A Death by Any Other Name: The Federal Government's Inconsistent Treatment of Drugs Used in Lethal Injections and Physician-Assisted Suicide
Miller, Colin, Journal of Law and Health
I. INTRODUCTION II. HECKLER V. CHANEY AND THE FDA's RELUCTANCE TO ACT III. WASHINGTON V. GLUCKSBERG AND OREGON'S DEATH WITH DIGNITY ACT IV. THE EMERGENCE OF LETHAL INJECTION AS THE SOLE METHOD OF EXECUTION A. Lethal Injection's Rise to Exclusivity B. Lethal Injection's Effect on All Prisoners C. Botched Executions V. THE PRACTICE OF MEDICINE EXCEPTION A. Medical Association Views B. The Hippocratic Oath C. Physicians Play a More Active Role in Causing Death in Lethal Injection than in PAS D. Lethal Injection Does Not Fit the Standard Model of the Practice of Medicine VI. DULY AUTHORIZED STATE PRACTICE VII. CONCLUSION
In 1985, in Heckler v. Chaney, the Supreme Court rejected a challenge by death row inmates to the Food and Drug Administration's (FDA) failure to initiate enforcement actions against drugs used in capital punishment. Rehnquist's majority opinion cursorily held that agency decisions not to institute such proceedings are unreviewable, and the Court has persistently upheld this principle in Chaney's progeny. As important as this principle may be, even more important is why the FDA chose not to review the safety and efficacy of drugs used in capital punishment.
First, the FDA argued that lethal injection was a distinctly minority practice affecting few prisoners and that scant empirical evidence existed that the drugs used in the procedure were dangerous. Second, it claimed that lethal injection constitutes the practice of medicine, and the FDA has a policy of non-interference with physician's professional treatment decisions. Finally, the FDA asserted that it has a policy of not initiating enforcement actions against state laws that are duly authorized and further legitimate state interests.
In 1997, the Supreme Court gave such authorization to states to experiment with physician-assisted suicide (PAS). Although the Court found no fight to PAS, it explicitly delegated to states the power to legalize and regulate its practice. Based on this decision, Oregon enacted its Death with Dignity Act (DWDA) that same year, legalizing PAS for terminally ill patients. Later, Attorney General John Ashcroft--usually a federalist--challenged the DWDA under the federal Controlled Substance Act. A primary contention of his challenge was that PAS is subject to federal regulation because it does not constitute the practice of medicine.
Concurrently, lethal injection has become the primary, almost the sole, method of execution in this country. Despite frequently clandestine execution procedures, many observers have filed reports of "botched" executions based on improper dosages and combinations of drugs. Doctors who treat other prisoners frequently participate directly in these executions, and non-medical personnel often improperly inject the drugs, causing painful and prolonged deaths.
While the FDA is under no legal obligation to regulate the drugs used in executions, these recent developments certainly create a moral imperative requiring review. This paper will argue that the federal government cannot consistently refrain from regulating lethal injection drugs while arguing for prosecution of those prescribing drugs to be used by patients in assisted suicide.
Part II will look at the opinions in Chaney and the factors behind the FDA's decision not to regulate the drugs used in executions. Part III will look at Oregon's Death with Dignity Act and its authorization by the Supreme Court. Parts IV-VI will analyze how the justifications given by the FDA in the early 1980s, for not regulating the drugs used in executions, are no longer valid in 2003. Part IV will discuss how lethal injection now constitutes a serious public health issue. In the early 1980s, only two hundred prisoners were subject to lethal injection, and scant evidence existed of its dangerousness. …