January 21, 2006
As the baby boomers age, more and more Americans will either
be enduring chronic pain or taking care of someone in pain.
The Republican Party has been reaching out to them with a two-step
plan:
1. Do not give patients medicine to ease their pain.
2. If they are in great pain and near death, do not let themput
an end to their misery.
The Republicans have been so determined to become the PainParty
that they've brushed aside their traditional belief in states'
rights. The Bush administration wants lawyers inWashington and
federal prosecutors with no medical training to tell doctors
how to treat patients.
As attorney general, John Ashcroft decided that Oregon's lawallowing
physician-assisted suicide violated the federal Controlled Substances
Act because he didn't consider thisuse of drugs to be a "legitimate
medical purpose." Karen Tandy, the head of the Drug Enforcement
Administration, hasbeen using this same legal theory to decree
how doctors should medicate patients with pain, and those who
disagreewith her medical judgment can be sent to prison.
You know Republicans have lost their bearings when they needa
lesson in states' rights from Janet Reno, who considered the
Oregon law when she was attorney general. For thefederal government
to decide what constituted legitimate medicine, she wrote, would
wrongly "displace the states asthe primary regulators of
the medical profession."
The Supreme Court agreed with her this week in upholding theOregon
law. In the majority opinion, Justice Anthony Kennedysaid the
federal drug law did not empower the attorneygeneral "to
define general standards of medical practice." It merely
"bars doctors from using their prescription-writing powers
as a means to engage in illicit drug dealing and trafficking
as conventionally understood."
That's news to the D.E.A. and the federal prosecutors, whohave
gone way beyond any "conventionally understood" idea
of drug trafficking. They've been prosecuting doctors forprescribing
painkillers like OxyContin, even where there's no evidence of
any of the drugs being resold on the streets.It doesn't matter
that the doctor genuinely believed that the patient needed the
drugs and was not abusing them. Itdoesn't matter that the patient
was in pain.
No, doctors are now going to prison merely for prescribingmore
pain pills than the D.E.A. and prosecutors deem a "legitimate
medical purpose." These drug warriors are nottroubled by
the enormous range in the level of pain medication that different
patients need. They don't even seem to worry much about the
potency of the pills, just the number. They want enough pills
of any dosage
to make a good photo at a press conference. In some cases,doctors
have been too careless or gullible, but those are offenses to
be disciplined by state medical authorities, not criminal courts.
Tandy claims that only a few corrupt doctors have anything to
fear from the D.E.A. She responded to a column of mine last
year by saying that her agency had investigated only 0.1 percent
of the 600,000 doctors in the U.S. But she was far too modest.
Most doctors, after all, write few if any prescriptions for
opioid painkillers.
The doctors who matter are the small number of specialists in
pain treatment who prescribe opioids. Ronald Libby, a professor
of political science at the University of North Florida, estimates
that 17 percent of those doctors were investigated during one
year by the D.E.A., and an even greater number of others were
investigated by local and state authorities, typically in concert
with the drug agency. That means a pain specialist might have
a one-in-three chance of being investigated for prescribing
opioids.
Faced with those odds, doctors are understandably afraid. As
noted in The New England Journal of Medicine this month, the
D.E.A. has made doctors reluctant to give opioids to desperately
ill patients, even when these drugs are the most effective pain
treatment. The article warned that a victory for the Bush administration
in the Oregon case, besides affecting terminally ill patients
in Oregon, could cause doctors across the country to "abandon
patients and their families in their moment of greatest need."
The Supreme Court's decision is a victory for patients and their
doctors - including, I hope, some of the ones in prison for
violating the federal legal theory that has now been rejected
by the court. The doctors should go free, and Republicans in
the White House and Congress should restrain the drug warriors
who locked them up. When this year's budget is drawn up, it's
the D.E.A.'s turn to feel pain
