[Federal Register Volume 62, Number 249 (Tuesday, December 30, 1997)]
[Rules and Regulations]
[Pages 67746-67749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33875]


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LEGAL SERVICES CORPORATION

45 CFR Part 1643


Restriction on Assisted Suicide, Euthanasia, and Mercy Killing

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This final rule is intended to implement a new statutory 
restriction that amends the Legal Services Corporation Act and is 
applicable to recipients of grants from the Legal Services Corporation. 
The restriction prohibits the use of LSC funds by recipients for legal 
or other assistance that would cause, assist in, advocate for, or fund 
assisted suicide, euthanasia, or mercy killing.

DATES: This final rule is effective on January 29, 1998.

FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, (202) 
336-8817.

SUPPLEMENATARY INFORMATION: The Assisted Suicide Funding Restriction 
Act of 1997 (``Assisted Suicide Act'' or ``Act''), Pub. L. 105-12, was 
enacted and became effective on April 30, 1997. Several provisions of 
the Assisted Suicide Act expressly apply to the Legal Services 
Corporation (``LSC'' or ``Corporation''), one of which amends Section 
1007(b) of the LSC Act, 42 U.S.C. 2996f(b)(11). This rule is intended 
to implement this legislation as it applies to the Corporation and its 
recipients.
    On September 19, 1997, the Corporation's Operations and Regulations 
Committee (``Committee'') of the LSC Board of Directors (``Board'') 
held public hearings in Washington, DC, on a draft proposed rule in 
Washington, DC, and, after making revisions to the draft, adopted a 
proposed rule for publication in the Federal Register for public notice 
and comment. The Corporation received two timely comments, one from the 
Advocacy Training/Technical Assistance Center (``ATTAC'') and another 
from the National Legal Center for the Medically Dependent & Disabled, 
Inc. (``Legal Center''). Both comments stated that, in general, the 
proposed rule fairly and accurately reflected the intent of Congress in 
enacting the Assisted Suicide Act. ATTAC, however, recommended 
including several clarifying provisions in the final rule and 
questioned whether the recordkeeping provision should be less 
burdensome. The comment from the Legal Center urged that the final rule 
address the effect of the rule on free speech activities in a public 
forum. These comments are addressed more specifically in the section-
by-section analysis below.
    On November 14, 1997, the Committee met in Washington, DC, to 
consider public comment and act on a draft final rule. The Committee 
made several clarifying changes to the proposed rule and recommended 
adoption of the revised rule to the Board. The Board adopted the 
recommended rule as final on November 15, 1997.

Background and Summary of Law

    The stated purpose of the Assisted Suicide Act is to maintain 
current Federal policy that Federal funds not be used to support, 
assist in, or advocate for assisted suicide, euthanasia or mercy 
killing. H. Rep. No. 46, 105th Cong., 1st Sess. at 3 (April 8, 1997). 
Although assisted suicide, euthanasia and mercy killing are illegal in 
almost all states, Congress was concerned that pending litigation might 
change the status quo and wanted to make it clear by legislation that, 
regardless of a change in State law, Federal policy would remain the 
same. H. Rep. at 3-4. Subsequent to the passage of the Act, the Supreme 
Court upheld as constitutional laws in the States of New York and 
Washington which prohibit assisted suicide and euthanasia. See Vacco v. 
Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 
2302 (1997). The State of Oregon, on the other hand, adopted an 
initiative in 1996 that legalized physician-assisted suicide for

[[Page 67747]]

competent, terminally ill adults. H. Rep. at 4. Court challenges and a 
recent voter initiative effort have so far failed to overturn the law 
and, absent a successful legal challenge, the law is poised to go into 
effect. See Washington Post, Nov. 5, 1997 at A-1, col. 4; Lee v. 
Oregon, 107 F.3d 1382 (9th Cir. Feb. 27, 1997); Certiorari denied, 1997 
WL 274930, ______ S. Ct. ______, (Oct. 14, 1997) (No. 96-1824).
    The Assisted Suicide Act applies to numerous Federally funded 
health care programs and facilities, such as Medicare, Medicaid, 
CHAMPUS and the veterans and military health care systems. It also 
applies to certain legal aid and advocacy programs, including the Legal 
Services Corporation.
    Section 9 of the Assisted Suicide Act amends Section 1007(b) of the 
LSC Act to provide that ``No funds made available by the Corporation 
under this title, either by grants or contract, may be used * * * to 
provide legal assistance in a manner inconsistent with the Assisted 
Suicide Funding Restriction Act of 1997.'' Section 5 of the Assisted 
Suicide Act sets out the restrictions as they apply to LSC funds by 
generally prohibiting the use of appropriated funds for legal or other 
assistance for the purpose of (1) securing or funding any activity or 
service that would assist in or cause the suicide, euthanasia, or mercy 
killing of an individual; (2) compelling any person or entity to 
provide funding or service for such purposes; or (3) asserting or 
advocating a legal right to assisted suicide, euthanasia or mercy 
killing. Finally, Section 3(b) clarifies what activities are not 
included within the restrictions.
    This final rule implements those sections of the Act that apply to 
the Corporation. A section-by-section analysis is set out below.

Section-by-Section Analysis

Section 1643.1  Purpose

    The purpose of this rule is to ensure that LSC recipients do not 
use any LSC funds to engage in legal assistance activities inconsistent 
with the Assisted Suicide Act.

Section 1643.2  Definitions

    The definitions in this section are all based primarily on the 
House Report for the Assisted Suicide Act and the common dictionary 
definitions of the terms. H. Rep. at 12; Random House Webster's College 
Dictionary (1997) (``Webster's'').
    Assisted suicide is defined as providing any means to another 
person to enable or assist that person to commit suicide. See Webster's 
at 80 (suicide aided by a person, esp. a physician, who organizes the 
logistics of the suicide). For example, if a doctor provided a person 
with a lethal drug overdose so that the person could commit suicide by 
ingesting the lethal overdose, the action of providing the drug 
overdose would constitute assisted suicide.
    Euthanasia and mercy killing have the same meaning. The consistent 
use of both terms throughout the Act might suggest that they are two 
different activities. However, both the House Report and Webster's 
Dictionary give them the same meaning. Apparently, State laws commonly 
use the terms together or use one term or the other to mean the same 
activity.\1\ Euthanasia and mercy killing are defined as the use of 
active means by one person to cause the death of another person for 
reasons assumed to be merciful, regardless of whether the person who is 
killed consents to be killed. According to the House Report, such a 
death is often considered merciful because the person is deemed to be 
dying or suffering or the person is considered to be a burden on 
family, community or society. H. Rep. at 12.
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    \1\ The terms are found in statues from 45 States and the 
District of Columbia, which disapprove of euthanasia, mercy killing, 
suicide, or assisted suicide in their natural death/living will 
statutes, or in their durable power of attorney for health care 
acts. For citations to these statutes, see Relief or Reproach? 
Euthanasia Rights in the Wake of Measure 16, 74 Oregon Law Review, 
449, 462 notes 44 and 45 (Summer 1995).
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    Suicide is defined as the taking of one's own life voluntarily and 
intentionally and is included in this rule to clarify its meaning 
within the term assisted suicide.

Section 1643.3  Prohibition

    This section prohibits the use of LSC funds by recipients for legal 
or other assistance for those activities delineated therein.
    Paragraph (a) prohibits a recipient from using LSC funds for any 
action that would cause or assist in causing the suicide, euthanasia or 
mercy killing of an individual. This would include, for example, 
providing a client with assistance to obtain the means of death or 
providing a client the financial means for death by suicide or 
euthanasia.
    Paragraph (b) prohibits the use of LSC funds for compelling any 
person or private or governmental entity to engage in the activities 
prohibited in paragraph (a). For example, a recipient could not provide 
legal assistance to a client for the purpose of suing a public or 
private hospital to permit the client to receive assistance in 
committing suicide in its facilities.
    Paragraph (c) implements Section 5(a)(3) of the Assisted Suicide 
Act and prohibits asserting or advocating a legal right to cause or 
assist in causing the suicide, euthanasia, or mercy killing of an 
individual. This means, for example, that legal assistance may not be 
provided to assert that a law or regulation prohibiting or regulating 
assisted suicide, euthanasia, or mercy killing is unconstitutional or 
otherwise in violation of the law. It also prohibits any lobbying 
efforts to promote or advocate for passage of legislation that would 
legalize assisted suicide, euthanasia, or mercy killing.
    The comment from the Legal Center urged the Corporation to clarify 
that paragraph (c) should not be construed in a way that is 
inconsistent with constitutional protections for free speech in the 
context of a public forum as set out in Rust v. Sullivan, 500 U.S. 
173(1991) and Rosenberger v. Rectors and Visitors of the University of 
Virginia, 115 S.Ct. 2510 (1995), because a failure to do so might 
jeopardize the entire regulation. The Legal Center pointed out that 
when President Clinton signed the Assisted Suicide Act, he issued a 
statement on Section 5(a)(3) of the Act that directed executive 
agencies to implement the legislation in a way that would protect the 
free exchange of ideas in public forums. The President's statement 
provided that:

    The Department of Justice has advised * * * that a broad 
construction of this section would raise serious First Amendment 
concerns. I am therefore instructing the Federal agencies that they 
should construe section 5(a)(3) only to prohibit Federal funding for 
activities and services that provide legal assistance for the 
purpose of advocating a right to assisted suicide, or that have as 
their purpose the advocacy of assisted suicide, and not to restrict 
Federal funding for other activities, such as those that provide 
forums for the free exchange of ideas. In addition, I emphasize that 
section 5(a)(3) imposes no restriction on the use of nonfederal 
funds.

Statement by the President, April 30, 1997; see also 143 Cong. Rec. 
S3264-65 (daily ed. April 16, 1997) (letter of Andrew Fois, Asst. 
Attorney General, Department of Justice). Although the Legal Center 
recognized that the Corporation is not subject to executive orders, it 
suggested three possible actions to be taken by the Corporation 
depending on the applicability of the law on public forums to LSC-
funded legal aid programs. If it is possible for LSC recipients to use 
LSC funds to create a public forum, the Legal Center recommended that 
the rule should include an express public forum exception. However, if 
LSC funds may

[[Page 67748]]

not be used to create public forums, the Legal Center suggested that 
this limitation should be made clear in the commentary to the final 
rule. Finally, the Legal Center suggested that, even if public forums 
may not be financed with LSC funds under current law, perhaps the rule 
should include an exception in case the law should change in the 
future.
    Because LSC programs are not public forums and LSC funds may not be 
used to create public forums, the Board adopted the second suggestion 
made by the Legal Center. The Board did not adopt the third suggestion 
because an express public forum exception might inadvertently suggest 
to recipients that LSC funds may be used for public forum activities.
    The cases cited in the Legal Center's comment dealt with 
traditional public forums, such as universities, parks, and public 
streets, which are forums ``created by government designation as a 
place or channel of communication for use by the public at large for 
assembly and speech.'' Cornelius v. NAACP Legal Defense & Educational 
Fund, Inc., 473 U.S. 788, 802 (1985). Rosenberger involved a state 
university's efforts to exclude religious groups from a general funding 
program intended to foster a diverse range of student publications. 
Rust, by contrast, involved government support for a limited range of 
family planning services; although those services did involve speech, 
the purpose of the program was to provide the services to clients 
rather than promote a diversity of views.
    The LSC program is a nonpublic forum much like the Title X program 
in Rust. LSC's enabling statute and its regulations sharply limit 
advocacy activities and define LSC's purpose as meeting the basic legal 
needs of the poor rather than facilitation of expression. Nor do LSC 
grantees create public forums when they conduct training sessions or 
develop training manuals on end-of-life issues relating to advance 
directives or powers of attorney for health care; indeed, LSC's 
training restriction prohibits recipients from using any funds to 
advocate particular public policies or to train participants to engage 
in restricted activities.\2\ These limitations on the scope of the LSC 
program bar any inference that, in funding that program, Congress has 
attempted to create a public forum.
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    \2\ This restriction was recently upheld against constitutional 
challenge in Legal Aid Society of Hawaii v. Legal Services 
Corporation, Civ. No. 97-00032 (D. Hawaii, Aug. 1, 1997).
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Section 1643.4  Applicability

    Paragraph (a) of this section is based on Section 3(b) of the 
Assisted Suicide Act, which clarifies that the Act's restrictions do 
not apply to or affect any limitation relating to certain activities. 
Subparagraphs (a)(1) through (a)(3) clarify that the restrictions are 
intended to include the use of active means of causing death, such as 
by lethal injection or the provision of a lethal oral drug overdose, 
but do not apply to or affect any limitation relating to decisions to 
withhold or withdraw medical care, medical treatment, nutrition, or 
hydration. Nor do the restrictions apply to or affect limitations 
relating to abortion activities. This means that the Corporation's 
current restrictions on abortion activities are unaffected by this rule 
and are still in full force and effect in their current status, see 45 
CFR Sec. 1610.2(a)(7) and (b)(10). To clarify the meaning of the phrase 
``or affect any limitation relating to'' included in the introductory 
language of paragraph (a) in the proposed rule, the Board deleted the 
phrase from the beginning of the paragraph and instead added a sentence 
at the end of the paragraph, which now provides that Sec. 1643.3 shall 
not be interpreted as limiting or interfering with the operation of any 
other statute or regulation governing the activities listed in 
Sec. 1643.3(a)
    LSC recipients traditionally do not become involved in legal 
assistance in the area of assisted suicide or euthanasia, but they do 
provide legal assistance to clients in preparing advance directives, 
such as living wills and powers of attorney. The preparation of such 
documents will generally be unaffected by this rule, because the rule's 
restriction applies only to active means of causing death. Advance 
directives normally apply to passive actions, such as withholding or 
withdrawing nutrition or medical care. Only if an advance directive 
seeks to secure death by active means, that is, by assisted suicide, 
euthanasia or mercy killing, would it be restricted by this rule. 
Although this is unlikely, because such actions are illegal in most 
States, it may now be permissible in Oregon, where the law permits 
assisted suicide. Recipients in Oregon, therefore, should take special 
care to ensure that any legal assistance they provide regarding advance 
directives is consistent with this rule.
    ATTAC urged the Corporation to include language in the rule itself 
to reflect the preamble discussion of advance directives. The Board did 
not agree. Advance directives constitute one example of activity 
already implicated by the language of paragraph (a) and a separate 
reference to advance directives in unnecessary and might cause 
confusion. The preamble discussion is intended to state how the 
corporation will interpret paragraph (a) as to advance directives and 
provides sufficient guidance to recipients. The Corporation routinely 
provides the preamble along with the text of final published rules to 
recipients as a matter of practice.
    Subparagraph (a)(4) clarifies that the restriction does not include 
treatment aimed solely at alleviating suffering, even if the treatment 
has the unintended consequence of risking or shortening life. Thus, The 
restriction would not include the administration of morphine for the 
purpose of alleviating pain, even if its use might risk causing death 
or risk shortening life because it might also have the side effect of 
suppressing respiratory functions. The restriction, however, would 
include treatment that has a two-fold purpose of alleviating pain or 
discomfort and causing death.
    Paragraph (a)(5) was added in response to a comment from ATTAC 
which urged the Corporation to clarify that the prohibition in 
Sec. 1643.4 does not prohibit recipients from providing information on 
applicable law on assisted suicide, euthanasia or mercy killing, or 
from counseling clients about other forms of health care, such as 
hospice care. The Board agreed that permitting recipients to provide 
factual information regarding the law in these areas is consistent with 
the Assisted Suicide Act. The House Report makes this clear by 
explaining:

    An advocacy program could provide factual answers to a client's 
questions about State law on assisting suicide, since that alone 
would not be providing assistance for such purposes. Similarly, 
these provisions do not prohibit such programs from counseling 
clients about alternatives to assisted suicide, such as pain 
management, mental health care and community-based services for 
people with disabilities.

H. Rep. at 18-19. The Board decided not to include a reference in 
paragraph (5) to counseling activities, as suggested by ATTAC, because 
it is already implied by the terms of the rule that recipients are not 
prohibited from providing legal counsel in such areas as hospice care, 
mental health care or services for the disabled, as long as such 
assistance does not include activities prohibited by Sec. 1643.3 of 
this part.
    Paragraph (b) clarifies that the prohibition on LSC funds does not 
apply to a recipient's non-LSC funds. Section 5 of the Assisted Suicide 
Act expressly applies the restriction only to

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``funds appropriated by Congress.'' This is also reflected in the House 
Report, which provides:

    Section 5 is not intended to have the effect of de-funding an 
entire program, such as a Legal Services program or other legal or 
advocacy program, simply because some State or privately funded 
portion of that program may advocate for or file suit to compel 
funding or services for assisted suicide. This section is intended 
only to restrict Federal funds from being used for such activities.

House Report at 19-20. This distinction is particularly important for 
recipients in the State of Oregon, where the law now permits assisted 
suicide. If recipients in Oregon undertake any of the activities 
prohibited by this part, they must be able to demonstrate that no LSC 
funds supported the activities.
    In addition, recipients may have other Federal grants restricted by 
various provisions of the Assisted Suicide Act. This paragraph does not 
affect the recipient's obligation to comply with all the terms of such 
a grant. Although this rule restricts only the use of LSC grant funds, 
a recipient's other funds are still subject to any restrictions that 
are included in other grant agreements.

Section 1643.5  Recipient Policies and Recordkeeping

    The proposed rule required recipients to establish written policies 
and procedures to guide the recipient's staff to ensure compliance with 
this rule and to maintain sufficient documentation to demonstrate 
compliance with this part. ATTAC urged the Corporation to revise this 
section to minimize the recordkeeping burden of recipients and noted 
that the preamble to the proposed rule stated that ``the type of 
recordkeeping necessary to demonstrate compliance with this rule would 
be documentation that only non-LSC funds were used for any activities 
prohibited by this rule.'' ATTAC interpreted this statement as 
requiring recipients to create new records to ensure compliance. The 
Board did not revise the recordkeeping requirement because it is not 
new to recipients. To comply with this requirement, recipients need 
only follow their normal accounting standards and procedures.
    The Board did, however, delete the requirement that recipients 
adopt procedures because no procedures should be necessary for an 
activity in which the recipients must not engage. It is sufficient for 
recipients to establish a policy prohibiting engagement in the 
prohibited activities.

List of Subjects in 45 CFR Part 1643

    Grants, Lobbying, Health care, Legal Services.

    For reasons set forth in the preamble, LSC amends CS Chapter XVI of 
Title 45 by adding part 1643 as follows:

PART 1643--RESTRICTION ON ASSISTED SUICIDE, EUTHANASIA, AND MERCY 
KILLING

Sec.
1643.1  Purpose.
1643.2  Definitions.
1643.3  Prohibition.
1643.4  Applicability.
1643.5  Recipient policies and recordkeeping.

    Authority: Pub. L. 105-12; 42 U.S.C. 2996f(b)(11).


Sec. 1643.1  Purpose.

    This part is intended to ensure that recipients do not use any LSC 
funds for any assisted suicide, euthanasia or mercy killing activities 
prohibited by this part.


Sec. 1643.2  Definitions.

    (a) Assisted suicide means the provision of any means to another 
person with the intent of enabling or assisting that person to commit 
suicide.
    (b) Euthanasia (or mercy killing) is the use of active means by one 
person to cause the death of another person for reasons assumed to be 
merciful, regardless of whether the person killed consents to be 
killed.
    (c) Suicide means the act or instance of taking one's own life 
voluntarily and intentionally.


Sec. 1643.3  Prohibition.

    No recipient may use LSC funds to assist in, support, or fund any 
activity or service which has a purpose of assisting in, or to bring 
suit or provide any other form of legal assistance for the purpose of:
    (a) Securing or funding any item, benefit, program, or service 
furnished for the purpose of causing, or the purpose of assisting in 
causing, the suicide, euthanasia, or mercy killing of any individual;
    (b) Compelling any person, institution, or governmental entity to 
provide or fund any item, benefit, program, or service for such 
purpose; or
    (c) Asserting or advocating a legal right to cause, or to assist in 
causing, the suicide, euthanasia, or mercy killing of any individual.


Sec. 1643.4  Applicability.

    (a) Nothing in Sec. 1643.3 shall be interpreted to apply to:
    (1) The withholding or withdrawing of medical treatment or medical 
care;
    (2) The withholding or withdrawing of nutrition or hydration;
    (3) Abortion;
    (4) The use of items, goods, benefits, or services furnished for 
purposes relating to the alleviation of pain or discomfort even if they 
may increase the risk of death, unless they are furnished for the 
purpose of causing or assisting in causing death; or
    (5) The provision of factual information regarding applicable law 
on assisted suicide, euthanasia and mercy killing. Nor shall 
Sec. 1643.3 be interpreted as limiting or interfering with the 
operation of any other statute or regulation governing the activities 
listed in this paragraph.
    (b) This part does not apply to activities funded with a 
recipient's non-LSC funds.


Sec. 1643.5  Recipient policies and recordkeeping.

    The recipient shall adopt written policies to guide its staff in 
complying with this part and shall maintain records sufficient to 
document the recipient's compliance with this part.

    Dated: December 23, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-33875 Filed 12-29-97; 8:45 am]
BILLING CODE 7050-01-M