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WYDEN TESTIFIES
IN SUPPORT OF
OREGON’S DEATH WITH DIGNITY ACT
AT JUDICIARY COMMITTEE HEARING
May 25, 2006
Washington, DC – U.S. Senator
Ron Wyden (D-Ore.) today testified before the U.S. Senate Committee
on the Judiciary’s Subcommittee on the Constitution, Civil
Rights and Property Rights in support of Oregon’s Death
with Dignity Act.
Senator Wyden’s prepared testimony
follows:
Testimony of U.S. Senator Ron Wyden
Before the Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Property Rights
May 25, 2006
Mr. Chairman, when Oregonians first
adopted the Death With Dignity Act and then defended it on a second
ballot initiative, they sent their government a clear message.
When the American people resisted government interference in the
tragic case of Terri Schiavo, they sent their government a clear
message. That message is that death is an intensely personal and
private moment, and in those moments, the government ought to
leave well enough alone. The government ought not to attempt to
override or preempt the individual’s and the family’s
values, religious beliefs, or wishes.
I have testified before, and it
bears repeating: I opposed physician aide in dying both as an
Oregon voter and as a senator. As the former Director of the Oregon
Gray Panthers I witnessed first hand how many poor and vulnerable
individuals receive inadequate health care. I worried primarily
about the adequacy of the Oregon ballot measures’ safeguards
to protect the poor elderly, and as a result, I voted against
the Oregon ballot measure – not once, but twice as a private
citizen.
Despite my personal objections, I firmly believe that my election
certificate does not give me the authority or the right to substitute
my personal and religious beliefs for judgments made twice by
the people of Oregon. I will continue to strongly oppose any legislative
or administrative effort to overturn or nullify the will of Oregon’s
voters on this matter.
Had Oregon acted hastily or without
thorough examination and debate, I might not be in a position
defend the Oregon law. No one can accuse Oregonians of acting
precipitously in approving the measure: the voters of Oregon did
so only after two lengthy and exhaustive debates that dominated
water cooler and dinner table conversation for the better part
of two years.
The issue of physician aid in dying
is settled as far as my state of Oregon is concerned. My state
has endured two legal ballot initiatives, court challenges to
stop the implementation of the law, attempts in Congress to overturn
the law, an attempt to overturn the law through administrative
action by the Federal government, and, most recently, a challenge
that went to the U.S. Supreme Court. Each time, the will of a
majority of Oregonians prevailed.
During the eight years the law has
been in effect, its opponents have combed through the law looking
for possible pitfalls to exploit. However, the law still stands.
During the eight years the law has
been in effect, its opponents have warned there would be abuses
and a stampede to Oregon. The law has not been abused. In fact,
over eight years, an average of about 30 Oregonians a year have
used lethal prescriptions. This, of course, is a tiny fraction
of Oregonians who faced terminal illness during that time.
While I do not know how I would
vote if the issue were to appear on the Oregon ballot once more,
I believe it is time for me to acknowledge that my fears concerning
the poor elderly were thankfully never realized, and the safeguards
appear to have worked quite well in preventing potential abuses.
What is often not discussed by opponents
of the Oregon law is the Oregon Death With Dignity Act has brought
about many improvements in end of life care in Oregon. Pain management
has improved. My state remains the only state to discipline a
physician for the under-treatment of pain. However, perhaps the
most important side effect of the law is that families, health
professionals and patients know they can, and should have conversations
about how they want to die and what their wishes are concerning
treatment.
In 1997, the U.S. Supreme Court
decided two important cases that should inform this discussion.
The Court in Washington v. Glucksberg and Vacco v. Quill rejected
any constitutional right of terminally ill patients to physician
aid in dying, but, equally important, the Court in those decisions
left the states free to permit or prohibit assistance in dying.
Indeed, the high Court encouraged states to proceed with their
various initiatives in this area. Oregon has done just that.
Historically and constitutionally,
states have always possessed the clear authority to determine
acceptable medical practice within their borders. States are responsible
for regulating medical, pharmacy and nursing practice. Even the
preamble to Medicare (42 USC 1395) states that “Nothing
in this title shall be construed to authorize any Federal officer
or employee to exercise any supervision or control over the practice
of medicine or the manner in which medical services are provided...”
The scientific health literature
is full of studies documenting how medical practice differs from
region to region, state to state and sometimes from medical institution
to medical institution. End of life care should be no different.
While other states have considered
physician aid in dying since Oregon passed and implemented the
Death With Dignity Act, they have not adopted it. That is their
choice. Yet, no one challenged their decisions in court. Neither
the Congress nor the Administration attempted to overturn their
decisions. Oregon’s decision, reached through legal means,
should be respected as well. Fair-weather friends of States’
rights should be reminded that States’ rights does not mean
just when you think the state is right.
Mr. Chairman, I truly believe there
is real common ground and that the nation would benefit if we
were to focus our efforts there. All of us would like to reduce
the desire and demand for physician aid in dying. In order to
do that, pain management needs a huge boost, not another set back.
Previous attempts to negate Oregon’s
law have damaged pain management in every corner of the United
States. Even the New England Journal of Medicine editorialized
against that attempt out of concern for the impact on pain management
nationwide saying: “many doctors are concerned about the
scrutiny they invite when they prescribe or administer controlled
substance sand they are hypersensitive to drug seeking behavior
in patients. Patients as well as doctors often have exaggerated
fears of addiction and the side effects of narcotics. Congress
would make this bad situation worse.”
Pain management is in a sorry state
in this country. Senator Smith and I introduced the Conquering
Pain Act to help provide families, patients and health professionals
with assistance so that no patient would be left in excruciating
pain waiting for the doctor’s office to open up.
The Medicare hospice benefit, created
in 1987, has not been revised significantly since then. I have
legislation, the Medicare Hospice Demonstration Act, to test new
ways of bringing hospice benefits to the patient. For example,
Medicare currently requires terminally ill patients to choose
between “curative” care and hospice. In plain English,
that means you can’t get hospice unless you give up hope.
I contend that people do not get into hospice soon enough to get
its full benefits if they’re forced to make such a choice.
My idea, which Aetna is currently testing, would set aside this
“either or” choice, allowing hospice to begin while
the patient continues with curative care.
The nation also has a shortage of
providers – physicians and nurses – trained in palliative
care. Legislation I authored, “The Palliative Care Training
Act,” provides funding to assure there is a medical faculty
trained in palliative care for all ages.
It is a sad fact that not everyone
can be cured. As the number of ways to prolong life multiplies,
end of life care issues will be more controversial, more difficult
and more painful. The aging of our population will bring more
families face-to-face with these issues, as well. I contend that
the more that is done to improve end of life care and to help
support patient and family decisions, the less people will turn
to physician aid in dying.
The country’s legal system
should not make those decisions more difficult, or more complicated.
For the citizens of Oregon, the
Death With Dignity Act has brought about improvement in many areas
and encouraged conversations that many would never have had otherwise.
For many, it has brought a small measure of peace of mind, knowing
that they can remain in control of their lives if they choose
to do so.
In Oregon, the end of life process
has been decriminalized. And although I could not prove it, believe
in Oregon we have fewer physician aid in dying cases than in other
states where that kind of action is prohibited.
Mr. Chairman, let me close by saying
that I know these are deeply personal issues for all Americans.
My state has chosen a unique path. But rather than pursue a bitter
and divisive debate over physician aid in dying, I would offer
that we work together to make the end of life time a better one
for all Americans.
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