PRPA letter

Wed Sep 20 16:12:01 PDT 2000

I believe I signed onto the list after those discussions.  It's my
understanding that PRPA is based on the federal government's authority to
regulate prescription drugs and other controlled substances.  Is it your
contention that they don't have any such authority?

Brad Clanton
Counsel
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)

-----Original Message-----
From: Garrett Epps [mailto:gepps at LAW.UOREGON.EDU]
Sent: Wednesday, September 20, 2000 2:48 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: PRPA letter

There have been a number of posts on this subject--I don't want to repeat
them all.  Some says it is and some says it ain't.  I'm an "is," myself.

"Clanton, Brad" wrote:

 How is it that PRPA is incompatible with the reasoning of these decisions?

Brad Clanton
Counsel
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)

-----Original Message-----
From: Garrett Epps [ mailto:gepps at LAW.UOREGON.EDU
<mailto:gepps at LAW.UOREGON.EDU> ]
Sent: Wednesday, September 20, 2000 1:06 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: PRPA letter

After reading attentively the posts on PRPA, I am encouraged that others may
be of my view that the proposed Act raises serious constitutional questions
in light of LOPEZ and BRZONKALA.  I am wondering whether anyone on the list
would be interested in joining with me in a brief circular letter to that
effect that could be sent to Sen. Wyden for use in his attempt to persuade
the Senate to defer consideration of the bill.  I haven't drafted language
yet but I think my draft would be short and would not say flatly that PRPA
is unconstitutional, but rather that it seems incompatible with the
reasoning in BRZONKALA in particular and that Senators might want to take
federalism concerns about the Act seriously.

If anyone is interested (I will draft and submit language, all you need to
do is say yea or nay), please email me offlist at gepps at law.uoregon.edu.

I attach hereto a news report from today's OREGONIAN suggesting that Wyden
may actually be making headway.

                  Wednesday, September 20, 2000

                  By Jim Barnett of The Oregonian staff

                  WASHINGTON -- Oregon's one-of-a-kind law allowing
physician-assisted suicide appears likely to survive a legislative threat in
the U.S. Senate, as key Democrats said Tuesday they had second thoughts
about acting before the Nov. 7 election.

 The turnabout follows weeks of persistent member-to-member lobbying by Sen.
Ron Wyden, D-Ore. Wyden has been trying to raise ethical doubts about a bill
called the Pain Relief Promotion Act that would block the Oregon law. And he
appears to be succeeding.

 "I'm not declaring victory, but I believe we have turned the corner on
protecting the vote cast by the people of Oregon," Wyden said. Oregonians
have voted twice in favor of the law.

 The pain relief bill, sponsored by Sen. Don Nickles, R-Okla., has the
support of most of the Senate's 54 Republicans. But Nickles needs at least
six Democrats to support a procedural "cloture" vote to overcome Wyden's
filibuster, and his support appears to be eroding.

 "My sense is that Ron has done his homework and has the votes to win on
cloture," said Sen. Gordon Smith, R-Ore., the only member of the Oregon
delegation to support the pain relief bill. "I don't know so. But that's my
sense."  A sign of Nickles' shifting fortunes came Tuesday, when one of his
Democratic co-sponsors said publicly that she would not support cloture.
Sen. Mary Landrieu, D-La., said that with the crush of business facing
Congress, she no longer thought it appropriate to address the issue this
year.

 "I will be voting against cloture on that bill," Landrieu said. "I
certainly am not for assisted suicide, but I believe there are many more
pressing

 issues that this Congress needs to deal with. So that's the way I'll be
voting."

 Landrieu's comments came after Senate Democrats met for their regular
Tuesday luncheon. During that meeting, Minority Leader Tom Daschle, D-S.D.,
urged members to stick together against a cloture vote on the pain relief
bill.

 Daschle's message might have sealed the pain relief bill's fate for this
year. Afterward, two others considered critical to the pain relief bill's
passage -- Sen. John Breaux, D-La., and Sen. Chris Dodd, D-Conn. --
indicated that their votes were in play.

 "I'm still thinking about it," Breaux said as he emerged from the luncheon.

 Dodd followed, saying, "I haven't (decided) yet. I haven't talked to
anybody."

 Nickles, the assistant majority leader, has been trying to get the pain
relief bill to the Senate floor for more than two years. An early version of
the bill passed the House in October 1999, and the version before the Senate
gained support early this year after it was endorsed by the American Medical
Association.

 The bill essentially nullifies the Oregon law by prohibiting doctors from
prescribing lethal doses of drugs covered by the Controlled Substances Act.
The bill gives "safe harbor" to doctors using drugs to relieve pain, but it
subjects them to criminal penalties for assisting patients in a suicide.

 Bill opponents heartened  In Oregon, right-to-die advocates took
encouragement from the latest development.

 "It sounds like the senators have finally realized that the rosy picture
that's been painted (about the pain relief bill) is not true -- that this
bill has enormous potential downsides for people who are dying," said
Barbara Coombs Lee, a leader in the campaigns to legalize assisted suicide
in Oregon.

 If the Senate bill stalls, she said, it would encourage groups in other
states to follow Oregon's example. "There are many people all over the
country who believe it is the right thing to do," she said.

 Maine residents will vote on an Oregon-style assisted-suicide initiative in
November. Alaska's supreme court is considering a right-to-die case that
could open the door to limited legalization in that state.

 Opponents of assisted suicide said they remain hopeful that the Senate
could pass the bill this year, "before any more helpless patients kill
themselves using federally controlled substances," said Dr. Greg Hamilton, a
Portland psychiatrist. Hamilton is president of Physicians for Compassionate
Care, a national group that emerged in Oregon to resist the assisted-suicide
movement.

 "The longer Oregon is allowed to use federally controlled substances to
kill patients instead of giving them the treatment they need, the bigger
this tragedy becomes," Hamilton said.  "A chilling effect"  In the Senate,
Wyden argued for months that the line between pain relief and assisted
suicide might not be apparent to federal drug agents. The result, Wyden
said, would be a "chilling effect" on doctors who, fearing investigation,
would dial back dosages and cause patients to suffer needlessly.

 Wyden got a boost this month from the American Cancer Society, which
released a position paper supporting Wyden's argument that a chilling effect
would ensue. The statement, Wyden said, gave many senators pause.

 But that argument alone failed to turn the tide on Capitol Hill, where the
legal practice of assisted suicide in Oregon is politically
indistinguishable from the illegal practice of euthanasia associated with
Dr. Jack Kevorkian.

 So Wyden pursued a backup defense that relied in part on party loyalty.
With the Nov. 7 election looming, Wyden began warning colleagues that
Nickles' bill could be their last shot to demand a floor debate on
Democratic priorities.

 At the Democrats' luncheon last week, Wyden spelled out the stakes: a
patients' bill of rights; prescription drug coverage under Medicare; a $1
boost in the minimum wage. All would be lost if they gave in to cloture, he
said.

 The strategy was risky, but it gained traction. Under Senate rules, the
pain relief bill would be one of the last legislative vehicles available to
Democrats. Suddenly, with time running short, more Democrats felt they had a
stake in Wyden's success.

 "I believe I've been helped by telling my colleagues that with all of the
important issues out there, particularly prescription drugs and a
patients' bill of rights, the last thing that would be in the public
interest would be to have a truncated debate on paralyzing Oregon's law,"
Wyden said.

 Wyden has gotten support from some of the Senate's most influential
Democrats.

 On Tuesday, Sen. Edward Kennedy, D-Mass., said he'd be willing to offer a
patients' bill of rights as one of many amendments if the pain relief bill
came to the floor.

 "I've got a whole slew of them," Kennedy said, grinning as he flipped a
telephone book-size file.

 Smith said Kennedy's statement summed up Nickles' difficulties in getting
the pain relief bill passed before adjournment, tentatively scheduled for
Oct. 6.

 "Ron Wyden is his first problem," Smith said. "His second problem is
Kennedy and others who would bring up unrelated amendments and riders.

 "One of Ron's strategies has been to run out the clock," Smith added. "And
he may have succeeded."

 Nickles, for his part, said he was still working the bill. Although a floor
vote might not be possible, Nickles could offer the pain relief bill as an
amendment to a year-end spending bill  - a possibility for which Wyden is
prepared.

 "I'm going to be watching every single bill throughout this session," Wyden
said. "He still could pursue an appropriations strategy, so I can tell you
that my staff and I aren't going to do a lot of sleeping until this session
is over."

University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403

PHONE: (541) 346-1578
  FAX: (541) 346-1564

gepps at law.uoregon.edu
Trouble sleeping? Try my latest works:
http://www.law.uoregon.edu/faculty/epps/default.html
<http://www.law.uoregon.edu/faculty/epps/default.html>

--
Garrett Epps
Associate Professor
University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403

PHONE: (541) 346-1578
  FAX: (541) 346-1564

gepps at law.uoregon.edu
Trouble sleeping? Try my latest works:
http://www.law.uoregon.edu/faculty/epps/default.html
<http://www.law.uoregon.edu/faculty/epps/default.html>

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