at 4.

* See supra n.4 & accompanying text.

18

pain control” or “inadequate pain control”” cannot support

a claim that PAS is medically-necessary to alleviate pain.

There is simply no evidence that PAS is ever medically

required to alleviate pain. Consequently, nothing in

Oregon’s experience undermines the Attorney General's

interpretive rule.”

Instead, the most frequently cited concerns across all

seven years of Oregon’s annual reports are the loss of

autonomy and the decreased ability to participate in

activities that make life enjoyable.” Jd. at 16. Both U.S.

and Dutch studies reveal that nonphysical factors and

depression are more important than pain and other

physical or medical symptoms. Susan M. Wolf, Physician-

Assisted Suicide in the Context of Managed Care, 35 Dua.

L. REv. 455, 466-68 (1996). Intolerable physical symptoms

are simply not the reason most patients request PAS or

euthanasia. AMA Brief, supra, at Health Care Background

Part C.1.

* See Seventh Annual Report, supra, at 24 (listing “inadequate

pain control or concern about it” as a factor in a very small minority of

PAS deaths). But see supra n.4 & accompanying text.

* Contrary to the Patient-Respondents’ claim that the Attorney

General ignored the data collected by the State of Oregon, the interpre-

tive rule actually reflects the fact that the “medical purpose” of alleviat-

ing “uncontrollable” pain does not appear in any of Oregon’s annual

reports. See, e.g., Seventh Annual Report, supra, at 24; see also Patient-

Respondents’ Brief in Opposition at 20, Ashcroft v. Oregon (No. 04-623).

The findings of the New York State Task Force confirm that loss of

control and feelings of helplessness may be the most significant factors

leading to PAS requests. TASK FORCE, supra, at 25.

* These concerns were cited by physicians, family members,

hospice nurses, and social workers caring for PAS patients in Oregon.

Seventh Annual Report, supra, at 16-17.

19

What is more common, however, is the dread of what

may happen in the dying process. Herbert Hendin, Suicide

and the Request for Assisted Suicide: Meaning and Motiva-

tion, 35 Dug. L. REV. 285, 290 (1996); see also Seventh

Annual Report, supra, at 24. The AMA, American Nurses

Association, and American Psychiatric Association confirm

that the demand for PAS does not come primarily from

patients in actual and untreatable pain, but from those

patients who are depressed or fear the possibility of future

pain, loss of dignity, or burdening their families. AMA

Brief, supra, at Part C.

Clearly, these patients are motivated by unjustified

fears that could be alleviated with an increased awareness

of the effectiveness of palliative care and with the educa-

tion of their physicians in pain management techniques.

The fact that pain itself does not lead patients to request

PAS demolishes the argument that PAS is needed to

control pain, leaving proponents with no underlying

medical need for physician-assisted suicide.

As indicated by the fact that end-of-life pain can be

controlled and the fact that pain is not a motivating factor

of those patients requesting PAS, the Attorney General’s

interpretive rule that the prescription of controlled sub-

stances for PAS is not a legitimate medical practice is

supported by substantial medical evidence and the record

in the State of Oregon. As such, the rule should be upheld

and enforced.

20

CONCLUSION

The judgment of the court below should be reversed.

Respectfully submitted,

NIKOLAS T. NIKAS

(Counsel of Record)

MAILEE R. SMITH

AMERICANS UNITED FOR LIFE

310 South Peoria Street

Suite 300

Chicago, Illinois 60607

312/492-7234

Counsel for Amicus Curiae

May 9, 2005