11/11/01 BY JIM BARNETT, Sunday Oregonian
WASHINGTON — Nathan Diament spent two years lobbying Congress to shut down Oregon’s assisted-suicide law. But when Bush administration officials called Tuesday to say they had done the job by administrative action, he was not only pleased but also surprised.
“I wish I could take credit for it,” said Diament, who works for the Union of Orthodox Jewish Congregations of America. “But I can’t.”
Although President Bush declared his opposition to the Oregon law during the 2000 campaign, his administration’s plan to prevent assisted suicide was carried out under a blanket of secrecy so thick that some allies, such as Sen. Gordon Smith, R.-Ore., say they didn’t see it before it was announced.
Politically, the Oregon law was an easy target. It had generated relatively little attention outside the state, but it had drawn the wrath of Bush’s conservative base — particularly religious leaders upset by Bush’s decision to allow research on human stem cells.
The secrecy exercised in blocking the Oregon law is typical of the Bush administration, according to allies and rivals alike: When possible, administration officials translate controversial political promises into action with minimal public attention.
For Bush supporters, the new assisted-suicide policy was cause for celebration. Some said they have learned to welcome such policy decisions like the arrival of a present that had been lost in the mail.
“Quite frankly, one of the advantages of the way the Bush administration approaches these things is, if the leaks get out beforehand, that gives the opportunity for opposition to mobilize,” said Burke Balch, director of medical ethics at the National Right to Life Committee.
But those left out of the process argue that a lack of dialogue can translate into shortsighted policy and diminished credibility. In their view, Bush’s approach to assisted suicide and the related issue of pain treatment is a classic example of good intentions spoiled by poor execution.
“I just wanted to make sure he understood what the issue was, and I didn’t get that chance,” said Rep. Darlene Hooley, D-Ore., who had asked Bush for an audience early this year. “I’m disappointed about that.”
Stem cell decision
The decision to block assisted suicide in Oregon stands in sharp contrast to the administration’s approach to research on stem cells from human embryos, another hot-potato issue pitting medical ethics against pro-life values.
Bush agonized publicly for weeks last summer. He was torn between prominent conservatives who urged him to allow federal sponsorship of stem cell research and religious leaders who regard destruction of embryos as murder. Bush eventually crafted a compromise that allowed research to proceed on a limited basis.
In the case of assisted suicide, Bush faced two different political circumstances that allowed him to hand off the issue to the Justice Department for quiet disposal, observers said. One, conservatives and religious leaders backed his view wholeheartedly. And two, proponents of assisted suicide lacked the resources and public interest commanded by medical researchers.
“Other than Jack Kevorkian and a little over half of Oregon, who’s out there pounding on the administration?” said Rep. Greg Walden, R- Ore., who worked to defend the Oregon law against a legislative threat in 1999. “Not many people.”
Walden, whose district covers conservative Eastern Oregon, is looking on the bright side. The new policy prompted a lawsuit from Oregon Attorney General Hardy Myers, presenting an opportunity for proponents of the Oregon law to make their case in court.
“In an odd way, Oregon may have a better opportunity to defend its voters’ intent through the courts than through the Congress,” Walden said.
The new federal policy against assisted suicide was outlined in a three-page memo signed Tuesday by U.S. Attorney General John Ashcroft and sent to Asa Hutchinson, head of the Drug Enforcement Administration.
The memo instructs federal agents that assisted suicide is not a “legitimate medical purpose” for drugs listed under the Controlled Substances Act, and it orders them to review Oregon health records for evidence. Offending doctors risk losing their federal registration to prescribe listed drugs.
To opponents of the Oregon law, the memo marked the end of a long battle. Ashcroft’s predecessor, Janet Reno, wrote an opinion in 1998 saying that the federal drug law was never intended to regulate medical practice.
That job was left to states, she said, and it was up to Oregon to decide what was best for Oregonians.
“These questions . . . are fundamental questions of morality and public policy,” Reno wrote. “Such a mission falls well beyond the purpose of the CSA.”
Republicans leaders in Congress complained that Reno had acted in secret, and her memo ignited legislative battles that flared and smoldered throughout the 106th Congress of 1999-2000.
Their legislative vehicle was called the Pain Relief Promotion Act. Sponsored by Sen. Don Nickles, R-Okla., and Rep. Henry Hyde, R-Ill., it specified that federally controlled drugs were not to be used in assisted suicide. The bill passed the House, then stalled under a filibuster threat from Sen. Ron Wyden, D-Ore., in the fall of 2000.
The issue receded from the national agenda amid controversy over the outcome of the presidential election. But once Bush took office, interest was rekindled within the new administration. Ashcroft, a former Republican senator from Missouri, quietly ordered his own review of the Controlled Substances Act with an eye toward the Oregon law.
Secrecy at a premium
In contrast to the legislative battle that had taken place on Capitol Hill, the administration’s internal debate over the Oregon law took place entirely behind closed doors and with the participation of few outsiders.
By several accounts, secrecy surrounding development of the new policy was high — even for an administration that puts a premium on shielding its deliberations from public scrutiny and is fighting a General Accounting Office inquiry into the formation of its energy policy.
A key date was June 27. On that Wednesday, Sheldon Bradshaw, an aide at the office of legal counsel, presented Ashcroft with a brief detailing the department’s case for blocking the Oregon law. But the brief was kept under wraps. Even some allies such as Diament’s group and members of Congress, including Sen. Gordon Smith, R-Ore., said they did not see the document before the new policy was unveiled Tuesday.
Smith said he met with Ashcroft in June or July to talk about nominees for U.S. attorney and federal judgeships in Oregon. Smith said he also asked Ashcroft to hold an administrative hearing before taking action on assisted suicide.
“His response was very noncommittal,” Smith said. “It was clear to me that this issue was nowhere soon to be on their radar screen.”
Why the secrecy? Susan Dryden, a spokeswoman at Justice, refused requests for interviews on behalf of Ashcroft and other department officials. She also declined to elaborate on how the policy was developed.
“We don’t comment on internal deliberations,” Dryden said. Asked why not, she said: “It’s always been part of our policy. That’s all I know.”
Administration allies said they don’t mind that the new policy was unveiled with little fanfare. And Diament said the fact that Ashcroft attended to the matter while dealing with the aftermath of the Sept. 11 terrorist attacks “shows this was an important issue to them.”
But critics said that the administration’s secretive ways undermine Ashcroft’s credibility and open the administration to speculation that the decision was driven by political considerations.
Josh Kardon, Wyden’s chief of staff, said that based on conversations with administration officials he believes the assisted suicide decision was designed to curry favor with religious groups irked by Bush’s decision on stem cell research.
“It’s old-style politics,” said Kardon. “The memo may have Ashcroft’s name on it, but the decision was driven by the political operatives in the White House.”
Ken Lisaius, a spokesman at the White House, acknowledged that Bush advisers often work closely with agency staff, but he denied that the Oregon law was a chit in a political deal.
“This administration makes decisions on their policy merits,” Lisaius said. “That has always been the manner in which decisions here are made, be they stem cell or otherwise.”
Politics aside, Hooley said, the administration squandered an opportunity to let the rest of the nation learn from Oregon’s experience with assisted suicide.
Hooley recalled her efforts to educate House colleagues before the 1999 vote. She and other members of the Oregon delegation explained that the law had opened a new chapter in a broader debate about untreated pain and that it kept law enforcement out of the doctor- patient relationship.
They weren’t easy concepts to explain, but some members began learning about a topic that is rarely discussed and not well understood, Hooley said. Now, there might not be another chance to have that debate on the national stage.
“You couldn’t educate them in a sound bite,” Hooley said. “It took time to explain what it was, why it was, and how the people in Oregon felt.”