Pain (26 page)

As the
Glucksberg
case moved forward, physicians and state boards heard increasing criticism about their profound lack of knowledge about pain and its proper management; indeed, for some observers, medicine's own failure to think carefully about compassionate care had opened the way to these desperate measures. This was Kevorkian's argument. Feeling abandoned by a profession that did not “feel their pain,” patients had turned to him. Stung by these criticisms, state medical boards became aggressive policy makers in the Kevorkian era. In October 1996, the California State Board of Pharmacy, for example, became the first such board to issue regulations detailing the proper use of opiates in pain management. A year later, all of the state medical boards convened nationally to write new rules on pain management. The guidelines sought to help doctors navigate the politically charged terrain, to help them “comply with acceptable pain management standards and … help DEA and other regulators determine whether such treatment is appropriate under the circumstances.” At the same time, the guidelines tried to “help ensure patient access to needed controlled substances for pain management.” It was precisely in this context that researcher David Joranson, a pain policy specialist in Wisconsin, commented that the increasing trend toward pain doctors working with legislators on pain legislation (starting with Hill in Texas in 1989) had turned out to be a double-edged
sword. Physicians were not seizing control; rather, they were ceding authority on pain to activists, elected officials, and the courts. “Opening the door to legislative action on medical issues requires careful consideration,” David Joranson noted. “This process is political and complex, and its outcomes are difficult to foresee.”
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But in truth, however, the pain debate had sat firmly in the realm of politics and law for some time, with physicians constantly struggling for relevance in the debate over liberal relief and conservative care.

Now the question of pain and ultimate relief was in the courts. How would the Supreme Court's nine justices rule on Dr. Glucksberg and, by extension, the practice of physician-assisted suicide? The court took up both the
Glucksberg
case alongside another from New York,
Vacco v. Quill
, where physician Timothy Quill and two other physicians had charged that New York's ban on PAS was inconsistent with the state's legal recognition of the right to refuse life-saving treatment.
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How would it reconcile the lower courts' diverse viewpoints? In
Compassion in Dying v. Washington
, the Ninth Circuit had ruled that “compassion is a proper, desirable, even necessary component of judicial character; but [it is] … certainly not the sole law of human existence. Unrestrained by other virtues … it leads to catastrophe. Justice, prudence, and fortitude are necessary too.” Ohio's Supreme Court had ruled in 1996 that physician assisted suicide was not a crime. In Florida, one court found that a privacy provision in the state constitution gave individuals the right to physician-assisted suicide. But the Florida State Supreme Court had overturned that ruling, finding that the state's constitution gave no such right. In Michigan, meanwhile, the courts and legislature were still feverishly grappling with Kevorkian's disconcerting work. Oregonians were in limbo, preparing to vote a second time on PAS. And now the nine Supreme Court justices were to reconcile these conflicts and to decide on the constitutional questions of pain and ultimate relief for all Americans.
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In many ways, the justices were a microcosm of the shifting political fault lines and tilt toward conservatism that had come to define American society by the 1990s. They were led by the arch-conservative William Rehnquist, who had been appointed to the liberal Burger court by President Nixon. For years, Rehnquist was in the minority, but, as the political currents shifted and gave conservatives power in Washington, the balance of the court had swung. The court tilted decidedly in Rehnquist's
direction with President Reagan's appointment of Sandra Day O'Connor in 1981, who was increasingly seen as the conservative swing vote on a host of hot-button issues—affirmative action, abortion rights, discrimination law, and so on. Around the time of O'Connor's appointment, one astute author observed that “during the early days of the New Deal, it was the liberals who made the sharpest attacks on the courts and the conservatives who were the judiciary's strongest defenders.” Then later the “conservatives and the right wing found the Warren Supreme Court an anathema,” and now with O'Connor's nomination it is the liberals' turn again to be alarmed.
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With Rehnquist's ascendance to chief justice in 1986 (nominated by Reagan), his court now left liberals anxious about how it would rule on affirmative action, voting rights, state's rights, federal powers, and the reach of government to safeguard the health and welfare of its citizens.

As the PAS and pain debates entered the high courts, the issue complicated and confused the lines between conservatism and liberalism. For one thing, PAS energized libertarian elements on both the left and the right, groups often at odds with Catholics and Protestants in their own parties. For many on the left and right, the strong libertarian and states' rights claims underpinning PAS were shockingly at odds with their liberal and conservative moral commitments. Perhaps the most notably political shift born of the PAS debate was this: classically conservative beliefs about states' freedom from government and individual self-determination—beliefs once at the heart of 1970s and 1980s neoconservatism—now seemed to align with liberals in Oregon, California, and left-leaning states. Liberals held up PAS proudly as a state's rights issue. But here, religious conservatives parted company with older conservative ideals. As historian Daniel Rodgers said of the late twentieth century's “age of fracture,” here was a new political climate distinct from the 1960s, 1970s, and even the 1980s, in which one party's “arguments poached on parallel debates around them, reworking their claims and concepts … for new occasions.”
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If political advantage could be gained for PAS and medical marijuana, for example, liberal Oregonians and Californians happily championed states' rights (an old conservative appeal in the eras of big liberal government). In these ways, the PAS debate in the courts revealed the subtle remaking of political positions—as liberals embraced Oregon's right to legislate compassionate care, while
religious conservatives looked to federal law to stop this trend toward liberty and free expression. The PAS cases showed how difficult it was to fix pain relief neatly with the political labels—liberal, conservative, libertarian.

The Supreme Court justices easily, almost casually, dismissed the issue of whether a person had a constitutional “right to die”; all nine justices agreed that the U.S. Constitution granted no such right. But the question of a right to be pain free at the end of life took much more effort to tease apart. Pain relief at the end of life sat precariously in the gray zone of liberty. No justice wanted to endorse pain relief if it were merely a ruse for allowing covert euthanasia, but no justice wished for people to suffer because of a heartless denial of care. On this topic, the court took its guide from an amicus brief filed by the AMA laying out pain theory and the double effect principle. The AMA stood firmly against PAS as inconsistent with the duties, ethics, and core principles of medicine, but the association hedged on the matter of aggressive pain management near the end of life. Drawing on the same principle used by Jack Kevorkian, the AMA told the court, “The recognition that physicians should provide patients pain medication sufficient to ease their pain, even where that may serve to hasten death, is
vital
to ensuring that no patient suffer from physical pain.”
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The justices of the Supreme Court accepted this logic and followed suit, using the double effect principle to demarcate the middle ground of righteous medicine.

Rehnquist—who had suffered severe back pain for years and who (in the 1970s) had become addicted to a sedative and hypnotic drug Placidyl—wrote the majority opinion on the
Glucksberg
case, with Scalia, Kennedy, and Thomas concurring. All were on the Court's right, having been nominated between 1986 and 1991 by Republican presidents (Ronald Reagan and his successor George H. W. Bush), yet their views did not necessarily echo conservative ideology. The court's remaining justices (Breyer, Ginsburg, Souter, and Stevens), who except for Souter and Stevens had been appointed by Democratic presidents, also agreed that no constitutional right to PAS existed. But the two blocs differed on the rationale and thus wrote separate concurrent opinions. Meanwhile, in addition to siding with the majority, O'Connor—the court's quintessential swing justice—wanted her own independent say. So although she signed on to Rehnquist's statement, O'Connor wrote her own opinion—joined
now by Ginsburg and Breyer. More than any of the opinions, it would be hers that received attention, for it seemed to indicate where the middle of the court stood on this question of pain relief as a constitutional right and how the court might rule in the future should the PAS issue come before it again.
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Echoing an individual liberty and states' rights outlook championed by small-government conservatives, O'Connor quoted from her earlier opinion in the case of Nancy Cruzan, which had established the right of competent persons to control when their own life support was terminated. There, she noted that “the … challenging task of crafting appropriate procedures for safeguarding … liberty interests is entrusted to the ‘laboratory' of the States … in the first instance.” This statement suggested that, while the court denied individuals a constitutional “right” to physician-assisted suicide, it would not impede Oregon from creating one at the state level. Accepting the AMA's principle of double effect, she also wrote definitively, “There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths.” The ruling was read as a statement—as close as the courts had ever come—acknowledging, if not a right to die, then a right to relief at the end of life. As one legal observer noted, “Justices Breyer and O'Connor [and Ginsburg] … are saying in effect (and quite possibly this view has the support of a majority of the Court) that if a state were to prohibit the administration of pain relief desperately needed by a patient if and when the increased dosage of medication is highly likely to bring about death, they would want to revisit the law of death and dying and consider whether such a restriction on pain relief is constitutionally permissible.”
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But the effort to rewrite the laws on death, dying, and pain would not end with the court's 1997
Glucksberg
ruling, nor would politicizing pain in the Congress and states subside; the stakes were far too high for that. Ruling before Oregonians had a chance to vote again on PAS in November 1997, the Supreme Court invited debate on the topic to continue—which it did. That year, nine states considered legislation banning assisted suicide; eleven introduced bills authorizing it. The high court wished to see these battles play out. When the dust settled in the states, Oregon stood alone; no other state had joined in legalizing PAS. The court preferred this approach—to let the people of the states decide
the parameters of pain relief. Emboldened now by the court, states also took up an array of pain bills, with pain as a continuing proxy for the cultural battles on the left and right.
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When Oregon's Death with Dignity law went into effect, a new era of lawful relief had opened—albeit in one small corner of the nation and only for a small subset of patients on the fringes of the large population of people in chronic pain. With a critical eye on Oregon, the Republican-controlled U.S. Congress struck back. Having dramatically seized control of the House in the 1994 midterm elections and still swinging hard to the right, national Republicans responded to the court by taking quick action on its own national PAS ban. First was federal funding. A bill signed into law by President Clinton, the Assisted Suicide Funding Restriction Act of 1997, barred the use of federal funds—including Medicare and Medicaid—for assisted suicide. Clinton, the same man who famously told Americans “I feel your pain,” sought the middle ground of compassion, observing that the bill “will allow the federal government to speak with a clear voice in opposing these practices.” Signing the law, he endorsed the view that “to endorse assisted suicide would set us on a disturbing and perhaps dangerous path.” The act passed the House overwhelmingly on a vote of 398-16 and the Senate vote was unanimous.
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But there was apparently very little that opponents of Oregon's law could do to stop assisted suicides from going forward there, for following the state's November 1997 vote (in which 60 percent voted to uphold the results of the 1994 election), PAS as a form of relief became legal. The law had survived many political and legal challenges. It had been enjoined by a federal trial judge, but that ruling was overturned on appeal. In November, when the Supreme Court refused to consider the last appeal by its opponents, PAS became Oregon law. At that moment, the Clinton administration announced that (despite the president's objection to the practice) the federal government would not interfere. The law—once and for all—would be a matter of state jurisdiction. In 1998, fifteen terminally ill Oregonians used the new right to commit suicide with physician assistance.

But the battle over relief only seemed to have ended in Oregon's favor; in fact, it was still not over for the Republican-controlled Congress. Each of the first fifteen Oregonians to exercise the right granted by the PAS law used barbiturates in their deaths—drugs that were federally
controlled substances. Here (in this inherent tension between state and federal law over drug policy) the Republican Right in Congress found yet another opportunity to attack. Senator Orrin Hatch (R-Utah), Representative Henry Hyde (R-Illinois), and other conservatives promised more federal legislation to undo what Oregon had done. The legal apparatus of federal drug regulation (built up since passage of the U.S. Controlled Substances Act and establishment of the DEA in the early 1970s under Nixon) gave them one last opportunity to exercise control over what they saw as a morally suspect rogue state.