This week, the President’s Commission on Combating Drug Addiction and the Opioid Crisis issued a report urging President Trump to “declare a national emergency” in response to the “scourge” of the nation’s opioid addiction crisis. The report makes for disturbing reading. Twenty-one million citizens are afflicted with a substance abuse disorder (SUD), yet only 10 percent receive any specialty treatment for their addictions each year—a failure that “is contributing greatly to the increase in deaths from overdose.” About 40 percent of those with an SUD also have a “mental health problem, but less than half of these people receive treatment for either issue.” How high is the death toll? Approximately 142 Americans die every day from opioid overdoses; as the report put it, that’s “a death toll equal to September 11 every three weeks.”
The Commission issued a series of constructive — if expensive — recommendations for addressing the opioid crisis. These included increasing rehabilitation center treatment capacity, eliminating federal funding barriers to treating the mentally ill in in-patient facilities under Medicaid, and requiring physicians who prescribe opioids under the Controlled Substances Act to receive continuing medical education in pain treatment and the risks of developing an SUD.
All well and good. I couldn’t help but notice, however, that one important piece of the opioid problem was omitted. Just as suicide prevention campaigns too often fail to grapple with assisted suicide advocacy as part of our growing suicide problem, the Commission’s report fails to consider the mixed message doctors send when they make opioids available to patients for use in committing suicide: “Don’t abuse opioids, because they can kill you—unless you have a terminal illness and want them to kill you, in which case your overdose will be considered ‘death with dignity.’”
So, I recommend one further recommendation, to be added to the Commission’s list: Amend the Controlled Substances Act to state explicitly that prescribing opioids for the purpose of causing death is not a “legitimate medical use” of these drugs under federal law. Such an approach is consistent with federal government’s primary role in regulating the proper medical use of opioids — which, after all, were developed to ease pain or aid sleep, not to kill. Indeed, prescribing these drugs for suicide is an FDA-unapproved “off label” use, for which no safety testing was performed or regulatory sanction obtained. (A study from the Netherlands found that using opioids in assisted suicide and lethal injections in euthanasia can cause terrible side effects, such as regurgitation, seizures, and extended coma. The official doctor-assisted suicide statistics published by the State of Oregon have also reported such cases.)
My idea isn’t a novel one. In 1999, the House of Representatives passed the Pain Relief Promotion Act, which would have outlawed the use of opioids in prescribed suicide but encouraged their proper use in treating pain. Unfortunately, that legislation was killed by a Senate filibuster. Later, Attorney General John Ashcroft published in the Federal Registeran administrative interpretation establishing similar guidelines. But the Supreme Court, in a narrow ruling, eventually overturned this interpretation for violating proper administrative procedures. The majority did, however, explicitly agree that the federal government possesses the inherent power to prevent narcotics from being prescribed for assisted suicide.
Some might object that enacting such a law would violate important principles of federalism. To the contrary, it would be a proper exercise of the federal government’s prerogatives.
- It would not create a federal crime of assisted suicide: This law would explicitly define the proper and improper medical uses of these powerful drugs under federal law, not designate assisted suicide as a crime.
- It would not interfere with states’ rights: Though critics of this proposal claim that it would overturn state laws that allow assisted suicide, those laws would in fact remain in place.
- It would be consistent with the federal role in drug policy: Under the Controlled Substances Act, the federal government has unquestioned authority to determine what is and is not a proper medical use of the specified drugs. This is so even in states that take a different legal approach. Moreover, such a law would return national uniformity to the regulation of opioids.
- It would enhance the proper delivery of pain control: Under a new Pain Relief Promotion Act, for the first time, pain control would be identified in federal law as an explicitly proper use of controlled substances — even if the pain-controlling drugs have the unintended side effect of causing death. That is a much-needed legal reform, because at the same time that some doctors over-prescribe opioids, others fail to treat pain aggressively since they fear the government’s second-guessing.
The opioid crisis is tragically real and requires a concerted national commitment to remediation policies such as those recommended by the President’s Commission. In such a crisis, we cannot warn people not to abuse these powerful drugs, while at the same time allowing doctors intentionally to prescribe overdoses. Combating opioid abuse must apply to all abuses—including the use of these pain-killing drugs in suicide.