Brief Amici Curiae of the United States Catholic Conference et al. in support of Attorney General Ashcroft *.

• Author: Gilden, Lisa J.

Interest of Amici (1)

The United States Conference of Catholic Bishops is a nonprofit corporation organized under the laws of the District of Columbia. Its members are the active Catholic Bishops in the United States. The Bishops of Oregon are also members of the Oregon Catholic Conference. Through the Conferences the Bishops speak collegially on matters affecting the Catholic Church, its people, and society as a whole. The Conferences advocate and promote the pastoral teaching of the Church on many diverse issues, including the sanctity and dignity of human life. The ethical distinction made in law and medicine between legitimate treatment of pain and assisting suicide, a distinction that underlies the Attorney General's action in this case and that is challenged in the Intervenors' filings, has been heavily influenced by concepts of intentionality and moral responsibility that have their foundation in the Church's centuries-old teaching. The Conferences are therefore especially well-suited to address this distinction and its importance to the integrity of the medical profession and to the important societal interests in promoting health and relieving pain and suffering.

The Catholic Health Association of the United States ("CHA") is the national leadership organization of the Catholic health ministry, engaged in the strategic directions of mission, ethics and advocacy This ministry, which is comprised of more than 2,000 not-for-profit Catholic health care systems, sponsors, facilities, health plans, and related organizations, is rooted in and informed by a deeply held commitment to promote and defend human life and human dignity. CHA's interest in this case stems from its concern for the need to protect vulnerable persons; to insure appropriate care for dying persons; to preserve the integrity of the health care professions; to strengthen the bonds of community; and also to preserve the integrity of the Catholic health ministry.

Summary of Argument

"[A]ssisting suicide is not a `legitimate medical purpose.'" 66 Fed. Reg. 56607, 56608 (Nov. 9, 2001). That simple declaration is at the root of this litigation. Indeed, it would appear to be a self-evident declaration. Medicine by its very definition aims to prevent illness, to heal, and to alleviate pain. (2) Taking a human life accomplishes none of these objectives. To say that it does creates an inherent contradiction, like saying that the legitimate practice of law includes helping clients break the law. The analogy is apt because helping to kill is precisely the opposite of what medicine is and does. Cooperating with killing positively impedes the overarching goods to which medicine is devoted. This is as true on a practical level as in principle, for recourse to legitimate care of the dying, including palliative care, is advanced when ethics and law forbid doctors to help patients take their own lives. Allowing intentional lethal acts will not make it easier for patients to obtain the medical care they need, but will only impede their ability to obtain such care. What virtually every state regards as a crime, indeed as a form of homicide, does not become "medicine" simply because the perpetrator is a doctor, the patient is terminally ill, or one state has decided to rescind its own criminal penalties for the act.

The Attorney General correctly concluded that assisting suicide is not a legitimate medical purpose, but that pain management is. 66 Fed. Reg. 56607, 56608 (Nov. 9, 2001). It is apparent from its opinion and its remarks at oral argument that the District Court did not appreciate this distinction, and indeed saw assisted suicide as a form of, and indistinct from, pain management. Transcript of Oral Argument, Nov. 20, 2001, at 69 (suggesting, based on "Law Review Articles," that the medical distinction between "assisted death" and "terminal care" is "blurr[ed]"); 192 F. Supp. 2d 1077, 1079 (D. Or. 2002) (suggesting that assisted suicide serves the interest in "end[ing] suffering"). Judging from their comments both inside and outside the courtroom, it appears that the Intervenors also reject, or at least obscure, the distinction between assisting suicide and palliative care. Memorandum in Support of Intervenor-Plaintiffs' Motion to Intervene, at 2 (questioning whether a doctor will be able, absent an assisted suicide, to "provide the care that he or she deems necessary"); Marcia Coyle, U.S., Oregon to Renew Suicide Fight, The National Law Journal, Aug. 19, 2002, A1, A8 (quoting counsel for the Intervenor-Plaintiffs as saying that the Attorney General's directive will introduce "concern in the physician community that prescribing strong pain medication to dying patients could bring scrutiny and sanctions" and will "chill the willingness to prescribe" pain medication).

We file this brief to explain the ethical and legal basis for the Attorney General's twofold conclusion that assisted suicide is not a legitimate medical purpose for use of controlled substances while pain management is. In Part I, we explain the fundamental difference between treating pain and assisting suicide, addressing the District Court's apparent misconception that assisting suicide is simply a means of treating pain. We also explain how this distinction, and the understanding of assisted suicide as being outside the scope of legitimate medical practice, is consistent with longstanding tenets of the medical profession and past interpretation and enforcement of the Controlled Substances Act, facts overlooked by the District Court. In Part II, we explain how recognizing the distinction between treating pain and assisting suicide, and prohibiting the latter, has led to significant improvements in palliative care and in the ability of physicians to care for dying patients, while obliterating the distinction, as the District Court's opinion would do, could have a deleterious impact on pain management and palliative care.

Argument

1. Assisting Suicide and Treating Pain Are Fundamentally Different.

   Pain control and assisted suicide fundamentally differ in both intent and effect. A physician's intent in administering pain-killing drugs is simply "to ease his patient's pain," not to cause death. Vacco v. Quill, 521 U.S. 793, 802 (1997). A doctor who assists a suicide, however, "must, necessarily and indubitably, intend primarily that the patient be made dead." Id. at 802, quoting Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 368 (1996). This distinction has long been recognized in criminal law. If a patient dies after receiving palliative care, an attending physician is not liable for murder for he or she did not intend death. When a doctor accedes to a patient's request to provide the means of committing suicide, however, death is always the intention.

   Assisted suicide and palliative care also have radically different consequences. Assisted suicide by definition is always deadly when it succeeds. Palliative care, however, does not kill people. On this point, the District Court was fundamentally mistaken, asserting that the administration of...