[House Report 106-378]
[From the U.S. Government Publishing Office]



106th Congress                                            Rept. 106-378
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
                   PAIN RELIEF PROMOTION ACT OF 1999

                                _______


                October 13, 1999.--Ordered to be printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2260]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2260) amending the Controlled Substances Act to 
promote pain management and palliative care without permitting 
assisted suicide and euthanasia, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           2
Background and Need for the Legislation....................           2
Hearings...................................................          14
Committee Consideration....................................          14
Vote of the Committee......................................          15
Committee Oversight Findings...............................          21
Committee on Government Reform Findings....................          21
New Budget Authority and Tax Expenditures..................          21
Congressional Budget Office Cost Estimate..................          21
Constitutional Authority Statement.........................          25
Section-by-Section Analysis and Discussion.................          25
Changes in Existing Law Made by the Bill, as Reported......          26
Dissenting Views...........................................          31

                          Purpose and Summary

    H.R. 2260, the Pain Relief Promotion Act of 1999, was 
introduced on June 17, 1999, by a bipartisan group of 68 
cosponsors and enjoys the support of the American Medical 
Association and the National Hospice Organization, among many 
other medical organizations.\1\ H.R. 2260 promotes pain 
management and palliative care through the appropriate use of 
controlled substances, even if such use unintentionally hastens 
death, while reinforcing the uniform application of the 
existing standard that intentionally bringing about the death 
of any person is not a legitimate use of controlled substances 
and is not consistent with public health and safety. H.R. 2260 
also authorizes the Attorney General to carry out educational 
training programs for law enforcement personnel and to promote 
greater understanding of health professionals' legitimate use 
of controlled substances for pain management, while authorizing 
the Agency for Health Care Policy and Research in the 
Department of Health and Human Services to collect and 
disseminate protocols for palliative care. Finally, H.R. 2260 
authorizes a $5,000,000 program under which the Secretary of 
Health and Human Services may award grants to health 
professions schools, hospices and other sites to develop and 
implement palliative care education and training. On June 24, 
1999, the subcommittee conducted a hearing on H.R. 2260. On 
July 20, 1999, the subcommittee passed the bill without 
amendment by a voice vote. On September 14, 1999, the committee 
reported the bill favorably without amendment.
---------------------------------------------------------------------------
    \1\ The bill has the express support of some of the leading medical 
groups in the country such as: American Medical Association, National 
Hospice Organization, Hospice Association of America, American Academy 
of Pain Management, American Society of Anesthesiologists, Physicians 
for Compassionate Care, Christian Medical and Dental Society, Catholic 
Health Association, Hope Hospice and Palliative Care (Florida), 
Americans for Integrity in Palliative Care, American College of 
Osteopathic Family Physicians, Coalition of Concerned Medical 
Professionals and the Oklahoma State Medical Association. The bill has 
also been endorsed by the State of Oregon's largest newspaper, the 
Oregonian.
---------------------------------------------------------------------------

                Background and Need for the Legislation

The Controlled Substances Act and the Role of the Drug Enforcement 
        Administration
    The Controlled Substances Act of 1970 (CSA) provides a 
uniform national standard for the control of potentially 
dangerous drugs, and a system of enforcement and penalties that 
is, in important respects, independent of State law. The CSA 
prohibits any distribution of controlled substances unless the 
distribution is authorized pursuant to a statutory 
exception.\2\ One such exception is distribution pursuant to 
registration by the Attorney General under 21 U.S.C. Sec. 823. 
Physicians and pharmacists may apply to the Drug Enforcement 
Administration (DEA) for a Federal license to prescribe and 
administer controlled substances. The primary role of 

DEA with respect to pharmaceutical controlled substances is to 
prevent, detect, and investigate their diversion from 
legitimate uses while ensuring their availability for 
legitimate medical use.\3\ While physicians receive their 
licenses to practice medicine from State medical boards, they 
receive this separate registration to prescribe controlled 
substances from the DEA.\4\ Prescriptions for these potentially 
dangerous drugs must be written using DEA registrations on DEA 
prescription forms.
---------------------------------------------------------------------------
    \2\ According to 21 U.S.C. Sec. 841, it is ``unlawful for any 
person [to] knowingly or intentionally . . . distribute, or dispense . 
. . a controlled substance'' . . . ``[e]xcept as authorized by this 
subchapter [Control and Enforcement, Sec. Sec. 801-904].''
    \3\ All DEA policies, procedures, and investigative programs with 
respect to this issue are guided by the underlying principle stated in 
the Code of Federal Regulations which links the validity of any 
prescription for a controlled substance to the requirement that it be 
``issued for a legitimate medical purpose by an individual practitioner 
acting in the usual course of his professional practice.'' 21 C.F.R. 
Sec. 1306.04.
    \4\ As Congress declared in 1984 when it last revised this part of 
the CSA:

      Registration of a physician under the Controlled Substances 
      Act is a matter entirely separate from a physician's State 
      license to practice medicine. Therefore, revocation of 
      registration only precludes a physician from dispensing 
      substances controlled under the Controlled Substances Act 
      and does not preclude his dispensing other prescription 
---------------------------------------------------------------------------
      drugs or his continued practice of medicine.

S. Rep. No. 98-225, at 267 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 
3449 n. 40.
    The CSA was amended in 1984 to strengthen the DEA's ability 
to prevent diversion of federally regulated prescription drugs 
for illicit purposes.\5\ The chief concern cited as 
justification for the 1984 amendments was the potential of 
controlled substances to cause physical harm and death when 
used for something other than a legitimate medical purpose. 
According to Representative Hughes, the chief House sponsor of 
the measure, ``The bill gives to DEA greater latitude to 
suspend or revoke the registration of a practitioner who 
dispenses drugs in a manner that threatens the public health 
and safety.'' \6\ The 1984 amendments were designed to give the 
DEA more independent authority to revoke a physician's 
registration in cases where a State was unable or unwilling to 
intervene.\7\ The amendments authorized the DEA to revoke a 
physician's registration where the registration is deemed 
``inconsistent with the public interest''--in cases where, for 
example, controlled substances have been misused to endanger 
``public health and safety.'' \8\
---------------------------------------------------------------------------
    \5\ The amendments were approved by the U.S. Senate 91-to-1 on 
February 2, 1984 as part of a Comprehensive Crime Control Act (S. 
1762). Almost identical language was approved by the House 392-to-1 on 
September 18, 1984. The House and Senate versions were reconciled and 
ultimately approved as part of H.J. Res. 648, a continuing resolution 
which became law on October 12, 1984 (Pub. L. No. 98-473, 98 Stat. 
1987).
    \6\ 130 Cong. Rec. 25,849 (1984). Representative Hughes also cited 
a government study indicating that ``prescription drugs are responsible 
for close to 70 percent of the deaths and injuries due to drug abuse.'' 
Id. at 25,848.
    \7\ Representative Hamilton Fish, another sponsor of the 
amendments, said giving such flexibility to the Federal Government was 
necessary because States often did not respond adequately to these 
abuses: ``State policing of these activities, as well as peer review 
within the profession, have not been adequate control measures. State 
laws regarding the dispensing of controlled substances are also 
inadequate.'' Id. at 25,849.
---------------------------------------------------------------------------
  At a hearing before the House Commerce Subcommittee on Health and the 
Environment, the DEA called the expanded Federal authority to revoke 
practitioner registration ``one of the most important sections of the 
bill,'' not only because States were often ill-equipped to enforce 
their own drug laws but also because ``many controlled drug violations 
involving prescription drugs are not felonies under State law and 
therefore cannot be used in a DEA revocation action'' under then-
existing law. Dangerous Drug Diversion Control Act of 1984: Hearing on 
H.R. 5656 Before the Subcomm. On Health and the Env't of the House 
Comm. On Energy and Commerce, 98th Cong. 404 (1984) (statement of Gene 
R. Haislip, Deputy Assistant Administrator, Drug Enforcement 
Administration).
---------------------------------------------------------------------------
    \8\ As Representative Charles Rangel said in support of the 
amendments:

      Under current law, the DEA must register physicians, 
      pharmacies, or other practitioners if they are authorized 
      to dispense drugs by the law of the State in which they 
      practice. . . . The public interest standard added by H.R. 
      5656 will provide greater flexibility to deny or revoke 
---------------------------------------------------------------------------
      registrations in the most egregious cases.

130 Cong. Rec. 25,852 (1984).
    21 U.S.C. Sec. 823 of the CSA sets forth registration 
requirements for controlled substances licenses and Sec. 824 
sets forth grounds for revocation. Physicians who abuse their 
registrations and prescribe controlled substances for non-
medical purposes are subject to license revocation under 
Sec. 824 and to potential criminal prosecution under 
Sec. 841.\9\ Section 823 provides that the Attorney General may 
deny an application for registration ``if such registration 
would be inconsistent with the public interest'' as determined 
by consideration of several factors.\10\
---------------------------------------------------------------------------
    \9\ In practice, a criminal proceeding is almost never initiated. 
Instead, an administrative penalty is applied (simply revoking or 
suspending the physician's special Federal privilege to handle 
controlled substances), and this effectively prevents further illicit 
use. Typically, the DEA does not initiate action at all until after the 
State has acted against a registrant.
    \10\ 21 U.S.C. Sec. 824(a)(4) provides that one of the grounds for 
revocation is the commission of ``such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.''
---------------------------------------------------------------------------
    Two of the factors listed under Sec. 823 that are relevant 
to assisted suicide are: compliance with State law relating to 
controlled substances (21 U.S.C. Sec. 823 (f)(4)), and the 
public health and safety (21 U.S.C. Sec. 823 (f)(5)). Most 
States specifically prohibit assisted suicide; no State has 
authorized assisted suicide except Oregon.\11\ Public health 
and safety has been invoked as separate grounds for revoking 
the registrations of physicians who prescribe drugs used in 
lethal overdoses.\12\ In some cases, the physicians were found 
to have been negligently involved in suicides or attempted 
suicides.\13\ Each of these cases was theoretically a candidate 
for criminal prosecution under Sec. 841, but, apparently, no 
federal criminal prosecution followed. Even where physicians 
were previously convicted of manslaughter under State law for 
negligent and reckless involvement in a suicide or other lethal 
overdose, the separate Federal standard of ``public health and 
safety'' was the basis upon which the registration was revoked 
and, in one case, reinstatement repeatedly denied.\14\
---------------------------------------------------------------------------
    \11\ Currently, 44 States prohibit assisted suicide, either through 
statutes or common law. Thirty-eight States prohibit assisted suicide 
through statutes: Alaska (Act 97-187; 1997 Session Laws), Arizona 
(Ariz. Rev. Stat. Ann., Sec. 13-1103(A)(3) (West Supp. 1996-1997)), 
Arkansas (Ark. Code Ann., Sec. 5-10-104(a)(2) (1993)), California (Cal. 
Penal Code, Sec. 401 (West 1988)), Colorado (Colo. Rev. Stat. Sec. 18-
3-104(1)(6) (Supp. 1996)), Connecticut (Conn. Gen. Stat. Sec. 53a-
56(a)(2) (1997)), Delaware (Del. Code Ann., tit. 11, Sec. 645 (1995)), 
Florida (Fla. Stat. Sec. 782.08 (West 1992)), Georgia (Ga. Code Ann., 
Sec. 16-5-5(b) (1996)), Hawaii (Haw. Rev. Stat. Sec. 707-702(1)(6) 
1993)), Illinois (Ill. Comp. Stat., ch. 720, Sec. 5/12-31(a)(2) (Smith-
Hurd Supp. 1996)), Indiana (Ind. Stat. Ann., Sec. Sec. 35-42-1-2 to 35-
42-1-2.5 (1994 and Supp. 1996)), Iowa (Iowa Code Ann. Sec. Sec. 707A.2, 
707A.3 (Supp. 1997)), Kansas (Kan. Stat. Ann., Sec. 21-3406 (1995)), 
Kentucky (Ky. Rev. Stat. Ann., Sec. 216.302 (Michie 1994), Louisiana 
(La. Rev. Stat. Ann., Sec. 14:32.12 (West Supp. 1997)), Maine (Me. Rev. 
Stat. Ann., tit. 17-A, Sec. 204 (West 1983)), Maryland (1999 Md. Laws 
700), Michigan (Mich. Comp. Laws Ann., Sec. 752.1027 (West Supp. 1997-
1998)), Minnesota (Minn. Stat. Ann., Sec. 609.215 (West 1987 and Supp. 
1996)), Mississippi (Miss. Code Ann., Sec. 97-3-49 (1994)), Missouri 
(Mo. Ann. Stat., Sec. 565.023(1)(2) (West Supp. 1996)), Montana (Mont. 
Code Ann., Sec. 45-5-105 (1995)), Nebraska (Neb. Rev. Stat. Ann., 
Sec. 28-307 (Michie 1995)), New Hampshire (N.H. Rev. Stat. Ann., 
Sec. 630:4 (1996)), New Jersey (N.J. Stat. Ann., Sec. 2C:11-6 (West 
1995)), New Mexico (N.M. Stat. Ann., Sec. 30-2-4 (Michie 1994)), New 
York (N.Y. Penal Law, Sec. Sec. 120.30, 125.15(3) (McKenney, 1987)), 
North Dakota (N.D. Cent. Code, Sec. 12.1-16-04 (Supp. 1995)), Oklahoma 
(Okla. Stat. Ann., tit. 21, Sec. Sec. 813, 814, 815 (West 1983)), 
Pennsylvania (Pa. Cons. Stat. Ann., tit. 18, Sec. 2505(b) (West 1983)), 
Rhode Island (R.I. Gen. Laws Sec. Sec. 11-60-1 through 11-60-8 (Supp. 
1996)), South Carolina (S.C. Code Ann., Sec. 16-3-1090 (1998)), South 
Dakota (S.D. Certified Laws Ann., Sec. 22-16-37 (Michie 1988)), 
Tennessee (Tenn. Code Ann., Sec. 39-13-216 (Supp. 1995)), Texas (Tex. 
Penal Code Ann., Sec. 22.08 (West 1994)), Virginia (Va. Code Ann., 
Sec. 8.01-622.1 (Michie 1999)), Washington (Wash. Rev. Code Ann., 
Sec. 9A.36.060 (West 1988)), Wisconsin (Wis. Stat. Ann., Sec. 940.12 
(West 1996)). Six States criminalize assisted suicide through common 
law: Alabama, Idaho, Massachusetts, Nevada, Vermont, and West Virginia. 
Issue Brief, Health Policy Tracking Service, National Conference of 
State Legislature, (Sept. 17, 1999) (Maria Rothoner and Elizabeth 
Kaiser).
    \12\ See, e.g., Denial of Registration of Dr. Samuel Fertig, 49 
Fed. Reg. 6577 (Feb. 22, 1984) (denied a registration for prescribing 
massive quantities of controlled substances to several young people who 
used them in lethal overdoses, despite fact that state license had been 
restored, on grounds that he ``was responsible, directly or indirectly, 
for the deaths of several young people''); Revocation of Registration 
of Dr. Murray Walker, 55 Fed. Reg. 5306 (Feb. 14, 1990) (registration 
revoked for prescribing Percodan for non-medical purposes to several 
people, one of whom died of an overdose, the DEA stating, ``Substances 
are controlled because they are potentially dangerous and therefore 
should be handled with extreme care. Respondent has failed to exercise 
such care and, as a result, has ignored his duties as a health care 
professional to protect the public health and safety from the illicit 
use of these drugs.'') See 21 U.S.C. Sec. 824(c) for the procedure for 
such a suspension or revocation, and 21 U.S.C. Sec. 824(d) for the 
authority to ``suspend any registration simultaneously with the 
institution of proceedings under this section, in cases where [the 
Attorney General] finds that there is an imminent danger to the public 
health or safety.''
    \13\ See, e.g., Denial of Registration of Dr. Pompeyo Q. Braga 
Bonado, 55 Fed. Reg. 37579 (Sept. 12, 1990). Here, the DEA found that 
granting a registration to this physician would be ``clearly contrary 
to the public interest.'' Id. at 37580. The physician had prescribed 
controlled substances to several individuals ``for no legitimate 
medical purpose,'' including to one man addicted to Percocet who was 
hospitalized after a suicide attempt. ``As a health care professional 
and DEA registrant,'' the DEA stated, ``Respondent bears a heavy 
responsibility to ensure that the controlled substances he prescribes 
are not abused.'' Id. at 37580.
    \14\ In the case of Revocation of Registration of Hugh Schade, 
M.D., 60 Fed. Reg. 56354 (Nov. 8, 1995). Dr. Schade gave potentially 
lethal amounts of Darvocet to a depressed patient who used them to 
commit suicide. Giving these drugs to a patient in this mental state, 
said one expert witness, was ``like handing him a loaded gun.'' While 
Dr. Schade was also convicted of negligent homicide under state law 
because of this case, his DEA application was denied not on the basis 
that he had violated a state law, but on the separate basis that his 
conduct objectively threatened ``public health and safety''.
---------------------------------------------------------------------------
  In the case of Revocation of Registration of David W. Bradway, M.D., 
48 Fed. Reg. 49937 (Oct. 28, 1983), the physician's registration was 
revoked after conviction under state law on various counts, most 
notably ``one count of manslaughter by unlawfully distributing 
controlled substances in such a grossly negligent [and] reckless manner 
as to cause the death of an individual'' Id. at 49937. Years later, 
after allegedly rehabilitating and resuming medical practice, the 
physician applied for a new DEA registration; citing the fact that ``a 
death was directly attributable to Respondent's misuse of his DEA 
Certificate of Registration,'' the DEA denied the application, stating: 
``It is the position of the DEA that a Certificate of Registration to 
handle controlled substances is a privilege, not a right, and it should 
only be granted to doctors who have demonstrated high standards of 
ethical conduct and who are completely trustworthy in handling 
dangerous controlled substances which, as can be seen in this case, can 
have a devastating impact on individuals who abuse them.'' 54 Fed. Reg. 
at 53384. In 1992 he again applied for a DEA registration, but due to 
``the egregious nature of Respondent's past conduct,'' the DEA ruled in 
1994 (15 years after the patient's death) that ``the registration of 
the Respondent is still not in the public interest''. Id. at 6299.
Chronology of Events Preceding H.R. 2260
    On November 8, 1994, Oregon voters approved Ballot Measure 
16, legalizing physician-assisted suicide, by a margin of 51% 
to 49%.\15\ On November 27, 1994, however, a lawsuit was filed 
against the Death with Dignity Act on equal protection and due 
process grounds.\16\ On August 3, 1995, the law was held 
unconstitutional as a violation of the Equal Protection Clause. 
The State appealed the decision, and on February 27, 1997, the 
Ninth Circuit overturned the ruling on the basis of the 
plaintiffs' lack of standing.\17\ On October 27, 1997, the 
Ninth Circuit lifted the injunction against the Act. On 
November 4, 1997, Oregon voters rejected a referendum asking 
for the repeal of the Act \18\ and the measure was implemented 
at that time.
---------------------------------------------------------------------------
    \15\ See Spencer Heinz, Assisted Suicide: Advocates Weigh In, 
Oregonian, Dec. 9, 1994, at A1.
    \16\ See Lee v. Oregon, 891 F. Supp. 1429, 1431 (D. Or. 1995). 
Federal District Court Judge Michael Hogan agreed with the opponents 
and issued a temporary restraining order against implementation of the 
Act on the day before it was to go into effect, pending a full hearing 
of their claims. On December 27, 1994, Judge Hogan replaced his 
temporary restraining order with a preliminary injunction, further 
delaying implementation of the Act.
    \17\ On May 16,1997, a petition for writ of certiorari was filed 
with the United States Supreme Court, and the Court denied the petition 
on October 14, 1997.
    \18\ The referendum failed by a vote of 60% to 40%.
---------------------------------------------------------------------------
    During the litigation over Oregon's assisted suicide law, 
Congress debated the issue of Federal funding for assisted 
suicide. On April 30, 1997, after a vote of 398-16 in the House 
and a unanimous vote in the Senate, the President signed the 
Assisted Suicide Funding Restriction Act of 1997,\19\ which 
prohibits the use of Federal funds to cause a patient's death. 
The Act effectively prohibits the practice of assisted suicide 
in Federal health facilities, removes it from the scope of 
``treatments'' on which patients must be informed under the 
Federal Patient Self-Determination Act, and forbids Federal 
subsidies to health programs or benefit packages which include 
assisted suicide. President Clinton lauded the bill, saying it 
``will allow the Federal Government to speak with a clear voice 
in opposing these practices,'' and warning that ``to endorse 
assisted suicide would set us on a disturbing and perhaps 
dangerous path.'' \20\
---------------------------------------------------------------------------
    \19\ 42 U.S.C. Sec. 14401.
    \20\ Statement by President William Jefferson Clinton Upon Signing 
H.R. 1003, 33 Weekly Comp. Pres. Doc. 617 (May 5, 1997).
---------------------------------------------------------------------------
    Also in 1997, the Supreme Court reviewed two Circuit Court 
of Appeal rulings regarding the assisted suicide laws of New 
York and Washington, and concluded that laws prohibiting 
assisted suicide do not violate the U.S. Constitution. The 
Solicitor General of the United States filed briefs as amicus 
curiae opposing the overturning of the State laws in each 
case.\21\ In his brief in the Glucksberg case, the Solicitor 
General asserted that there is a clear ethical and legal 
distinction between pain control that unintentionally hastens 
death and the prescribing of lethal drugs with the intent to 
cause death:
---------------------------------------------------------------------------
    \21\ Brief for the United States as Amicus Curiae Supporting 
Petitioners at 17-18, Washington v. Glucksberg, 521 U.S. 702 (1997) 
(No. 96-110). Relevant portions of the Glucksberg brief are as follows: 
Health facilities controlled by the Federal Government ``do not permit 
physicians to assist patients in committing suicide by providing lethal 
dosages of medication.'' Id. at 1; ``Overriding State interests justify 
the State's decision to ban physicians from prescribing lethal 
medication.'' Id. at 9; ``There is an important and common-sense 
distinction between withdrawing artificial supports so that a disease 
will progress to its inevitable end, and providing chemicals to be used 
to kill someone.'' Id.; ``Once a State decides to create an exception 
to its prohibition against assisted suicide, there is no obvious 
stopping point.'' Id. at 10; ``One special source of concern is that 
terminally ill persons who contemplate suicide often suffer from 
undiagnosed depression and inadequately treated pain . . . In most 
cases, once appropriate treatment is provided, the desire for suicide 
abates.'' Id. at 19; ``Any exception to the ban on assisted suicide 
therefore runs a very significant risk that persons with treatable 
depression and pain will be allowed to commit suicide. A State has an 
overriding interest in avoiding that risk and in protecting persons who 
would want to remain alive if provided with the appropriate 
treatment.'' Id. at 20; ``Another area of concern is that terminally 
ill patients are often extremely vulnerable and susceptible to 
influence by physicians, family members, and others on whom they depend 
for support... The point is not that physicians or family members will 
attempt to coerce persons into committing suicide, although there may 
be some cases of that. The real dangers are much more subtle and 
extremely difficult to monitor and address.'' Id.; ``Another difficulty 
with permitting doctors to prescribe lethal drugs for terminally ill 
patients is that illnesses can be misdiagnosed as terminal . . . If the 
State were to create an exception to its ban on assisted suicide for 
terminally ill adults, such a misdiagnosis could have tragic 
consequences . . . The State has an overwhelmingly strong interest in 
preventing such tragedies from occurring.'' Id. at 22; In the 
Netherlands, which allowed assisted suicide with safeguards, ``a recent 
study shows that those procedural safeguards have not worked.'' Id. at 
23; ``[T]here is a very significant distinction between removing 
artificial supports--and thereby allowing the underlying disease to 
progress to its inevitable end--and providing chemicals to kill 
someone. In one case, the cause of death can reasonably be viewed as 
the underlying disease; in the other, the cause of death can only be 
viewed as the lethal medication.'' Id. at 24; ``Once a legislature 
abandons a categorical prohibition against physician assisted suicide, 
there is no obvious stopping point.'' Id. at 26.
---------------------------------------------------------------------------
  Similarly, after reviewing various Federal policies that forbid 
physician assisted suicide (as defined above) in VA hospitals, military 
hospitals, NIH, and Indian Health Service, the Solicitor General's 
amicus brief in Vacco v. Quill stated: ``No Federal law authorizes or 
encourages physician assisted suicide.'' Brief for the United States as 
Amicus Curiae Supporting Petitioners at 2, Vacco v. Quill, 521 U.S. 793 
(1997) (No. 95-1858); ``To let a patient die is to acknowledge the 
futility of further medical treatment and to let nature run its course 
. . . Physician prescribed lethal medication, in contrast, provides its 
own fatal pathology.'' Id. at 10; ``The medical profession recognizes 
ethical distinctions between discontinuing unwanted, futile treatments 
and using the tools of medicine to cause a patient's death.'' Id. at 11 
(citing the AMA); ``With the provision of lethal medication, the 
physician provides the cause of the patient's death.'' Id. at 12.

        [T]he ethical standards of the medical community have 
        long permitted physicians to prescribe medication in 
        sufficient doses to relieve pain, even when the 
        necessary dose will hasten death . . . So long as the 
        physician's intent is to relieve pain, and not to cause 
        death, such treatment does not violate the ethical 
        standards of the medical community.\22\
---------------------------------------------------------------------------
    \22\ Glucksberg, 521 U.S. at 17

    Importantly, the Solicitor General also asserted that ``no 
Federal law . . . either authorizes or accommodates physician 
assisted suicide.'' \23\
---------------------------------------------------------------------------
    \23\ Solicitor General's Amicus Brief at 2, Glucksberg (No. 96-
110).
---------------------------------------------------------------------------
    After Oregon's law was enacted, Judiciary Committee 
Chairman Henry J. Hyde inquired of the Administrator of the 
DEA, Thomas K. Constantine, whether Oregon's new law would have 
any impact on the administration of the CSA. Administrator 
Constantine replied on November 5, 1997, declaring physician 
assisted suicide with the use of federally controlled 
substances to be inconsistent with the CSA.\24\ Under the DEA 
ruling, doctors given a Federal license under the CSA to 
prescribe federally controlled substances could not prescribe 
them for the purpose of assisting in a suicide. Constantine 
agreed with the sentiment of many members of Congress that 
administering a drug to deliberately cause someone to die is 
not a ``legitimate medical purpose'' within the meaning of the 
Controlled Substances Act.\25\
---------------------------------------------------------------------------
    \24\ Letter from The Honorable Thomas K. Constantine, Administrator 
of the Drug Enforcement Administration of the United States, to 
Chairman Henry J. Hyde, Committee on the Judiciary, U.S. House of 
Representatives (Nov. 5, 1997).
    \25\ Administrator Constantine concluded in his letter to Chairman 
Hyde that, ``delivering, dispensing, or prescribing a controlled 
substance with the intent of assisting a suicide would not be under any 
current definition a legitimate medical purpose.'' Id.
---------------------------------------------------------------------------
    On June 5, 1998, however, the Attorney General of the 
United States ruled that administering controlled substances 
for the purpose of causing death is to be considered part of 
the ordinary practice of medicine in Oregon and, therefore, 
exempt from CSA and DEA jurisdiction. Under the Attorney 
General's ruling, the CSA is enforceable against the use of 
controlled substances for assisted suicide in Oregon only to 
the extent that physicians do not comply with the provisions of 
Oregon's law.\26\ Under Attorney General Reno's ruling, a DEA 
registration cannot be denied, revoked, or suspended in the 
case of ``a physician who has assisted in a suicide in 
compliance with Oregon law.'' \27\ ``Adverse action against a 
physician who has assisted in a suicide in full compliance with 
the Oregon Act would not be authorized by the CSA.'' \28\ DEA 
investigation would therefore focus not on whether controlled 
substances have been used to take human life, but on whether 
human life has been destroyed in conformance with Oregon law. 
The Attorney General's ruling commits the DEA to a role to 
which it has never been assigned under the CSA--that of 
regulating assisted suicide as a ``legitimate medical 
practice.'' This is a sharp departure from the intended 
purposes of the Controlled Substances Act, and from the policy 
required in all other Federal programs under the Assisted 
Suicide Funding Restriction Act.
---------------------------------------------------------------------------
    \26\ In her letter to Chairman Hyde, however, Attorney General 
Janet Reno failed to mention the existing regulatory requirement that 
practitioners prescribe federally controlled substances only for a 
``legitimate medical purpose'':

      The CSA is a complex regulatory scheme that controls the 
      authorized distribution of scheduled drugs. Physicians, for 
      example, are authorized to prescribe and distribute 
      scheduled drugs only pursuant to their registration with 
      the DEA, and the unauthorized distribution of drugs is 
      generally subject to criminal and administrative action. 
      The relevant provisions of the CSA provide criminal 
      penalties for physicians who dispense controlled substances 
      beyond ``the course of professional practice,'' 21 U.S.C. 
      Sec. 802(21), see Id. Sec. 841(b), and provide for 
      revocation of the DEA drug registrations of physicians who 
      have engaged either in such criminal conduct or in other 
      ``conduct which may threaten the public health and 
---------------------------------------------------------------------------
      safety.'' Id. Sec. 823(f).

Letter from The Honorable Janet Reno, Attorney General of the United 
States, to Chairman Henry J. Hyde, Committee on the Judiciary, U.S. 
House of Representatives (June 5, 1998).
---------------------------------------------------------------------------
    \27\ Id.
    \28\ Id.
---------------------------------------------------------------------------
    Congressmen Henry Hyde and James Oberstar introduced a bill 
on June 5, 1998, in the 105th Congress, to address the problems 
created by the Attorney General's ruling. That bill, H.R. 4006, 
was reported out of committee but no further action was taken. 
H.R. 2260 was introduced in the 106th Congress on June 17, 1999 
by Congressmen Henry Hyde and Bart Stupak.
Oregon's Assisted Suicide Law
    On February 17, 1999, the Oregon Health Division released a 
report detailing the first full year under Oregon's physician-
assisted suicide law. Twenty-three individuals received lethal 
substances in 1998 pursuant to the Act, while fifteen actually 
used the substances to cause their deaths.\30\ Thirteen had 
cancer, one had a chronic lung condition and one had congestive 
heart failure. Only fourteen had lived in Oregon for at least 
six months.
---------------------------------------------------------------------------
    \30\ Of these fifteen, eight were men and seven were women. Of the 
eight who did not use the medication, six died from their own illnesses 
before taking the drugs and two were alive as of January 1, 1999.
---------------------------------------------------------------------------
    The report is lacking in several respects. It does not 
provide objective information about the extent to which 
physicians have complied with the law, but, instead, relies 
heavily on physician self-reporting. This deficiency in 
objective reporting is exacerbated by the fact that the law 
itself is governed by a ``good faith'' standard that protects 
physicians from civil, professional, and criminal liability so 
long as they believe ``in good faith'' that they have complied 
with the guidelines.\31\ The report makes no serious effort to 
uncover the extent of covert assisted-suicide,\32\ and the 
law's confidentiality requirements \33\ and its provision 
barring notification of family members without a patient's 
express consent \34\ make it very unlikely that abuses will be 
discovered.\35\
---------------------------------------------------------------------------
    \31\ Or. Rev. Stat. Sec. 127.885 (1997). The governor of Oregon has 
testified that he knows of no State penalties for violating the State 
guidelines. Lethal Drug Abuse Prevention Act: Hearing on H.R. 4006 
Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 105th Cong. (July 14, 1998) (oral statement of Gov. John 
Kitzhaber). An Oregon physician generally acknowledged to have 
performed active euthanasia without his patient's consent (still a 
homicide under Oregon law) was declared ``unprosecutable'' by State 
officials because of the climate created by the Oregon law permitting 
assisted suicide. See Doctor won't be prosecuted, The Bulletin (Bend, 
OR), Dec. 11, 1997, at 7.
    \32\ Upon releasing the report, the Oregon Health Division 
distributed a memorandum to State employees stating that any employee 
who reveals that a physician-assisted death has occurred in his or her 
county ``will immediately be terminated.'' Death with Dignity 
Memorandum from Sharon Rice, Manager Registration Unit, Center for 
Health Statistics of the Oregon Health Division, to County Vital 
Records Registrars and Deputies (Dec. 12, 1997) reprinted in 
Confidentiality of Death Certificates, 14 Issues in Law & Med. 333, 334 
(1998). This memorandum indicates that the real purpose of this report 
might have been something other than the discovery and disclosure of 
all relevant information.
    \33\ Or. Rev. Stat. Sec. 127.865 (1997).
    \34\ Or. Rev. Stat. Sec. 127.835 (1997).
    \35\ Another factor worthy of note is that, during the first year 
of the assisted suicide law's operation, the Oregon Health Plan placed 
barriers to the funding of antidepressants (Jeanette Hamby, The Enemy 
Within: State Bureaucratic Rules Threaten the Spirit of Oregon Health 
Plan's Founding Principles, Oregonian, Jan. 21, 1998), restricted the 
availability of mental health services (Joe Rojas-Burke, Survey Gives 
Oregon Health Plan High Marks, Oregonian, Feb. 3, 1999, at B15), and 
restricted pain medication for poor and disabled patients (Diane 
Gianelli, Suicide Opponents Rip Oregon Medicaid Pain Control Policy, 
American Medical News, Sept. 28, 1998). By contrast, Oregon fully funds 
assisted suicide. See Pain Relief Promotion Act of 1999, Hearing on 
H.R. 2260 Before the Subcomm. on the Constitution of the House Comm. on 
the Judiciary, 106th Cong. (June 24, 1999) (statement of N. Gregory 
Hamilton, M.D., President of Physicians for Compassionate Care) 
<> [hereinafter cited as 
Hamilton Testimony]. Some private Health Maintenance Organizations have 
begun to place caps on in-home palliative care while fully funding 
assisted suicide. Id.
---------------------------------------------------------------------------
    Significantly, the report fails to provide any meaningful 
information on the mental state of the patients. Under the 
Oregon law, physicians are to assist suicides only in cases 
where a patient is expected to die in six months,\36\ yet 
physicians generally concede, and the professional literature 
confirms, that such predictions of life expectancy are 
unreliable.\37\ In addition, physicians are to assist suicides 
only in cases where a patient is not suffering from ``a 
psychiatric or psychological disorder, or depression causing 
impaired judgment.'' \38\ Most physicians are ill-equipped to 
detect depression in their patients at all, much less to 
determine what level of clinical depression is sufficient to 
cause ``impaired judgment.'' \39\
---------------------------------------------------------------------------
    \36\ Or. Rev. Stat. Sec. 127.800, 127.805 (1997).
    \37\ Joanne Lynn et al., Defining the ``Terminally Ill'': Insights 
from SUPPORT, 35 Duquesne Law Review 311 (1996); Eric Chevlen, The 
Limits of Prognostication, 35 Duquesne Law Review 337 (1996); R.A. 
Pearlman, Inaccurate Predictions of Life Expectancy, 148 Archives of 
Internal Medicine 2537 (1988).
    \38\ Or. Rev. Stat. Sec. 127.825 (1997).
    \39\ Lethal Drug Abuse Prevention Act: Hearing on H.R. 4006 before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
105th Cong., 2d Sess. (July 14, 1998) (oral statement of Dr. Herbert 
Hendin). See also, When Death is Sought: Assisted Suicide and 
Euthanasia in the Medical Context, New York State Task Force on Life 
and the Law (May 1994), 126-8. The chief author of the Oregon law has 
written somewhat chillingly that ``depression in itself does not rule 
out the physician's assistance'' under the Act. See Cheryl K. Smith, 
Safeguards for Physician-assisted Suicide: The Oregon Death with 
Dignity Act, in Death, Dying and the Law 75 (S. McLean ed., 1996).
---------------------------------------------------------------------------
    Specific omissions highlight the untrustworthiness of the 
report. The report fails to mention that the first publicly-
reported case of assisted suicide in the State involved an out-
of-State woman who was found to be depressed by one doctor she 
consulted. Within three weeks of contacting Compassion in Dying 
and moving to Oregon, she was dead by lethal overdose. 
Significantly, while two doctors had rendered opinions against 
the assisted suicide, including a physician who believed the 
woman was suffering from clinical depression, these opinions 
were not included in the report.\40\
---------------------------------------------------------------------------
    \40\ See Herbert Hendin et al., Physician-Assisted Suicide: 
Reflections on Oregon's First Case, 14 Issues in Law & Med. 243 (1998).
---------------------------------------------------------------------------
The Pain Relief Promotion Act of 1999
            Palliative Care is a Legitimate Medical Purpose for 
                    Controlled Substances
    In Title I, The Pain Relief Promotion Act amends the CSA to 
expressly permit and encourage the use of controlled substances 
for pain management and palliative care, even where such use 
might unintentionally hasten death.\41\ H.R. 2260 would include 
in the CSA for the first time an endorsement of pain control as 
a ``legitimate medical purpose'' for the use of controlled 
substances. Until now, such affirmations have been relegated to 
documents, such as physicians' manuals, which do not have the 
force of law.
---------------------------------------------------------------------------
    \41\ Because the language of H.R. 2260 applies only to dispensing, 
distributing, or administering controlled substances, it can only apply 
to schedule II, III, IV, or V drugs. Schedule I drugs, such as 
marihuana (21 C.F.R. section 1308.11(d)(19)), may not be dispensed for 
any reason but may be used only for approved research. 21 U.S.C. 
section 823(f) provides, ``The Attorney General shall register 
practitioners (including pharmacies, as distinguished from pharmacists) 
to dispense, or conduct research with, controlled substances in 
schedule II, III, IV, or V, if the applicant is authorized to dispense, 
or conduct research with respect to, controlled substances under the 
laws of the State in which he practices. The Attorney General may deny 
an application for such registration if he determines that the issuance 
of such registration would be inconsistent with the public interest. In 
determining the public interest, the following factors shall be 
considered: . . . (5) such other factors as may be relevant to and 
consistent with the public health and safety.'' By contrast, the only 
provision authorizing registration of practitioners with respect to 
schedule I controlled substances is for research: ``Registration 
applications by practitioners wishing to conduct research with 
controlled substances in schedule I shall be referred to the Secretary, 
who shall determine qualifications and competency of each practitioner 
requesting registration.'' Id. Thus, a physician's or pharmacist's 
registration to dispense controlled substances under 21 U.S.C. section 
823 does not apply to or authorize dispensing marihuana since it is a 
schedule I controlled substance.
---------------------------------------------------------------------------
    Section 303(i)(1) of the CSA as amended by H.R. 2260 would 
read:

        For purposes of this Act and any regulations to 
        implement this Act, alleviating pain or discomfort in 
        the usual course of professional practice is a 
        legitimate medical purpose for the dispensing, 
        distributing, or administering of a controlled 
        substance that is consistent with public health and 
        safety, even if the use of such a substance may 
        increase the risk of death.

This text makes clear that practitioners may legally dispense 
controlled substances to alleviate pain and discomfort. By 
defining the alleviation of pain or discomfort as a legitimate 
medical purpose, H.R. 2260 protects practitioners from undue 
scrutiny or suspicion when they exercise their professional 
judgment in determining how most effectively to relieve pain. 
H.R. 2260 further reaffirms that the CSA does not authorize the 
use of controlled substances for assisting suicide. Section 
303(i)(1) of the CSA as amended would read: ``Nothing in this 
section authorizes intentionally dispensing, distributing, or 
administering a controlled substance for the purpose of causing 
death or assisting another person in causing death.''
    H.R. 2260 thus codifies what is sometimes called the 
``principle of double effect'' with regard to the use of 
federally controlled substances. \42\ The distinction between 
intended and unintended hastening of death enjoys broad support 
in codes of medical ethics as well as in the Assisted Suicide 
Funding Restriction Act of 1997.\43\ Many States have passed 
laws banning assisted suicide, including provisions 
specifically emphasizing the distinction between assisted 
suicide and unintentional hastening of death in the course of 
pain control. In upholding New York's law against assisted 
suicide, the U.S. Supreme Court noted:
---------------------------------------------------------------------------
    \42\ The subcommittee heard testimony from a doctor specializing in 
hospice care who described actions intended to cause death and 
contrasted them with the way in which controlled substances were used 
to attempt to ease the pain of an AIDS patient where death was 
unintended. Causing a patient's death requires a sudden massive 
overdose of potentially dangerous drugs. Pain control involves 
carefully adjusting dosage until it achieves relief of pain with a 
minimum of side-effects. This gradual adjustment of dosage is exactly 
what must be avoided if one's intent is to kill--because patients 
quickly build up a resistance to side-effects such as the suppression 
of breathing. See Pain Relief Promotion Act of 1999: Hearing on H.R. 
2260 Before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 106th Cong. 2 (June 24, 1999) (statement of Walter R. 
Hunter, M.D., VistaCare Hospice) <> [hereinafter cited as Hunter Testimony].
---------------------------------------------------------------------------
  According to Dr. Walter Hunter:

      On a Monday morning the hospice for whom I worked received 
      a phone call from his family that he was having difficulty 
      breathing. His nurse and I made a house call. When we 
      entered the room we could hear his laborious and moist 
      respirations across the room. His respiratory rate was 44 
      and he was unconscious. We immediately set to work. I gave 
      him 40 mg of Lasix (furosemide) intravenously. There was no 
      effect. I then gave him 10 mg of morphine intravenously. 
      There was no effect after several minutes. I repeated the 
      dose of 10 mg of morphine and waited several minutes. 
      Again, there was no effect. I gave 5 mg of morphine. There 
      was still no effect. I then gave 5 mg of Valium (diazepam) 
      in an attempt to sedate him and ease the work of breathing. 
      There was no effect. I repeated the Valium dose and there 
      was still no effect. I gave 5 mg of morphine, waited, saw 
      no effect and gave another 10 mg of morphine. After a few 
      minutes, his respirations decreased to about 20. This was a 
      reasonable goal. However, instead of stabilizing at 20, 
      they continued to diminish and he stopped breathing several 
      minutes later.

Id. Dr. Hunter also testified repeatedly that H.R. 2260 would not 
change the way he practices palliative care. Hunter Testimony.
---------------------------------------------------------------------------
    \43\ 42 U.S.C. Sec. 14402(b)(4). In distinguishing palliative care 
from euthanasia, the subcommittee heard testimony that:

      [t]he medical profession has long recognized that efforts 
      to control pain using powerful drugs may sometimes have 
      side-effects . . . The physician's intent in these cases, 
      however, is to use the minimum dosage needed to control the 
      pain; any risk of hastening death is not intended, but is 
      foreseen as the unavoidable side-effect of a legitimate 
      medical action.
---------------------------------------------------------------------------

See Pain Relief Promotion Act of 1999: Hearing on H.R. 2260 Before the 
Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th 
Cong. 3-4 (June 24, 1999) (statement of Richard M. Doerflinger, 
National Conference of Catholic Bishops) <> [hereinafter cited as Doerflinger Testimony]. 
``The important factor here is the agent's intent . . . The goal of 
pain control is a patient who is relieved of pain. The goal of assisted 
suicide is a world that is relieved of one more patient.'' Id. at 4.

        [w]hen a doctor provides aggressive palliative care . . 
        . painkilling drugs may hasten a patient's death, but 
        the physician's purpose and intent is, or may be, only 
        to ease his patient's pain. A doctor who assists a 
        suicide, however, ``must, necessarily and indubitably, 
        intend primarily that the patient be made dead.'' 
        [Assisted Suicide in the United States, Hearing before 
        the Subcomm. on the Constitution of the House Comm. on 
        the Judiciary, 104th Cong., 2d Sess., 367 (1996) 
        (testimony of Dr. Leon R. Kass)].\44\
---------------------------------------------------------------------------
    \44\ Vacco v. Quill, 117 S.Ct. 2293, 2298-9, 2302 (1997).

    Title I, Section 303(i)(2) of the CSA as amended by H.R. 
2260 would ensure the uniform application of the CSA in every 
jurisdiction: ``Notwithstanding any other provision of this 
Act, in determining whether a registration is consistent with 
the public interest under this Act, the Attorney General shall 
give no force and effect to State law authorizing or permitting 
assisted suicide or euthanasia.'' If H.R. 2260 were to be 
enacted, using controlled substances to cause death will be 
regarded as inconsistent with public health and safety in all 
50 States, as it had been prior to the Attorney General's 1998 
ruling. \45\
---------------------------------------------------------------------------
    \45\ Importantly, H.R. 2260 does not preempt Oregon's law 
legalizing assisted suicide in specified circumstances. Its only legal 
effect is to forbid the use of those drugs which are federally 
controlled for this purpose.
---------------------------------------------------------------------------
            Enforcement of Title I Provisions
    H.R. 2260 distinguishes between the use of controlled 
substances with the intent to manage pain and the use of 
controlled substances with the intent to cause death. This 
distinction does not create a new requirement that law 
enforcement officials question doctors' intent in using 
controlled substances for pain control. The Federal Assisted 
Suicide Funding Restriction Act, which governs all Federal 
health programs and health facilities, uses this same 
distinction between pain control that may unintentionally 
hasten death and the intentional use of drugs to assist 
suicides. In addition, the overwhelming majority of State laws 
prohibiting assisted suicide use the scienter requirement of 
``intent'' to determine whether a physician has violated the 
criminal law by providing potentially lethal drugs to a 
patient.\46\ Moreover, since Sec. 823(f)(4) of the CSA regards 
noncompliance with State law as one factor for consideration in 
the denial or revocation of a controlled substances 
registration, the concept of intentional assistance in suicide 
was routinely contemplated in the enforcement of the CSA prior 
to H.R. 2260.
---------------------------------------------------------------------------
    \46\ E.g., Louisiana (La. Rev. Stat. Ann. Sec. 32.12 (West 1998)) 
in 1995; Rhode Island (R.I. Gen. Laws. Sec. 11-60-3 (1998)) and Iowa 
(Iowa Code Ann. Sec. 707A.2 (West 1998) in1996; Virginia (Va. Code Ann. 
Sec. 8.01-622.1 (Michie 1999)) in 1998, and Maryland (1999 Md. Laws 
700) in 1999.
---------------------------------------------------------------------------
  Various State laws use the following phrases: ``intentionally causes 
or aids another person to commit suicide'' N.Y. Penal Law Sec. 125.15 
(McKinney 1999), Conn. Gen. Stat. Ann. Sec. 53a-56 (West 1999), and Or. 
Rev. Stat. Sec. 163.125 (1998); ``purposely aids another to commit 
suicide'', N.J. Stat. Ann. Sec. 2C:11-6 (West 1999) ; ``purposely 
causes or aids another person to commit suicide'' Ark. Code. Ann. 
Sec. 5-10-104 (Michie 1997); ``intentionally aids or solicits another 
to commit suicide'' 18 Pa. Cons. Stat. Ann. Sec. 2505 (West 1998); 
``purposely aids or solicits another to commit suicide'' N.H. Rev. 
Stat. Ann. Sec. 630:4 (1998); ``intentionally in any manner advises, 
encourages, abets or assists another in taking his own life'' S.D. 
Codified Laws Sec. 22-16-37 (Michie 1999); ``willfully furnishes 
another person with any deadly weapon or poisonous drug, knowing that 
such person intends to use such weapon or drug in taking his own life . 
. . , if such person thereafter employs such instrument or drug in 
taking his own life'' Okla. Stat. Ann. tit. 21, Sec. 814 (West 1998); 
``deliberately aiding another in the taking of his own life'' N.M. 
Stat. Ann. Sec. 30-2-4 (Michie 1999); ``intentionally aids another 
person to commit suicide'' Alaska Stat. Sec. 11.41.120 (Michie 1998), 
Del. Code Ann. tit. 11, Sec. 632 (1998); ``deliberately aids, or 
advises, or encourages another to commit suicide'' Cal. Penal Code 
Sec. 401 (West 1998); ``intentionally or knowingly aids, abets, 
facilitates, solicits, or incites another person to commit suicide,'' 
or ``provides to, delivers to, procures for, or prescribes for another 
person any drug or instrument with knowledge that the other person 
intends to commit suicide with the drug or instrument'' N.D. Cent. Code 
Sec. 12.1-16-04 (1999); ``with the purpose of assisting another person 
to commit or to attempt to commit suicide, knowingly and intentionally 
either: (1) provides the physical means by which another person commits 
or attempts to commit suicide, or (2) participates in a physical act by 
which another person commits or attempts to commit suicide'' Ky. Rev. 
Stat. Ann. Sec. 216.302 (Michie 1998).
  Some States have explicit disclaimers about pain control; for 
example: ``This section does not apply to the following: (1) A licensed 
health care provider who administers, prescribes, or dispenses 
medications or procedures to relieve a person's pain or discomfort, 
even if the medication or procedure may hasten or increase the risk of 
death, unless such medications or procedures are intended to cause 
death.'' Ind. Code Ann. Sec. 35-42-1-2.5 (1999); ``health care 
professional,'' and ``unless the medications or procedures are 
knowingly and intentionally administered, prescribed, or dispensed to 
cause death.'' Ky. Rev. Stat. Ann. Sec. 216.304 (1998); ``[assisted 
suicide prohibitions] do not preclude the use of medications or 
procedures necessary to relieve a person's pain or discomfort if the 
use of the medications or procedures is not intentionally or knowingly 
prescribed or administered to cause the death of that person.'' N.D. 
Cent. Code Sec. 12.1-16-06 (1999).
  Even Oregon's criminal law continues to punish actions in which a 
person intentionally causes or aids another person in committing 
suicide except for a certain class of terminally ill people. Or. Stat. 
Sec. 163.125 (1999).
    It is the committee's view that, while the States are the 
first line of defense against misuse of prescription drugs, the 
Federal Government should enforce its own standard as to what 
constitutes such misuses when a State cannot or will not do so. 
In Oregon, reports and records required by the assisted suicide 
law will demonstrate whether federally controlled substances 
have been intentionally dispensed to assist suicide. Under 
section 127.865(b) of the Oregon Revised Statutes, ``The 
[Oregon Health] Division shall require any health care provider 
upon dispensing medication pursuant to ORS 127.800 to 127.897 
to file a copy of the dispensing record with the division.'' 
Thus, in order to escape criminal liability that would 
otherwise exist under Oregon law for assisting a suicide, a 
physician must file a form listing the precise drugs used to 
assist a suicide with State authorities. Therefore, the DEA may 
identify all cases in which federally controlled substances 
have been used to assist suicide in Oregon in compliance with 
Oregon law simply by obtaining reports from the Oregon Health 
Division without ever having to review patient medical records 
or otherwise investigate doctors.\47\ Doctors in Oregon who 
prescribe controlled substances for pain relief only will have 
no reason to fear investigation of their use of controlled 
substances for pain, and should not, therefore, be deterred in 
any way from prescribing pain relief.
---------------------------------------------------------------------------
    \47\ The DEA has authority to subpoena dispensing records from 
State authorities. Under 21 U.S.C. Sec. 876 of the CSA, ``[i]n any 
investigation . . . with respect to controlled substances, the Attorney 
General may . . . require the production of any records (including 
books, papers, documents, and other tangible things which constitute or 
contain evidence) which the Attorney General finds relevant or material 
to the investigation.''
---------------------------------------------------------------------------
            Promoting Palliative Care Through Education and Training
    According to the American Medical Association, ``the 
prohibition on physician-assisted suicide provides health care 
professionals with a tremendous incentive to improve and expand 
the availability of palliative care.'' \48\ This judgment has 
been confirmed time and time again, as new State and Federal 
restrictions on assisted suicide have been followed by 
significant progress in palliative care and increases in the 
use of controlled substances for pain control.\49\ The American 
Medical Association has previously testified before this 
subcommittee, however, that the failure of most States to 
expressly permit pain management that may unintentionally 
hasten death has ``generated reluctance among physicians to 
prescribe adequate pain medication.'' \50\ In short, people may 
be suffering needlessly because of a lack of understanding 
about the appropriate use of pain medicine in palliative care. 
H.R. 2260 will do much to correct this grave and unnecessary 
problem by encouraging doctors to use controlled substances to 
relieve pain and suffering and by educating health care 
professionals and law enforcement personnel about palliative 
care. One medical expert who testified before the subcommittee 
stated that, ``pain management without this bill is abysmal in 
the United States . . . [H.R. 2260] provides a much needed 
service to the dying while protecting vulnerable persons from 
the real and dangerous effects of the acceptance and practice 
of assisted suicide/euthanasia as public policy.'' \51\
---------------------------------------------------------------------------
    \48\ Brief of the American Medical Association, et al., as Amicus 
Curiae in Support of Petitioners at 22, Vacco v. Quill, 521 U.S. 793 
(1997) (No. 95-1858).
    \49\ See Doerflinger Testimony (citing advances in palliative care 
in Veterans Administration hospitals after enactment of the Assisted 
Suicide Funding Restriction Act as well as increased morphine use after 
enactment of state bans on assisted suicide). The DEA has released its 
figures on per capita morphine use for the period of January to June 
1999. Drug Enforcement Admin., U.S. Dep't of Justice, Statistics on 
Individual State Consumption of Morphine (on file with Subcomm. on the 
Constitution of the House Comm. on the Judiciary). Kansas experienced a 
significant increase in morphine use following the addition of civil 
penalties to its existing criminal ban on assisted suicide in 1998; 
previously ranked 35th among states in morphine use, Kansas is now 
ranked second with 2287 grams per 100,00 population. Id. Louisiana was 
ranked 41st in morphine use in 1994, the year before enactment of its 
assisted suicide ban; it is now 9th among states in morphine use. Id. 
Tennessee was ranked 16th in morphine use in 1992, the year before it 
enacted a ban on assisted suicide, and has risen to 8th place among 
states. Id. Empirical evidence, therefore, supports the AMA's claim 
that clear laws against assisted suicide promote aggressive pain 
management. Thus, the two purposes of H.R. 2260--to clarify the federal 
policy against assisted suicide and in favor of pain management--are 
mutually supportive.
---------------------------------------------------------------------------
  The DEA figures show Oregon with the highest per capita consumption 
of morphine, at 2332 grams per 100,000 population. Id. Two comments are 
in order with regard to Oregon. First, the DEA figures do not indicate 
for what the morphine is used. Some assisted suicides may use large 
doses of morphine (as did one of the 15 cases reported in the Oregon 
Health Division report), and it is unknown how many unreported cases of 
assisted suicide occur now that the state has officially sanctioned 
assisted suicide. Second, the current per capita consumption (2332) is 
slightly less than per capita consumption during the first half of 1998 
(2385)--the period before the Attorney General ``decriminalized'' 
assisted suicide under the CSA.
---------------------------------------------------------------------------
    \50\ Hearing on Assisted Suicide in the United States Before the 
Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th 
Cong. (April 29, 1996) (statement of Lonnie R. Bristow, M.D., 
President, American Medical Association).
    \51\ Hunter Testimony.
---------------------------------------------------------------------------
    In Title I, H.R. 2260 authorizes the Attorney General to 
carry out educational programs for law enforcement personnel, 
based on recommendations by the Secretary of Health and Human 
Services, on the necessary and legitimate use of controlled 
substances in pain management and palliative care. This 
provision is designed to encourage law enforcement personnel to 
defer to medical judgments by health professionals practicing 
aggressive pain management. In Title II, the bill amends the 
Public Health Services Act \52\ to authorize programs within 
the Department of Health and Human Services to develop and 
advance the scientific understanding of palliative care and for 
education and training in palliative care. Title II provides 
for the awarding of grants, cooperative agreements, and 
contracts to health professions schools, hospices, and other 
public and private entities to develop and implement palliative 
care education and training programs for health care 
professionals in palliative care. The decision to award these 
programs will be made by peer review groups, each of which must 
include one or more individuals with expertise and experience 
in palliative care.
---------------------------------------------------------------------------
    \52\ 42 U.S.C. Sec. 294 et seq.
---------------------------------------------------------------------------

                                Hearings

    The committee's Subcommittee on the Constitution held a 
hearing on H.R. 2260 on June 24, 1999. Testimony was received 
from the following witnesses: Samira Beckwith, President and 
CEO, Hope Hospice, Past Chairperson for the National Hospice 
Organization; Ann Jackson, Executive Director and CEO, Oregon 
Hospice Association; N. Gregory Hamilton, M.D., Physicians for 
Compassionate Care; David E. Joranson, M.S.S.W., Senior 
Scientist and Director of The Pain and Policy Studies Group, 
Comprehensive Cancer Center, The University of Wisconsin 
Medical Group; Richard Doerflinger, Associate Director for 
Policy Development, Secretariat for Pro-Life Activities, 
National Conference of Catholic Bishops; Walter R. Hunter, 
M.D., Associate National Medical Director, VistaCare Hospice; 
David Orentlicher, M.D.; J.D., Professor, Indiana University 
School of Law-Indianapolis Center for Law and Health; and 
Thomas Marzen, General Counsel, The National Legal Center for 
the Medically Dependent & Disabled, Inc.

                        Committee Consideration

    On July 20, 1999, the Subcommittee on the Constitution met 
in open session and ordered favorably reported the bill H.R. 
2260, without amendment, by voice vote, a quorum being present. 
On September 14, 1999, the committee met in open session and 
ordered favorably reported the bill H.R. 2260 without amendment 
by a recorded vote of 16 to 8, a quorum being present.

                         Vote of the Committee

    1. An amendment was offered by Mr. Watt to insert language 
that would authorize the dispensing of a controlled substance 
for the purpose of causing death or assisting in causing death 
when in compliance with applicable State, Federal or local laws 
and to strike language requiring the Attorney General to give 
no force and effect to State law authorizing or permitting 
assisted suicide or euthanasia. Mr. Scott requested a division 
of the question. Section 1 of the amendment was offered by Mr. 
Watt to insert language establishing exceptions for applicable 
State, Federal and local laws. The amendment was defeated by a 
13-15 rollcallvote.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             13              15   ..............
----------------------------------------------------------------------------------------------------------------

    2. An amendment was offered by Mr. Watt to strike language 
to give no force or effect to State law authorizing or 
permitting assisted suicide or euthanasia. The amendment was 
defeated by a 12-15 rollcall vote.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             12              15   ..............
----------------------------------------------------------------------------------------------------------------

    3. An amendment was offered by Mr. Scott to strike Section 
101 of Title I of the bill regarding reinforcing the existing 
standard for legitimate use of controlled substances. The 
amendment was defeated by a 12-16 rollcall vote.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............              X   ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             12              16   ..............
----------------------------------------------------------------------------------------------------------------

    4. An amendment was offered by Mr. Conyers requiring that 
the government prove beyond a reasonable doubt in a criminal 
proceeding and by clear and convincing evidence in a civil 
proceeding that the doctor distributed controlled substances 
with the intent to cause death. The amendment was defeated by a 
9-15 rollcall vote.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              9              15   ..............
----------------------------------------------------------------------------------------------------------------

    5. An amendment was offered by Mr. Conyers allowing a 
doctor to assert an affirmative defense that he did not intend 
to cause death with controlled substances when his intent to 
cause death had already been proven by the government. The 
amendment was defeated by a 10-16 rollcall vote.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............  ..............  ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............  ..............  ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             10              16   ..............
----------------------------------------------------------------------------------------------------------------

    6. An amendment was offered by Ms. Jackson Lee to exempt 
pre-existing State law from the provisions of the bill. The 
amendment was defeated by a 9-14 rollcall vote.

                                                   ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............  ..............  ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............  ..............  ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............  ..............  ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              9              14   ..............
----------------------------------------------------------------------------------------------------------------

    7. An amendment was offered by Mr. Berman providing that 
violation of title I shall not result in criminal liability. On 
unanimous consent Mr. Berman modified his amendment to read at 
the end of page 2, line 24, add the following: Nothing in this 
section shall constitute any criminal liability other than that 
already existing. The amendment was defeated by a 9-16 rollcall 
vote.

                                                   ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............  ..............  ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              9              16   ..............
----------------------------------------------------------------------------------------------------------------

    8. Final Passage. The motion to report the bill, H.R. 2260, 
favorably without amendment to the whole House. The motion was 
agreed to by a rollcall vote of 16-8.

                                                   ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................  ..............  ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................              X   ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Ms. Bono........................................................              X   ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................              X   ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............              X   ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................  ..............              X   ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             16               8   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 2260, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 24, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2260, the Pain 
Relief Promotion Act of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for effects on spending by the Department of 
Justice), who can be reached at 226-2860; Cyndi Dudzinski (for 
costs to the Health Resources and Services Administration), who 
can be reached at 226-9010; Jeanne De Sa (for costs to the 
Agency for Health Care Policy and Research), who can be reached 
at 226-9010; Lisa Cash Driskill (for the state and local 
impact), who can be reached at 225-3220; and John Harris (for 
the private-sector impact), who can be reached at 226-2618.
            Sincerely,
                                  Dan L. Crippen, Director.
H.R. 2260--Pain Relief Promotion Act of 1999.

                                SUMMARY

    H.R. 2260 would increase an existing authorization of 
appropriations to the Health Resources and Services 
Administration (HRSA) for the purpose of making grants to 
public and private entities to educate and train health care 
professionals in palliative care. The bill also would direct 
the Agency for Health Care Policy and Research (AHCPR) to 
develop a program to improve palliative care, and would 
prohibit the use of controlled substances for assisted suicide 
or euthanasia, regardless of any state law authorizing such 
activity.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing H.R. 2260 would result in 
additional discretionary spending of about $24 million over the 
2000-2004 period. Enacting this legislation could affect direct 
spending and receipts, so pay-as-you-go procedures would apply; 
however, CBO estimates that the amounts involved would be less 
than $500,000 a year.
    H.R. 2260 contains both an intergovernmental and a private-
sector mandate as defined in the Unfunded Mandates Reform Act 
(UMRA). CBO estimates that the bill would result in no costs to 
state, local, or tribal governments, so the threshold 
established in UMRA ($50 million in 1996, adjusted annually for 
inflation) would not be exceeded. CBO also estimates that the 
costs of the private-sector mandate would fall below the 
threshold established in UMRA ($100 million in 1996, adjusted 
for inflation).

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 2260 is shown in the 
following table. The costs of this legislation fall within 
budget function 550 (health).

                                     By fiscal year, in millions of dollars
----------------------------------------------------------------------------------------------------------------
                                                                       2000     2001     2002     2003     2004
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level                                              7        7        7        2        2
Estimated Outlays                                                          3        6        7        5        3
----------------------------------------------------------------------------------------------------------------

                           BASIS OF ESTIMATE

    For the purposes of this estimate, CBO assumes that the 
bill will be enacted by or near the beginning of fiscal year 
2000, that the necessary amounts will be provided for each 
year, and that outlays will follow historical spending rates 
for these activities.
Spending Subject to Appropriation
    The estimated change in spending subject to appropriation 
has two components: (1) an increase in the existing 
authorization of HRSA grants for education and training of 
health care professionals, and (2) a new AHCPR research program 
aimed at improving the quality of care for terminally ill 
patients.
    The existing HRSA grant program received an appropriation 
of $21 million for fiscal year 1999. This program is part of a 
larger HRSA activity which has a current authorization of such 
sums as necessary through fiscal year 2002. H.R. 2260 would 
increase the existing target level of $23 million a year 
(within that ``such sums'' authorization) by $5 million. The 
agency would use the additional funds to award grants to public 
and private entities to develop, implement, and evaluate 
education and training programs in palliative care.
    H.R. 2260 would direct AHCPR to develop a research program 
to improve palliative care, mainly through the collection and 
dissemination of guidelines for providing such care. CBO 
estimates that implementing this provision would cost about $1 
million in fiscal year 2000 and $2 million annually thereafter, 
assuming the appropriation of the necessary amounts. (The 
agency received an appropriation of $100 million for 1999.)
Direct Spending and Revenues
    Persons who violate the bill's provisions regarding the use 
of controlled substances to assist in suicide could face 
revocation of their license to prescribe controlled substances. 
Upon revocation of an individual's license, the Drug 
Enforcement Administration could seize any such substances in 
their possession. Thus, enacting H.R. 2260 could lead to the 
seizure of more assets and their forfeiture to the United 
States, but we estimate that any such increase would be less 
than $500,000 annually in value. Proceeds from the sale of any 
such assets would be deposited as revenues into the Assets 
Forfeiture Fund of the Department of Justice and spent from 
that fund, generally in the same year. Thus, the changes in 
direct spending from the Assets Forfeiture Fund would match any 
increase in revenues to that fund.
    Violators of the bill's provisions also could be subject to 
criminal fines, so the federal government might collect 
additional fines if the bill is enacted. Collections of such 
fines are recorded in the budget as governmental receipts 
(revenues), which are deposited in the Crime Victims Fund and 
spent in subsequent years. CBO expects that any additional 
receipts and direct spending would be negligible.

                      PAY-AS-YOU-GO CONSIDERATIONS

    The Balanced Budget and Emergency Deficit Control Act sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts. Enacting H.R. 2260 could affect both 
direct spending and receipts, but CBO estimates that any such 
effects would be less than $500,000 a year.

        ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

    H.R. 2260 contains an intergovernmental mandate as defined 
in UMRA, but CBO estimates that complying with the mandate 
would impose no costs on state, local, or tribal governments, 
and thus would not exceed the threshold established in that act 
($50 million in 1996, adjusted annually for inflation).
    In October 1997, an Oregon law that legalized doctor-
assisted suicide for terminally ill patients went into effect. 
Since that time, the interaction of the Federal Controlled 
Substances Act with that state law has been controversial. As 
it currently stands, under both Oregon and federal law, it is 
acceptable for doctors in Oregon to use federally controlled 
substances for the purposes set forth in state law. H.R. 2260 
would direct the Attorney General to give no force and effect 
to such a state law when determining whether the federal 
registration of a doctor under the Controlled Substances Act is 
consistent with the public interest. This would be a preemption 
of the Oregon ``Death with Dignity Act'' because it would limit 
the options available to doctors acting under that state law. 
Because the state would not be required to take any action, the 
preemption would have no cost. The bill also would authorize $5 
million for education and training in palliative care for 
health care professionals, many of whom are employed by state 
and local facilities.

                 ESTIMATED IMPACT ON THE PRIVATE SECTOR

    H.R. 2260 would create a new private-sector mandate for 
physicians registered to prescribe or administer federally 
controlled substances by prohibiting the use of such substances 
in physician-assisted suicides. The bill would require the Drug 
Enforcement Administration to treat the use of controlled 
substances for physician-assisted suicide as a violation of the 
Controlled Substances Act in all states, including those where 
the practice is permitted by law. Doctors who violate the 
prohibition would lose their registration, would have to give 
up their stocks of controlled substances, and could face 
criminal prosecution. Currently, Oregon is the only state that 
allows physician-assisted suicide. The number of doctors 
affected and the costs associated with the mandate would be 
small.

                         ESTIMATE PREPARED BY:

Federal Costs: DOJ--Mark Grabowicz (226-2860); HRSA--Cyndi 
        Dudzinski (226-9010); AHCPR--Jeanne De Sa (226-9010)
Impact on State, Local, and Tribal Governments: Lisa Cash 
        Driskill (225-3220)
Impact on the Private Sector: John Harris (226-2618)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article 1, section 8, clauses 1, 3 and 18 
of the Constitution.

               Section-by-Section Analysis and Discussion

Section 101: Reinforcing Existing Standard for Legitimate Use of 
        Controlled Substances:
    This section amends the Controlled Substances Act to 
clarify that doctors and other licensed health care 
professionals are authorized to dispense, distribute, or 
administer controlled substances for the legitimate medical 
purpose of alleviating a patient's pain or discomfort even if 
the use of these drugs may increase the risk of death. This 
section also reinforces the current law that the 
administration, dispensing, or distribution of a controlled 
substance for the purpose of assisting a suicide is not 
authorized by the Controlled Substances Act.
    This section provides that the Attorney General in 
implementing the Controlled Substances Act shall not give force 
or effect to any State law permitting assisted suicide or 
euthanasia.
    This section provides that the provisions of the bill are 
effective upon enactment with no retroactive effect.
Section 102: Education and Training Programs
    This section authorizes the Attorney General to incorporate 
the recommendations of the Secretary of Health and Human 
Services to carry out educational and research training 
programs for law enforcement personnel on the necessary and 
legitimate use of controlled substances in pain management and 
palliative care.

                                Title II

Section 201. Activities of Agency for Health Care Policy and Research
    This section amends the Public Health Services Act by 
authorizing a program responsibility for the Agency for Health 
Care Policy and Research in the Department of Health and Human 
Services to develop and advance the scientific understanding of 
palliative care. The Agency is directed to collect and 
disseminate protocols and evidence-based practices for 
palliative care with priority for terminally ill patients. This 
section has a definition of palliative care which is based on 
the Word Health Organization's definition.
Section 202. Activities of Health Resources and Services Administration
    This section amends the Public Health Services Act by 
authorizing a program for education and training in palliative 
care in the Health Resources and Services Administration of the 
Department of Health and Human Services. This section allows 
the Secretary, in consultation with the Administrator for 
Health Care Policy and Research to award grants, cooperative 
agreements and contracts to health professions schools, 
hospices, and other public and private entities to develop and 
implement palliative care education and training programs for 
health care professionals in palliative care.
    This section requires the applicant for the award to 
include three educational and informational components in the 
program 1) the program must have a component that addresses a 
means for alleviating pain and discomfort, especially in 
terminally ill patients, including the use of controlled 
substances; 2) the program must provide information and 
education on the applicable law on controlled substances, and 
3) the information and education must provide recent findings 
and developments in the improvement of palliative care. Health 
professional schools, residency training programs, continuing 
education, graduate programs in the health professions, 
hospices, and other sites as determined by the Secretary will 
be used as program sites.
    This section requires the Secretary to evaluate the grant, 
cooperative agreement or contracted programs.
    This section mandates that the Secretary shall include one 
or more individuals with expertise and experience in palliative 
care in each peer review group involved in the selection of the 
palliative care awards.
    This section defines palliative care.
    This section authorizes an additional $5,000,000 annually 
for the palliative care award program and authorizes the grant 
cycle to begin with the fiscal year 2000.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                       CONTROLLED SUBSTANCES ACT

                   TITLE II--CONTROL AND ENFORCEMENT

           *       *       *       *       *       *       *


Part C--Registration of Manufacturers, Distributors, and Dispensers of 
Controlled Substances; Piperidine Reporting

           *       *       *       *       *       *       *


                       registration requirements

    Sec. 303. (a) * * *

           *       *       *       *       *       *       *

    (i)(1) For purposes of this Act and any regulations to 
implement this Act, alleviating pain or discomfort in the usual 
course of professional practice is a legitimate medical purpose 
for the dispensing, distributing, or administering of a 
controlled substance that is consistent with public health and 
safety, even if the use of such a substance may increase the 
risk of death. Nothing in this section authorizes intentionally 
dispensing, distributing, or administering a controlled 
substance for the purpose of causing death or assisting another 
person in causing death.
    (2) Notwithstanding any other provision of this Act, in 
determining whether a registration is consistent with the 
public interest under this Act, the Attorney General shall give 
no force and effect to State law authorizing or permitting 
assisted suicide or euthanasia.
    (3) Paragraph (2) applies only to conduct occurring after 
the date of enactment of this subsection.

           *       *       *       *       *       *       *


           Part E--Administrative and Enforcement Provisions

           *       *       *       *       *       *       *


        education and research programs of the attorney general

    Sec. 502. (a) The Attorney General is authorized to carry 
out educational and research programs directly related to 
enforcement of the laws under his jurisdiction concerning drugs 
or other substances which are or may be subject to control 
under this title. Such programs may include--
            (1) * * *

           *       *       *       *       *       *       *

            (5) studies or special projects to develop more 
        effective methods to prevent diversion of controlled 
        substances into illegal channels; [and]
            (6) studies or special projects to develop 
        information necessary to carry out his functions under 
        section 201 of this title[.]; and
            (7) educational and training programs for local, 
        State, and Federal personnel, incorporating 
        recommendations by the Secretary of Health and Human 
        Services, on the necessary and legitimate use of 
        controlled substances in pain management and palliative 
        care, and means by which investigation and enforcement 
        actions by law enforcement personnel may accommodate 
        such use.

           *       *       *       *       *       *       *

                              ----------                              


                       PUBLIC HEALTH SERVICE ACT



           *       *       *       *       *       *       *
                TITLE VII--HEALTH PROFESSIONS EDUCATION

           *       *       *       *       *       *       *


          PART D--INTERDISCIPLINARY, COMMUNITY-BASED LINKAGES

           *       *       *       *       *       *       *


SEC. 754. PROGRAM FOR EDUCATION AND TRAINING IN PALLIATIVE CARE.

    (a) In General.--The Secretary, in consultation with the 
Administrator for Health Care Policy and Research, may make 
awards of grants, cooperative agreements, and contracts to 
health professions schools, hospices, and other public and 
private entities for the development and implementation of 
programs to provide education and training to health care 
professionals in palliative care.
    (b) Priorities.--In making awards under subsection (a), the 
Secretary shall give priority to awards for the implementation 
of programs under such subsection.
    (c) Certain Topics.--An award may be made under subsection 
(a) only if the applicant for the award agrees that the program 
carried out with the award will include information and 
education on--
            (1) means for alleviating pain and discomfort of 
        patients, especially terminally ill patients, including 
        the medically appropriate use of controlled substances;
            (2) applicable laws on controlled substances, 
        including laws permitting health care professionals to 
        dispense or administer controlled substances as needed 
        to relieve pain even in cases where such efforts may 
        unintentionally increase the risk of death; and
            (3) recent findings, developments, and improvements 
        in the provision of palliative care.
    (d) Program Sites.--Education and training under subsection 
(a) may be provided at or through health professions schools, 
residency training programs and other graduate programs in the 
health professions, entities that provide continuing medical 
education, hospices, and such other programs or sites as the 
Secretary determines to be appropriate.
    (e) Evaluation of Programs.--The Secretary shall (directly 
or through grants or contracts) provide for the evaluation of 
programs implemented under subsection (a) in order to determine 
the effect of such programs on knowledge and practice regarding 
palliative care.
    (f) Peer Review Groups.--In carrying out section 799(f) 
with respect to this section, the Secretary shall ensure that 
the membership of each peer review group involved includes one 
or more individuals with expertise and experience in palliative 
care.
    (g) Definition.--For purposes of this section, the term 
``palliative care'' means the active total care of patients 
whose prognosis is limited due to progressive, far-advanced 
disease. The purpose of such care is to alleviate pain and 
other distressing symptoms and to enhance the quality of life, 
not to hasten or postpone death.

SEC. [754.]  755. QUENTIN N. BURDICK PROGRAM FOR RURAL 
                    INTERDISCIPLINARY TRAINING.

    (a) Grants.--The Secretary may make grants or contracts 
under this section to help entities fund authorized activities 
under an application approved under subsection (c).

           *       *       *       *       *       *       *


SEC. [755.] 756. ALLIED HEALTH AND OTHER DISCIPLINES.

    (a) In General.--The Secretary may make grants or contracts 
under this section to help entities fund activities of the type 
described in subsection (b).

           *       *       *       *       *       *       *


SEC. [756.] 757. ADVISORY COMMITTEE ON INTERDISCIPLINARY, COMMUNITY-
                    BASED LINKAGES.

    (a) Establishment.--The Secretary shall establish an 
advisory committee to be known as the Advisory Committee on 
Interdisciplinary, Community-Based Linkages (in this section 
referred to as the ``Advisory Committee'').

           *       *       *       *       *       *       *


SEC. [757.] 758. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There are authorized to be appropriated to 
carry out this part, $55,600,000 for fiscal year 1998, and such 
sums as may be necessary for each of the fiscal years 1999 
through 2002.
    (b) Allocation.--
            (1) In general.--Of the amounts appropriated under 
        subsection (a) for a fiscal year, the Secretary shall 
        make available--
                    (A) * * *

           *       *       *       *       *       *       *

                    (C) not less than $22,631,000 for awards of 
                grants and contracts under sections [753, 754, 
                and 755] 753, 754, 755, and 756.

           *       *       *       *       *       *       *


          TITLE IX--AGENCY FOR HEALTH CARE POLICY AND RESEARCH

               Part A--Establishment and General Duties

           *       *       *       *       *       *       *


SEC. 906. PROGRAM FOR PALLIATIVE CARE RESEARCH AND QUALITY.

    (a) In General.--The Administrator shall carry out a 
program to accomplish the following:
            (1) Develop and advance scientific understanding of 
        palliative care.
            (2) Collect and disseminate protocols and evidence-
        based practices regarding palliative care, with 
        priority given to pain management for terminally ill 
        patients, and make such information available to public 
        and private health care programs and providers, health 
        professions schools, and hospices, and to the general 
        public.
    (b) Definition.--For purposes of this section, the term 
``palliative care'' means the active total care of patients 
whose prognosis is limited due to progressive, far-advanced 
disease. The purpose of such care is to alleviate pain and 
other distressing symptoms and to enhance the quality of life, 
not to hasten or postpone death.

           *       *       *       *       *       *       *

                            Dissenting Views

    We strongly oppose H.R. 2260, the ``Pain Relief Promotion 
Act of 1999.'' This legislation represents an unnecessary 
intrusion into the sensitive relationship between terminally-
ill patients and their physicians and would empower Federal law 
enforcement agents to second-guess the considered medical 
judgment of physicians, pharmacists, and patients. Moreover, by 
threatening medical professionals with long prison sentences 
and strict liability, this bill would inhibit physicians from 
aggressively treating pain, limit patient access to palliative 
care, and make death more painful.
    The bill amends the Controlled Substances Act \1\ 
(``CSA''), which sets forth a system of enforcement and 
penalties for the manufacture and distribution of controlled 
substances.\2\ The bill has the effect of prohibiting 
physicians and pharmacists from prescribing controlled 
substances that cause death and subjects them to criminal 
penalties (i.e., imprisonment and fines) and civil penalties 
(i.e., revocation of their license to distribute controlled 
substances) under the Controlled Substances Act.\3\ The bill 
also requires the Attorney General to ignore any State law that 
permits assisted suicide.\4\
---------------------------------------------------------------------------
    \1\ 21 U.S.C. Sec. Sec. 801-852.
    \2\ Id. Among other things, the Controlled Substances Act (``CSA'') 
first lists the compounds that are regulated as controlled substances, 
meaning that persons must have permission from the Attorney General to 
manufacture and distribute them. Physicians and pharmacists seeking to 
prescribe controlled substances to alleviate pain must apply to the 
Drug Enforcement Administration (``DEA'') for a license to administer 
them for ``legitimate medical purposes.''
    \3\ See id. Sec. Sec. 824, 841.
    \4\ H.R. 2260 Sec. 101. Other portions of the bill permit the 
Attorney General to hold educational and training programs for law 
enforcement personnel on the appropriate use of controlled substances 
for palliative care. Id. Sec. 102. Title II of the bill amends the 
Public Health Service Act to develop palliative care research programs. 
Id. Sec. Sec. 201-02.
---------------------------------------------------------------------------
    The provision of the bill requiring the Attorney General to 
ignore State laws permitting assisted suicide would overturn 
directly the State of Oregon's Death with Dignity Act, which 
permits physician-assisted suicide under controlled 
circumstances.\5\ In doing so, however, the bill ignores the 
safeguards in the Oregon law and violates basic principles of 
federalism.\6\ Moreover, H.R. 2260 runs counter to unanimous 
Supreme Court decisions authorizing and encouraging the States 
to engage in meaningful debate and experimentation on the issue 
of physician-assisted suicide.\7\
---------------------------------------------------------------------------
    \5\ Oregon's law permits a competent adult, who is a resident of 
Oregon and has been determined by two physicians to be suffering from a 
terminal disease, and who has voluntarily expressed his or her wish to 
die, to make a written request for medication for the purpose of ending 
his or her life. Numerous procedural safeguards have been built into 
the Oregon law to ensure that patients cannot end their lives 
clandestinely with the help of their doctors. For example, two doctors 
must diagnose the patient as having a terminal disease and as being of 
sound mind. The patient's request must be in writing and be witnessed 
by two disinterested people. In addition, only terminally-ill patients 
are eligible, so people suffering from depression which causes impaired 
judgment or other mental and physical illnesses will not be able to end 
their lives with a physician's assistance. Furthermore, Oregon's law 
creates severe penalties for abuses under the Act.
    \6\ Id. Sec. 101 (``Notwithstanding any other provision of this 
Act, in determining whether a registration is consistent with the 
public interest under this Act, the Attorney General shall give no 
force and effect to State law authorizing or permitting assisted 
suicide or euthanasia.'').
    \7\ Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 
521 U.S. 702 (1997).
---------------------------------------------------------------------------
    It is for these reasons that several groups concerned about 
pain relief and the quality of medical care either formally 
oppose or have significant concerns with title I of H.R. 2260. 
Among them are the Oregon Medical Association;\8\ American 
Alliance of Cancer Pain Initiatives; the American Pain 
Foundation; the American Pharmaceutical Association; the 
American Society of Health-System Pharmacists; the American 
Society of Pain Management Nurses;\9\ the American Academy of 
Family Physicians;\10\ the Oregon Hospice Association;\11\ the 
San Francisco Medical Society;\12\ the Rhode Island Medical 
Society;\13\ and the Hospice Federation of Massachusetts.\14\ 
Moreover, the U.S. Department of Justice opposed predecessor 
legislation in the last Congress.\15\
---------------------------------------------------------------------------
    \8\ Letter from Richard G. Kincade, President, Oregon Medical 
Ass'n, to the Honorable Ron Wyden (D-OR), U.S. Senator (July 19, 1999) 
[hereinafter OMA Letter].
    \9\ Letter from the American Alliance of Cancer Pain Initiatives, 
the American Pain Foundation, the American Pharmaceutical Ass'n, the 
American Soc'y of Health-System Pharmacists, and the American Soc'y of 
Pain Management Nurses to the Honorable Henry J. Hyde, Chair, House 
Comm. on the Judiciary (July 19, 1999).
    \10\ Letter from Neil H. Brooks, MD, Chair, Amer. Academy of Family 
Physicians, to the Honorable Henry J. Hyde, Chair, House Comm. on the 
Judiciary (Aug. 12, 1999) [hereinafter AAFP Letter].
    \11\ Hearing on H.R. 2260, the ``Pain Relief Promotion Act of 
1999,'' Before the Subcomm. on the Const. of the House Comm. on the 
Judiciary, 106th Cong., 1st Sess. (June 24, 1999) (written statement of 
Ann Jackson, Executive Director, Oregon Hospice Ass'n) [hereinafter 
June 24, 1999 Subcomm. Hearing].
    \12\ Letter from William H. Goodson, III, MD, President, San 
Francisco Medical Soc'y, to the Honorable Nancy Pelosi (D-CA), U.S. 
Representative (Aug. 20, 1999).
    \13\ Letter from Steve DeToy, Rhode Island Medical Society, to 
Member of Congress (Aug. 3, 1999).
    \14\ Letter from D. Rigney Cunningham, Exec. Dir., Hospice Found. 
of Mass., to the Honorable Ron Wyden (D-OR), U.S. Senator (Aug. 3, 
1999).
    \15\ Letter from L. Anthony Sutin, Acting Asst. Attorney General, 
Office of Legislative Aff., U.S. Dept. of Justice, to the Honorable 
Henry J. Hyde (R-IL), Chair, House Comm. on the Judiciary 1 (Aug. 3, 
1998) (letter concerning H.R. 4006, 105th Cong., 2d Sess. (1998)).
---------------------------------------------------------------------------

          I. H.R. 2260 VIOLATES BASIC PRINCIPLES OF FEDERALISM

    Our opposition to this bill is not tantamount to support 
for physician-assisted suicide; instead, title I of this bill 
raises serious federalism concerns because it inserts the 
Federal Government into what traditionally has been a local 
medical oversight process, the regulation of medical practices. 
The federalism issue arises because a significant motive of 
H.R. 2260's sponsors is to nullify an Oregon referendum that 
permits physician-assisted suicide.\16\
---------------------------------------------------------------------------
    \16\ Judiciary Committee to Markup ``Pain Relief Promotion Act of 
1999'' Tuesday, Press Release of the Honorable Henry J. Hyde, Chair, 
House Comm. on the Judiciary (Sept. 8, 1999). Most surprising is the 
majority's wavering stance on the importance of State referenda. The 
majority appears to believe that State referenda are worthwhile when 
they do things such as eliminate affirmative action in California and 
has even introduced legislation to promote the use of referenda, such 
as H.R. 1252, the ``Judiciary Reform Act of 1998.'' Chairman Hyde said 
that H.R. 1252 ``recognizes that State referenda reflect, more than any 
other process, the one-person/one-vote system, and seeks to protect a 
fundamental part of our national foundation.'' 144 Cong. Rec. H2246 
(daily ed. April 23, 1998) (statement of Rep. Hyde). The current 
legislation seems to constitute a complete about-face from that 
position.
---------------------------------------------------------------------------
    One of the fundamental tenets of federalism is that the 
States are free to act as independent laboratories of 
democracy. In this case, after considerable debate, the people 
of the State of Oregon decided that terminally-ill people 
should have the ability to control the time and manner of their 
death, and the nation can now look to Oregon to see how well 
such a law functions.\17\ The Death with Dignity Act has 
overwhelming support among Oregonians: 65% of Oregon voters and 
66% of Oregon physicians are in favor of it.\18\
---------------------------------------------------------------------------
    \17\ Physicians with the Oregon Health Department have stated that, 
by 1998, after the law's first full year in effect, only 23 people had 
requested lethal prescriptions and only 15 of them had used them. 
Alissa J. Rubin, Oregon Assisted-Suicide Law at Risk, L.A. Times, Sept. 
14, 1999.
    \18\ See Oregon Death With Dignity Legal Defense and Education 
Center, The Oregon Death With Dignity Act and The Drug Enforcement 
Administration.
---------------------------------------------------------------------------
    Ruling in 1997 on the constitutionality of a State of 
Washington statute that prohibited physician-assisted suicide, 
the U.S. Supreme Court observed that ``[t]hroughout the Nation, 
Americans are engaged in an earnest and profound debate about 
the morality, legality, and practicality of physician-assisted 
suicide. Our holding permits this debate to continue, as it 
should in a democratic society.'' \19\ While some of the States 
engaged in the debate have decided to prohibit physician-
assisted suicide,\20\ Oregon has not. In a blow to federalism, 
H.R. 2260 would nullify the democratic will of the people of 
Oregon as expressed through two ballot referenda. This debate 
should continue in the States, where it belongs. Dr. David 
Orentlicher, of the Indiana University Center on Law and 
Health, stated in his testimony before the Constitution 
Subcommittee:
---------------------------------------------------------------------------
    \19\ Washington, 521 U.S. at 735.
    \20\ See Vacco, 521 U.S. at 805-06 (listing State laws that 
prohibit physician-assisted suicide).

        Congress and the courts have long recognized the 
        importance of the laboratory of State experimentation 
        on complicated matters of social policy. Because the 
        optimal approach is often not clear, our Federal system 
        encourages States to try different approaches. With 
        local variations, the country can discover the best 
        course of action. . . . In a bold departure from the 
        Supreme Court's guidance, this Act would bring an 
        abrupt end of State experimentation and the 
        accompanying efforts to protect dignity and 
        independence at the end of life.\21\
---------------------------------------------------------------------------
    \21\ June 24, 1999 Subcomm. Hearing (written statement of David 
Orentlicher, MD, Director, Center of Law and Health, Indiana Univ. 
School of Law, at 5).

    A side effect of this contravention of federalism is the 
politicization of medical standards, which currently are 
decided on a State-by-State basis. In effect, the Federal 
Government, through the Justice Department and the Drug 
Enforcement Administration, would come closer to establishing 
itself as a ``national medical board.'' As the Oregon Medical 
---------------------------------------------------------------------------
Association stated:

        If the Department of Justice is authorized to rule 
        whether prescription of pain medications is a 
        ``legitimate medical purpose'' we can only conclude 
        that it must adopt Federal regulations to determine the 
        standard of medical care, which may directly conflict 
        with State responsibility for standards of practice for 
        end of life care.\22\
---------------------------------------------------------------------------
    \22\ OMA Letter. Concerns about a ``national medical board'' are 
not limited to Oregon--physicians all across the country ``remain[] 
concerned that a law enforcement agency determination of when pain 
management practices crosses over into assisted suicide would require 
the Federal Government to begin to define what is appropriate medical 
practice.'' AAFP Letter.
---------------------------------------------------------------------------

    II. H.R. 2260 INCLUDES CRIMINAL PENALTIES THAT WOULD DISCOURAGE 
       PHYSICIANS AND PHARMACISTS FROM AGGRESSIVELY TREATING PAIN

    We are also concerned that the bill would discourage 
physicians and pharmacists from aggressively treating pain by 
subjecting them to criminal penalties.\23\ Although the bill 
does not explicitly reference any criminal provisions, it 
amends the CSA in a manner that clearly will result in the 
application of criminal law provisions to physicians and 
pharmacists for dispensing controlled substances that cause 
death.
---------------------------------------------------------------------------
    \23\ See 21 U.S.C. Sec. 841. While the majority contends that title 
I of the bill will enable physicians to treat patients experiencing 
great pain, we believe that this bill will still have a chilling effect 
on such practices because physicians could be accused of causing death 
even when they intended only to reduce pain. See discussion infra part 
II.
---------------------------------------------------------------------------
    This is because the CSA--the regime that H.R. 2260 amends--
operates as a criminal law, and nothing in the bill alters that 
operation. Current law, in the form of Sec. 841 of the CSA, 
states, ``[e]xcept as authorized by this subchapter, it shall 
be unlawful for any person knowingly or intentionally--(1) to 
manufacture, distribute, or dispense . . . a controlled 
substance.'' \24\ The penalties for violation of Sec. 841 
include up to life in prison as well as a $1 million fine.\25\
---------------------------------------------------------------------------
    \24\ 21 U.S.C. Sec. 841(a)(1).
    \25\ Id. Sec. 841.
---------------------------------------------------------------------------
    H.R. 2260 amends the CSA to prohibit the dispensing of 
drugs that result in death by amending Sec. 823 of the CSA to 
state ``[n]othing in this section authorizes intentionally 
dispensing, distributing, or administering a controlled 
substance for the purpose of causing death or assisting another 
person in causing death.'' \26\ Because no provision in H.R. 
2260 provides any authority negating the criminal law 
provisions provided in current law under Sec. 841 of the CSA, 
it is clear that the same criminal law penalties will apply to 
persons who dispense drugs which result in death.\27\
---------------------------------------------------------------------------
    \26\ H.R. 2260 Sec. 101.
    \27\ The Supreme Court has held affirmatively that the Government 
can use Sec. 841 to criminally prosecute physicians registered under 
the CSA for misuse of controlled substances. United States v. Moore, 
423 U.S. 122, 124 (1975).
---------------------------------------------------------------------------
    Although the majority disputes this point, attorneys and 
physicians agree that H.R. 2260 would subject professionals to 
criminal penalties.\28\ For instance, the respected law firm of 
Heller Ehrman White & McAuliffe noted in a legal opinion that 
``it is glaringly apparent and deeply troubling [that the bill] 
will subject physicians to criminal prosecution with respect to 
the medically and ethically difficult decision-making process 
that they must engage in when providing care during the often 
painful end of life period.'' \29\ Furthermore, Dr. David 
Orentlicher, of the Center of Law and Health at Indiana 
University's School of Law, testified that H.R. 2260 is worse 
than last Congress's bill because, ``with this Act, physicians 
are at risk not merely for revocation of their license to 
prescribe controlled substances--as called for in last year's 
Lethal Drug Abuse Prevention Act--they are also subject to jail 
time.'' \30\
---------------------------------------------------------------------------
    \28\ In opposing the bill, the New York Times has observed that 
under H.R. 2260, ``doctors would still have reason to worry that they 
could be investigated and charged with intent to cause death even when 
no such intent existed.'' Flawed Pain-Relief Bill, N.Y. Times, Aug. 14, 
1999, at A12 (op-ed). ``Critics [of the bill] are particularly 
concerned about the bill's provision of criminal penalties for 
physicians found to have intentionally dispensed a narcotic to assist 
in a suicide. Law enforcement officers, they say, could easily 
misinterpret large doses of morphine meant to relieve the pain of 
pervasive cancer.'' Alissa J. Rubin, Oregon Assisted-Suicide Law at 
Risk, L.A. Times, Sept. 14, 1999.
    \29\ Letter from Nicholas W. van Aelstyn, Heller Ehrman White & 
McAuliffe, to the Honorable Ron Wyden (D-OR), U.S. Senator (July 21, 
1999) (emphasis added).
    \30\ June 24, 1999 Subcomm. Hearing (written statement of David 
Orentlicher, MD, Director, Center of Law and Health, Indiana Univ. 
School of Law, at 2).
---------------------------------------------------------------------------
    Criminal penalties will discourage physicians and 
pharmacists from aggressively treating pain because they will 
fear prosecution.\31\ Richard G. Kincade, the President of the 
Oregon Medical Association, stated that ``[the bill] is an 
unprecedented expansion of Government power and is subject to 
significant and varying interpretations, which will place 
physicians in the position of defending their practice in pain 
management if a patient dies.'' \32\ This is particularly 
harmful because physicians already under-medicate patients for 
fear of being sanctioned under the current law.\33\ In its June 
24, 1999 testimony before the Constitution Subcommittee, the 
Oregon Hospice Association pointed out that ``the climate that 
already exists in end-of-life care encourages levels of caution 
which too frequently result in increased pain and suffering for 
sick and dying people. This proposed bill would only worsen 
those conditions.'' \34\ The San Francisco Medical Society also 
noted:
---------------------------------------------------------------------------
    \31\ We are also concerned that the bill will dissuade physicians 
from sharing information with pharmacists about the patient's therapy. 
Pharmacists will not know the reason the drug is being prescribed and 
will not be subject to liability. H.R. 2260 will thus lessen the 
communication among health care providers at the very instant when the 
pharmacist could provide valuable insight on advancements in areas such 
as pain management therapy.
    \32\ OMA Letter.
    \33\ ``Even without a Federal criminal statute, studies of therapy 
for cancer-related pain found that more than half of patients were 
under-medicated. In a 1986 study of nearly 900 physicians, 86% said 
most cancer patients were under-treated. Many physicians acknowledged 
that they feared raising the suspicions of local medical boards or 
running afoul of State laws.'' Alissa J. Rubin, Oregon Assisted-Suicide 
Law at Risk, L.A. Times, Sept. 14, 1999.
    \34\ June 24, 1999 Subcomm. Hearing (written statement of Ann 
Jackson, Executive Director, Oregon Hospice Ass'n, at 2).

        In an era when a concerted and long-overdue effort is 
        being made to lessen physicians' fears of prescribing 
        appropriate amounts of medications for pain, we do not 
        need to send a frightening and mixed message of 
        increased investigation, criminalization, and 
        politicization of what should be a private matter 
        between patients and their physicians.\35\
---------------------------------------------------------------------------
    \35\ Letter from William H. Goodson, III, MD, President, San 
Francisco Medical Soc'y, to the Honorable Nancy Pelosi (D-CA), U.S. 
Representative (Aug. 20, 1999). See also June 24, 1999 Subcomm. Hearing 
(written statement of David E. Joranson, Pain & Policy Studies Group, 
Univ. of Wisconsin Comprehensive Cancer Center, at 6-7); id. (written 
statement of David Orentlicher, MD, Director, Center Law and Health, 
Indiana Univ. School of Law, at 3) (``As several major studies 
indicate, the reality is that legal concerns already make physicians 
overly cautious about prescribing the medications necessary to relieve 
the pain of their patients. Given the seriously disruptive and 
traumatic nature of criminal prosecutions, this Act will make 
physicians err even more on the side of caution.'').

    Of course, if the majority really wanted to make it clear 
that H.R. 2260 would not lead to criminal liability, they would 
have specified as such in the text of the bill. They failed to 
do so. Moreover, when Rep. Berman (D-CA) offered an amendment 
at the full Committee markup to specifically provide that the 
bill's provisions would impose no criminal penalties,\36\ the 
proposal was rejected on a party-line vote.
---------------------------------------------------------------------------
    \36\ The amendment stated in relevant part: ``Sec. 103 CRIMINAL 
LIABILITY.--No violation of the provisions of this title shall result 
in criminal liability.''
---------------------------------------------------------------------------

III. H.R. 2260 APPEARS TO SUBJECT PHYSICIANS AND PHARMACISTS TO STRICT 
                LIABILITY FOR EFFECTIVELY TREATING PAIN

    We also object to the strict liability provisions that 
appear to be created by the bill, which threaten to penalize 
physicians and pharmacists whose patients died from an 
intentional dispensation of controlled substances even if the 
death was not intended.
    The bill would subject physicians to this type of strict 
liability because of the purpose and operation of the CSA. 
Under current law, if a person or entity distributes illegal 
controlled substances, they are subject to automatic sanctions. 
There is no need for the law to countenance unintentional 
distributions of illegal drugs such as heroin because 
professionals should have the knowledge and discretion to avoid 
any such distribution.
    Thus, for good reason the CSA is currently written as a 
strict liability law for both criminal and civil purposes and 
contains no intent requirement. For example, with regard to 
criminal liability, Sec. 841 of the CSA States, ``[i]n the case 
of a violation of subsection (a) of this section involving [a 
specific quantity of a specific controlled substance], such 
person shall be sentenced to a term of imprisonment which may 
not be less than [a specific number of years] and if death . . 
. results from the use of such substances, shall not be less 
than [term of imprisonment], a fine not to exceed [specific 
amount], or both.'' \37\ And with regard to the civil 
liability, Sec. 824 of the CSA provides that the Attorney 
General can revoke the controlled substance license of any 
physician who ``has committed such acts as would render his 
registration under section 823 of this title inconsistent with 
the public interest as determined under such section.'' \38\
---------------------------------------------------------------------------
    \37\ 21 U.S.C. Sec. 841(b).
    \38\ Id. Sec. 824(a)(4). In determining what conduct is in the 
public interest for controlled substances, the Attorney General must 
consider, among other things, (1) a registrant's compliance with 
Federal, State, and local laws, and (2) the public health and safety. 
See id. Sec. 823. The statute does not specifically state that using a 
controlled substance outside of a legitimate medical purpose is 
inconsistent with the public interest, but courts have upheld Drug 
Enforcement Administration orders to registrants implying that non-
legitimate medical uses of controlled substances would not be within 
the public interest. See Harline v. DEA, 148 F.3d 1199 (10th Cir. 
1998).
---------------------------------------------------------------------------
    The problem arises in that H.R. 2260 introduces an 
offense--distribution of controlled substances that leads to 
death\39\--that is inherently intent based, yet the bill 
contains no provision that allows the physician or pharmacist 
to avoid strict or automatic legal responsibility by 
establishing that they merely intended to relieve pain, even 
where death inadvertently results, as is often the case in 
terminal illness situations.
---------------------------------------------------------------------------
    \39\ Again, this offense is introduced by virtue of Sec. 101 of 
H.R. 2260 which provides that ``Nothing in this section authorizes 
intentionally dispensing, distributing, or administering a controlled 
substance for the purpose of causing death or assisting another person 
in causing death.''
---------------------------------------------------------------------------
    The bill's proponents argue that its introductory language, 
which States that controlled substances can be used to relieve 
pain even if the risk of death is increased,\40\ would protect 
doctors whose patients unintentionally die from controlled 
substances. The introductory language is, however, not written 
in an operative manner; it merely states that it is the bill's 
purpose that controlled substances be used to relieve pain even 
if such substances increase the risk of death. There is no 
assurance that courts or prosecutors would refer to that 
language in determining whether to prosecute and/or incarcerate 
physicians or pharmacists who might dispense controlled 
substances that unintentionally led to death.
---------------------------------------------------------------------------
    \40\ H.R. 2260 Sec. 101.
---------------------------------------------------------------------------
    The weight of legal authority supports the view that the 
bill may result in strict liability for physicians and 
pharmacists. The law firm of Heller Ehrman has stated that the 
legislation would leave physicians exposed to penalties ``even 
if their subjective intent was to provide palliative care.'' 
\41\ In addition, the Supreme Court has reaffirmed the view 
that the CSA operates to provide strict liability.\42\
---------------------------------------------------------------------------
    \41\ Letter from Nicholas W. van Aelstyn, Heller Ehrman White & 
McAuliffe, to the Honorable Ron Wyden (D-OR), U.S. Senator (July 21, 
1999).
    \42\ United States v. Johnson, 71 F.3d 539, 542 (6th Cir. 1995) 
(holding that, to obtain a conviction under the CSA, the Government 
must prove that (1) the defendant distributed a controlled substance, 
(2) the defendant acted intentionally or knowingly, and (3) the 
defendant acted without a legitimate medical purpose and outside the 
course of professional practice) (citing United States v. Varma, 691 
F.2d 460, 462 (10th Cir. 1982)).
---------------------------------------------------------------------------
    Although the majority refuses to acknowledge the strict 
liability implications of the bill, their actions and the 
bill's legislative history suggest otherwise. Again, if the 
majority wanted to require that intent be established for a 
doctor or pharmacist to violate the CSA, they could have done 
so by stating as much in the text of the bill, but they failed 
to do so. Moreover, the majority tellingly rejected two 
amendments offered by Ranking Member Conyers (D-MI) that would 
have (1) required the Government to prove the intent of the 
physician or pharmacist to cause death,\43\ and (2) permitted 
physicians and pharmacists an affirmative defense to establish 
that they did not intend to cause death through the 
distribution of a controlled substance.\44\
---------------------------------------------------------------------------
    \43\ The amendment stated: ``(4) In any proceeding governed by the 
rule set forth in this subsection, the party asserting conduct that is 
not consistent with public health and safety or not consistent with the 
public interest must prove beyond a reasonable doubt (in a criminal 
case) or by clear and convincing evidence (in a civil proceeding) the 
intent to dispense, distribute, or administer a controlled substance 
for the purpose of causing death or assisting another person in causing 
death.''
    \44\ The amendment stated: ``(4) AFFIRMATIVE DEFENSE.--It shall be 
an affirmative defense to a civil or criminal proceeding under this 
title that a person charged with a violation under this subsection was 
intending to alleviate pain or discomfort in the usual course of 
professional practice, including dispensing, distributing, or 
administering a controlled substance, even if the use of such a 
substance may have increased the risk of death. Such affirmative 
defense may be established by a preponderance of the evidence.''
---------------------------------------------------------------------------

IV. H.R. 2260 CONTRAVENES THE PURPOSE OF THE CONTROLLED SUBSTANCES ACT 
                AND IMPOSES ADMINISTRATIVE DIFFICULTIES

    This bill is misguided also in the manner in which it 
attempts to ban physician-assisted suicide and in its creation 
of administrative difficulties. As discussed earlier, the bill 
amends the CSA in a specific attempt to regulate medical 
practice and prohibit the use of controlled substances to cause 
death. The CSA, however, was not intended to regulate medical 
decision making; it clearly states that it is, instead, a law 
that addresses drug diversion and trafficking.\45\ In opposing 
predecessor legislation last Congress, the Justice Department 
recognized this and noted these types of bill ``would 
inevitably divert [DEA] attention away from the core mission of 
strictly controlling Schedule I drugs and preventing the abuse, 
diversion of and trafficking in all scheduled drugs.'' \46\ 
David E. Joranson of the University of Wisconsin's 
Comprehensive Cancer Center pointed out that, to the extent 
medical and scientific decisions are made on the Federal level, 
they should be within the province of the U.S. Department of 
Health of Human Services, not the U.S. Department of 
Justice.\47\
---------------------------------------------------------------------------
    \45\ 21 U.S.C. Sec. Sec. 801-801a.
    \46\ Letter from L. Anthony Sutin, Acting Asst. Attorney General, 
Office of Legislative Aff., U.S. Dept. of Justice, to the Honorable 
Henry J. Hyde (R-IL), Chair, House Comm. on the Judiciary 1 (Aug. 3, 
1998).
    \47\ June 24, 1999 Subcomm. Hearing (written statement of David E. 
Joranson, Pain & Policy Studies Group, Univ. of Wisconsin Comprehensive 
Cancer Center, at 2). If Congress does change current law with respect 
to the legal uses of drugs, it should amend the Federal Food, Drug and 
Cosmetic Act, which governs the use of drugs for medical and scientific 
purposes. Id. (written statement of David E. Joranson, at 3).
---------------------------------------------------------------------------
    Not only does the bill contort the purpose of the CSA, it 
also would lead to the establishment of a new and burdensome 
oversight mechanism whereby the DEA would be expected to police 
every prescription that every healthcare worker, distributor, 
and manufacturer in the country dispenses. Moreover, the DEA 
could monitor such activities only by imposing vast new 
paperwork requirements on all regulated parties or through a 
network of healthcare workers reporting on each other, the 
likes of which would be unprecedented and fundamentally 
destructive to the proper functioning of the practice of 
medicine. All of this would occur even though the DEA has no 
expertise whatsoever in medical care.\48\
---------------------------------------------------------------------------
    \48\ Id. (written statement of David Orentlicher, MD, Director, 
Center of Law and Health, Indiana Univ. School of Law, at 3) (``By 
empowering officials of the Drug Enforcement Administration and other 
Federal, State and local law enforcement personnel to prosecute 
physicians to determine their intent, this Act subjects physicians who 
care for dying patients to the oversight of police with no expertise in 
the provision of medical care.'').
---------------------------------------------------------------------------

                               CONCLUSION

    Although some of us do not support the practice of 
physician-assisted suicide, none of us can support this 
legislation. This bill overrides Oregon law, which legalized 
physician-assisted suicide in that State. While there have been 
instances in our Nation's history where it was appropriate for 
Federal law to supercede State law in order to fulfill 
constitutional imperatives, such as the realm of civil rights, 
this is not one of those occasions. States historically have 
regulated the medical profession, and the Federal Government 
has no constitutional authority or imperative to do so now.
    Furthermore, we are concerned about the effect this 
legislation would have on the treatment of pain. If this 
legislation is enacted, physicians will fear writing 
prescriptions that could trigger a Federal enforcement process 
that would ruin their careers and throw them in jail. 
Consequently, they will be reluctant to prescribe the large 
doses of narcotics that are often required to treat 
incapacitating levels of pain. Patients will be left to suffer.
    Finally, this legislation will not end the practice of 
physician-assisted suicide. To the extent that supporters of 
this bill hope to put an end to physician-assisted suicide, 
they will be disappointed once the bill is put into practice. 
Physicians will still be able to use non-controlled substances 
to assist suicides. Because of the ill effects this legislation 
will have on the well-being of patients and on the rights of 
the States, we must dissent.
                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Steven R. Rothman.
                                   Anthony D. Weiner.
                                   Tammy Baldwin.

                                  
