[Congressional Record Volume 152, Number 107 (Tuesday, September 5, 2006)]
[Senate]
[Pages S8920-S8921]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         DEATH WITH DIGNITY ACT

  Mr. WYDEN. Mr. President, after the Senate's unfortunate debate about 
the tragic case of the late Terri Schiavo, I thought the Senate was 
unlikely to debate this matter any time soon. Unfortunately, it seems 
there may be another discussion of this matter. In spite of the fact 
that the American people made it very clear that the Government ought 
to stay out of these tragic end-of-life matters, new legislation, S. 
3788, has been introduced which would, in effect, throw Oregon's Death 
with Dignity Act into the trash can.
  As a result of the introduction of this legislation and my concern 
that the last thing we need is more Government stepping into these very 
difficult end-of-life decisions, I am announcing this afternoon that I 
am placing a hold on S. 3788 which would overturn Oregon's unique Death 
with Dignity Act and would, in my view, do great damage to the cause of 
pain management all across our country.
  In the past, the Senate has looked at this only in the context of 
what some describe as assisted suicide. Obviously, there are 
differences of opinion on this issue. The people in my State have been 
debating this for well over a decade and twice have made it clear that 
they believe these decisions ought to be left to the individual and to 
families trying to cope with these difficult circumstances. They have 
sent a strong message that death is an intensely personal and private 
matter and that the Government ought to leave our citizens alone. The 
Government ought not attempt to override or preempt the individual and 
family values, religious beliefs, and wishes.
  What has been debated in Oregon is not all that different from what 
was faced in the Senate when there was a discussion about the case of 
the late Terri Schiavo. I objected on the floor at that time to 
consideration of the original Schiavo legislation, which was an 
extraordinary overreach of Federal power, and today I put a hold on S. 
3788 which would overturn my State's law.
  These are very difficult issues, and many of us are torn with respect 
to how to handle them. I, for example, opposed physician aid in dying 
both as an Oregon voter and as a Senator. When my State originally 
considered the Death with Dignity Act, I worried a great deal about the 
adequacy of the ballot measure safeguards to protect particularly the 
poor and the vulnerable. Now we have 8 years of experience with this 
legislation and, thankfully, my fears with respect to how the 
vulnerable would fare under this legislation have not been realized, 
and the realities are that the safeguards in the law have worked quite 
well in preventing potential abuses.
  Had Oregon acted hastily or without thorough examination and debate, 
I might not be in a position to defend my State's law. But no one can 
accuse my State of acting precipitously in approving this matter. We 
have endured several ballot initiatives, court challenges, and, most 
recently, a challenge that was heard by the U.S. Supreme Court. Each 
time, the will of a majority of Oregonians prevailed. It is that will 
of my State's voters which S. 3788 would overturn.
  During the 8 years the law has been in effect in my home State of 
Oregon, the opponents of the law have combed through the statute 
looking for potential pitfalls. The law still stands because the notion 
of opponents that there would be abuses and a stampede to Oregon have 
not been borne out. In fact, and this obviously could not ever be 
proved, my sense is that there are probably fewer assisted suicides in 
my home State, the only State with a statute, than there are in other 
parts of the country. That is because the real effect of Oregon's Death 
with Dignity Act has been to generate a significant increase in the use 
of hospice and to generate a significant increase in the number of 
people who spend their last days at home with family dealing with these 
issues on their own. So we have not seen this tidal wave of assisted 
suicides in my home State, but what we have seen as a result of all of 
the focus on end-of-life care is a significant increase in folks 
spending their last days through the compassionate services of hospice 
programs and help with their families at home.
  The reality is there is no constitutional issue at stake in this 
discussion with respect to State rights. Historically, defining medical 
practice has been a matter left to the States. What is so ironic is 
that some who come to the floor of the Senate to talk about State 
rights are essentially saying they only believe in State rights if they 
think the State is right.
  This is a matter which Oregonians have decided for themselves. It has 
historically been an issue which has been left to the States.
  In my home State, there was a vigorous discussion around dinner 
tables and at the ballot box, and our State has spoken clearly with 
respect to where we stand on this difficult issue. I do not believe 
that a Senator from another State should seek to overturn another 
State's law based on his personal beliefs.
  We are just a couple of months from Election Day in which local, 
State, and Federal elections will be held. Many States will have 
numerous ballot measures covering every issue imaginable. Voters need 
to know they can debate even the most emotionally wrenching issues 
through the ballot process and have their election results respected. 
The proposed legislation I have put a hold on, S. 3788, sends voters 
the message that if Congress doesn't like the conclusion your State 
comes to through a ballot measure, your vote really doesn't matter. I 
intend to make sure that the votes of the people of my State, on a 
matter that has historically been left to them, will count.
  You can be opposed to physician aid in dying and be opposed to this 
legislation as well. The reason I conclude that, is because I believe 
this proposal will be a huge setback to the cause of pain management in 
every corner of the country, not just in my home State. Like efforts 
before it, S. 3788 seeks to undermine my State's law by amending the 
Controlled Substances Act in order to say that drugs which fall under 
the Controlled Substances Act cannot be used in physician aid in dying. 
The Controlled Substances Act, of course, is legislation Congress 
passed to go after drug kingpins and to make sure that those with 
access to drugs, including doctors and pharmacists and others, do not 
distribute them illegally. The penalties in the Controlled Substances 
Act are substantial. However, the bottom line is the Controlled 
Substances Act was not meant to throw the will of the people of my 
State or any other in the trash can with respect to a medical practice 
involving end-of-life care.
  Like past efforts, the legislation I have put a hold on purports to 
create a safe harbor to protect physicians and others. Sadly, such a 
safe harbor is meaningless because of the realities patients, families, 
doctors, pharmacies, and others face when they are trying 
compassionately to assist a dying patient in that patient's last days. 
Medicine and the use of controlled substances, particularly in the case 
of the dying, is an art, not an exact science. It is not as if you can 
prove scientifically and medically that a dose of a drug in so many 
milligrams can always relieve pain and half a milligram more is going 
to result in death. People are different. Each of these medical 
tragedies is different. The dying often can

[[Page S8921]]

withstand doses of controlled substances that would kill a healthy 
person.
  There are many examples that make it clear that interpretations after 
the fact by law enforcement give physicians great concern with respect 
to how these drugs are used. Second-guessing will deter physicians, 
even physicians who are opposed to assisted suicide, from moving into 
treating pain aggressively.
  During the previous congressional effort to throw out my State's law, 
the New England Journal of Medicine editorialized against that attempt 
out of the very same concern I have reflected today about the impact on 
pain management. The New England Journal of Medicine said:

       Many doctors are concerned about the scrutiny they invite 
     when they prescribe or administer controlled substances and 
     they are hypersensitive to drug-seeking behavior in patients. 
     Patients as well as doctors often have exaggerated fears of 
     addiction and the side effects of narcotics. Congress would 
     make this bad situation worse.

  That is what independent medical authorities said the last time there 
was an effort to pass legislation like the new bill, S. 3788, and it 
holds true as well today.
  I have appreciated Senator Smith's leadership, my colleague from 
Oregon on the other side of the aisle, who joins me with respect to the 
concern about pain management. He and I have introduced the Conquering 
Pain Act to help provide families, patients, and health professionals 
with assistance so that no patient would be left in excruciating pain 
waiting for a doctor's office to open up.
  The reality is, as we saw during the debate involving the late Terri 
Schiavo, Americans have dramatically differing views on this issue, and 
those views are passionately held. But there can be efforts, successful 
efforts, to bring both sides together on this issue. I mentioned the 
Conquering Pain Act Senator Smith and I have sponsored. I also believe 
there should be changes in the Medicare hospice benefit to extend 
opportunities for end-of-life care there. Right now, the Medicare law 
almost forces someone to give up hope for the prospect of recovery in 
order to get the hospice benefit, and I believe that is unfortunate.
  I am almost finished with my remarks. I see my good friend from the 
State of Kentucky here. I would ask unanimous consent at this time--and 
see what is convenient for my colleague from Kentucky--for 5 additional 
minutes to wrap up my remarks, and if that is convenient with the 
Senator from Kentucky, I would make that unanimous consent request.
  The PRESIDING OFFICER (Mr. Voinovich). Without objection, it is so 
ordered.
  Mr. WYDEN. Mr. President, again, just to complete that thought, there 
are ways that both sides in this end-of-life care debate can be brought 
together. I have mentioned several. What I think is clear, after the 
Terri Schiavo discussion, is that the American people don't want the 
Federal Government butting in, interfering, and preempting the ability 
of families and those in their last days to make these judgments. For 
the citizens of my State, the Death With Dignity Act has brought about 
improvement in many areas and encouraged conversations about a wide 
variety of end-of-life options. Those conversations probably wouldn't 
have even taken place if the people of my State hadn't voted for this 
twice. In my State, the end-of-life process has been decriminalized. 
Recognizing the deeply personal nature of this, the Federal Government 
should not decide again, as has been considered before, that this 
should be the province of the Federal Government and not left to 
individuals and families.
  My State has chosen a unique path. Rather than the bitter and 
divisive debate over physician aid in dying--which this country would 
have, once again, if S. 3788 moved forward--I would offer that instead 
the Senate work together on a bipartisan basis to make the end of life 
a better period for all Americans.
  So consistent with the policy I have held of publishing in the 
Congressional Record a statement whenever I put a hold on a piece of 
legislation, I am announcing today my intent to object to any unanimous 
consent agreement concerning S. 3788. The Senate should have learned 
during the debate over the tragic case of Terri Schiavo that the 
American people don't want the Government interfering during these very 
difficult days. S. 3788 would allow just this kind of interference, and 
that is why I will do everything I can to defend Oregon's law against 
this congressional overreaching and respect the message the American 
people sent during the Terri Schiavo debate that there ought to be a 
right to be left alone.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.

                          ____________________