[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
[[Page 67749]]
``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