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THE OREGONIAN (February 2, 2001; page A07)

JIM BARNETT of the Oregonian Staff

President Bush might issue an executive order that would undo the Clinton administration’s interpretation of a federal drug statute and block Oregon’s law allowing physician- assisted suicide , Sen. Gordon Smith, R-Ore., said Thursday.

Smith said he talked to Bush a few days after his inauguration, then followed up with a letter on Jan. 25. Among other things, Smith said that he wanted to ensure that Oregon doctors are not prosecuted retroactively.

“I said to him, ‘I would appreciate having some input into any clarifications you make because I think there are some legitimate concerns Oregonians are asking for that deserve to be respected within the boundaries of federal law,’ ” Smith said.

At issue is the administration’s interpretation of the Controlled Substances Act, which regulates strong drugs such as barbiturates. In 1998, then-Attorney General Janet Reno ruled that the federal law did not apply to medicinal uses of listed drugs.

Reno’s ruling allowed Oregon doctors to continue prescribing lethal doses of controlled drugs to terminally ill patients. But Bush said during the campaign that he disagreed with Reno. Assisted suicide was not a “legitimate” medical use of controlled drugs, he said.

The Senate cleared the way for the new administration to overturn Reno’s opinion when it voted Thursday to confirm former Sen. John Ashcroft, R-Mo., as the new attorney general. But Smith said that Bush is more likely to move slowly and deliberately.

“He said, ‘There is nothing immediate, it is not on my radar screen, but it is something that will undoubtedly arise,’ ” Smith recalled.

“I hope it’s an actual rule-making process,” Smith added. “I hope it’s a very thoughtful, deliberative thing that will take into account all of the legitimate concerns Oregonians have about pain relief.”

The White House had no comment Thursday. Smith said he learned of Bush’s possible plans for an executive order “through the grapevine,” but he declined to name his source. In his letter, he urged Bush to include three specific provisions if an order is issued. They are:

* A statement to assure doctors that federally controlled drugs can be used to treat pain, even in instances when their use might increase the risk of a patient’s death.

* Language stating that the order does not expand or modify the authority of the Drug Enforcement Administration.

* A prohibition against retroactive prosecutions of doctors who use federally controlled drugs in an assisted suicide.

The provisions listed in Smith’s letter jibe with those of the Pain Relief Promotion Act. The bill, sponsored by Sen. Don Nickles, R- Okla., would have amended the Controlled Substances Act to prohibit the use of listed drugs for assisted suicide .

A version of the bill passed the House in October 1999, but it stalled in the Senate as the 106th Congress drew to a close last year, thanks largely to a filibuster threat by Sen. Ron Wyden, D- Ore.

Wyden and other critics said the bill would subject doctors to investigation by federal drug agents. The result would be a “chilling effect” on doctors’ willingness to prescribe controlled drugs to treat the pain of chronically ill patients.

It’s unclear whether Nickles will reintroduce the bill in the new 107th Congress. But Wyden and other defenders of the Oregon law have said that with Bush in the White House, they expect the next step to be a court challenge.

An order from Bush could be the impetus. Oregon Attorney General Hardy Myers has said he would challenge an order that clearly renders Oregon’s one-of-a-kind law inoperable. The case likely would begin in federal court and could go as far as the Supreme Court.XX Smith said he had not yet received feedback from Bush about his Jan. 25 letter. But he said he wanted it to be a “placeholder” when the administration does act.

“It’s a serious subject,” Smith said.

THE SMITH LETTER Here are excerpts from the letter from Sen. Gordon Smith, R-Ore., to President Bush, dated Jan. 25:

Dear Mr. President:

It has recently come to my attention that you are considering issuing an executive order restoring enforcement of the Controlled Substances Act (CSA) in cases where federally controlled drugs are intentionally used to cause a person’s death by assisted suicide or euthanasia.

As you know, such an action would make it illegal for a medical practitioner, under Oregon law, to prescribe a federally controlled substance for the explicit purpose of physician- assisted suicide . While I have always been forthright and honest regarding my personal opposition to physician- assisted suicide , I nevertheless believe that we must act compassionately to address the needs that underlie support for assisted suicide . . .

Assisted suicide is often seen as the only way to escape the terrible pain that sometimes accompanies terminal illnesses. Despite the best intentions of health care professionals, pain is often undertreated because of the inadequate training of physicians in its management. For better and for worse, our health care system also tends to focus more on curing diseases rather than the management of a patient’s pain and other symptoms . . .

To address this need, I co-sponsored the Conquering Pain Act (S. 941) with my fellow Oregon Senator Ron Wyden in the last Congress. Despite my opposition to assisted suicide , I still recognize the need to increase access to effective pain and symptom management for chronic pain and terminally ill patients.

Among other directives, S. 941 would have ordered the Medicare Payment Advisory Commission to study the way Medicare policies respond to financial issues regarding pain management, palliative care services and hospice care. In addition, the bill would have provided grants for national support networks created to improve the access and quality of pain and symptom management . . .

I hope you will support these goals when we re-introduce this legislation in the coming months. I would also strongly urge you to include the following provisions in any executive order you may issue on assisted suicide :

1. That it is still a legitimate clinical use of controlled substances to alleviate pain and discomfort in the usual course of professional practice, even in cases where such legitimate use may increase risk of death. Such a clear provision would assure doctors that they may aggressively treat their patients with larger, more effective dosages of pain-relieving drugs without fear of prosecution.

2. That your order does not expand or modify the authority of the Drug Enforcement Administration, but simply allows the DEA to carry out existing provisions of the Controlled Substances Act.

3. That enforcement of the relevant provisions of the Controlled Substances Act will not be applied retroactively. Since the Death with Dignity Act went into effect in Oregon, physicians have operated under former Attorney General Reno’s interpretation of the CSA, effectively exempting Oregon’s assisted – suicide law. It would be wholly unfair to hold doctors responsible for acting under what was then the most current federal directive . . .


Gordon H. Smith,

United States senator