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Omnia pro aegroto

Volume 61, No. 5 May 2005


Theresa Marie (Terri) Schindler Schiavo, dehydrated to death by order of a Florida judge, was different from thousands of other patients only in that her parents were fighting for her life, and her cause attracted the support of advocacy groups. Government force was required to keep family and friends from offering a morsel of food or sip of water.

The case took on the trappings of the "final decision" in the Roman Colosseum in the days of the gladiators, writes AAPS Past President Lawrence Huntoon, M.D., Ph.D. When one of the gladiators was disarmed, he knelt in front of the victor, who looked to the crowd and the royal elite for their decision: thumbs up or thumbs down. The American public, according to television polls that described her condition inaccurately, was 80% in favor of killing Terri. The judicial elite, playing to the fervor of the crowd, showed thumbs down. Some in the government- reserved seats took token actions to salve their consciences and to save face with their pro-life constituents, but avoided effective intervention lest they incur the ire of left-leaning moderates. Pro-euthanasia physicians assured the public she would feel no pain while being run through with the sword, concludes Dr. Huntoon.

There's no glory in vanquishing a woman who couldn't defend herself. But her defeat was critically important in ushering in what the Medical Society of New Jersey calls the "post-Schiavo era" (MSNJ e-news 4/1/05).

There are many side issues in the Schiavo case: allegations of spousal abuse; a corrupt guardianship system that facilitates the looting of its wards' assets; the conflict among experts about the diagnosis of persistent vegetative state versus minimally conscious state and the potential for rehabilitation; the acceptability of hearsay evidence about what the patient may have said years ago about what she would have wanted. (See AAPS News, December 2003, and the Terri Schiavo archive at www.aapsonline.org.)

In essence, however, the case is a landmark on the way from a government-defined "right to health care" to a government- mandated duty to die, cloaked in deceptive rhetoric about "choice," "private family matters," and the "rule of law."

The right of an incompetent patient to refuse medical treatment through another party ("substituted judgment") was established only in 1976, in the case of Karen Ann Quinlan.

Quinlan lived for 9 years after her ventilator was disconnected. Bioethicists needed another a solution for disabled people. In 1983, Daniel Callahan noted that "a denial of nutrition may...become the only effective way to make certain that a large number of biologically tenacious people actually die" (Wesley Smith, Culture of Death, 2000).

A watershed event was the reclassification of a feeding tube, which to thousands of disabled patients is just another piece of adaptive equipment, as a medical device, both by courts and by AMA policy. But even patients without tubes may be receiving "artificially supplied" nutrition by spoon.

Before her gastrostomy tube was inserted, Nancy Beth Cruzan could eat mashed potatoes, bananas, eggs, and sausage, and drink juice. Neurologist and "right-to-die" activist Ronald Cranford the same doctor chosen by Michael Schiavo to examine his wife testified in the Cruzan case that spoonfeeding in such cases would be "morally repugnant" and "totally inconsistent" with the desired outcome (death).

In articles preprinted by internet while the Schiavo case was pending, George Annas, J.D., M.P.H., wrote: "Most Americans will agree with a resolution that was overwhelmingly adopted by the California Medical Association on the same day that Congress passed the Schiavo law: `Resolved: that the [CMA] expresses its outrage at Congress' interference with these medical decisions'" (N Engl J Med 4/21/05).

In the same issue, Timothy Quill, M.D., notorious for his published confession of assisting a suicide, writes that: "enforcing life-prolonging treatment against what is agreed to be the patient's will is both unethical and illegal."

Terri Schiavo's own trust fund money awarded in malpractice litigation to pay for her rehabilitation has paid Michael's pro- euthanasia attorney George Felos some $400,000. The ACLU also helped pay Felos. Already, the Hemlock Society, renamed End-of- Life Choices, has started a Florida advertising campaign using Terri's plight to expand membership. Its CEO, David Brand, fears that Florida residents will stop using living wills or advance directives.

The euthanasia movement has connections to the hospice industry, including the facility where Terri died, writes Ron Panzer of the Hospice Patients Alliance. "Access" to nonterminal patients like Terri to receive their "services" means more revenue to hospices willing to pervert their original mission, while saving billions for Medicare and Medicaid. Potential future savings are even greater if patients die before scientific breakthroughs occur that could have benefited them.

Terri did not need to burden Medicaid with her hospice bill, as her parents were willing to take her home and care for her. But what about patients not so fortunate? Would allowing some to live while others are killed lead to "disparate outcomes"? Can federally funded programs allow the "rich" to escape rationing by spending their own money?

Medical decisions are no longer private, owing to tax funding and massive government regulation. Death by judicial edict is well-established; checks and balances appear impotent.

Terri Schiavo had to die partly because vast sums of money are at stake. More importantly, she is a test case for euthanasia and physician-assisted suicide worldwide, writes Dianne Irving. Influential bioethicists will not idly allow 30 years of litigation to be overturned.

The AMA on Terri Schiavo

The AMA helped establish the precedent that brought about Terri's death, as by actively supporting the dehydration of Nancy Beth Cruzan. As of April 12, the only reference to Terri Schiavo at www.ama-assn.org is a statement by Board chairman J. James Rohack, offering condolences to Terri's family and hoping that "no other family experiences similar heartbreak." Terri "gained immortality" by "spurring a national dialogue on end-of-life care planning." The AMA hopes that "the lessons learned from this tragedy encourage everyone to write a living will...."


The Next Step

According to Dr. Timothy Quill, terminal sedation (TS) and voluntarily stopping eating and drinking (VSED) are "ethically and clinically more complex and closer to physician-assisted suicide (PAS) and voluntary active euthanasia (VAE) than is ordinarily acknowledged" (JAMA 1997;278:2099-2104). Quill argues for a position of "studied neutrality" by medical organizations on the "contentious issue" of PAS (Ann Intern Med 2003;138:208-211). He also suggests that "physicians who choose not to participate [in TS, PAS, and VAE] because of personal moral considerations should at a minimum discuss all available alternatives in the spirit of informed consent and respect for patient autonomy" (JAMA, op cit.)

To physicians who find it morally unacceptable to present PAS and VAE as viable alternatives, Quill responds that although he "respects" religious objections, they should not be allowed to "determine public policy in a pluralistic society such as our own." To the criticism that proposed safeguards to protect vulnerable patients from error, abuse, or coercion lay out conditions that Quill and coauthors admit cannot be met, Quill does not attempt a response (JAMA 1998;279:1065-1067).


God's Death Angel

Attorney George Felos, member of the board of the hospice where Terri Schiavo died, described her death as "beautiful" and "peaceful." In his book Litigation as Spiritual Practice, he claims the mystical ability to "soul-speak" with brain-injured patients, who ask him to liberate them from life into death. God has also endowed him with other special powers, he claims, such as the ability to keep an airplane aloft by sheer will. A founding member of the National Legal Advisors Committee on Choice in Dying, he is a frequent pro-euthanasia spokesman on popular television and radio.


Debra Monde, D.O., RIP

Long-time AAPS member and tireless fighter for liberty Debra Monde, D.O., a former congressional candidate, died April 3, at age 41, from multiple myeloma. Dr. Monde is survived by her husband George Schwappach and four sons, who request that memorial donations be given to AAPS.


AAPS Calendar

May 21, 2005. Board of Directors meeting, Atlanta, GA.
Sept. 21-24, 2005. 62nd annual meeting, Arlington, VA.
Sept. 13-16, 2006. 63rd annual meeting, Phoenix, AZ.


On Life in the Persistent Vegetative State

"Our daughter, Claire, has had a feeding tube for 10 years," writes Marianne Jennings. "Our Claire has a perfectly flat EEG. From what I can determine, Terri Schiavo is higher functioning than our Claire...." Yet, she responds and has fought tenaciously for her life. The callous removal of Terri's feeding tube is "a giant leap backwards as mankind denies its spirituality and harms the helpless. I worry about the precedent for our Claire and my mom, but I fear for us" (Jewish World Review 3/24/05).


Doctors Switch Sides

A decade ago, about 80% of conflicts involved loved ones pressing hospitals and doctors to let loved ones die, according to Dr. Lachlan Forrow, director of ethics programs at Beth Israel Deaconess Medical Center in Boston (NY Times 2/37/05).

Was the aggressive but ultimately futile care a form of "end-of-life looting" to feed welfare-state resources to the medical system (Mises Daily Article 4/6/05)?

But today, Dr. Forrow observes, about 80% of cases involve families pushing for continued life support.

In at least three states, Texas, Virginia, and California, doctors can by law refuse treatment against the wishes of family members or even the patient's own advance directive.

The Texas law, signed by Gov. George Bush in 1999, allows doctors to remove life-sustaining treatment over family members' objections if an ethics committee agrees and the hospital gives the family 10 days to try to find another facility to accept the patient in transfer.

The California law is much vaguer, providing that physicians cannot be required to provide care "contrary to generally accepted health care standards."


AAPS Demands Full Autopsy

Initially, the Florida court had decided that Terri Schiavo's body was to be cremated immediately upon death. After AAPS pointed out the need for an autopsy, it was announced that Michael Schiavo would permit a limited autopsy to determine the state of the brain. AAPS members then contacted the medical examiner about the need for a full forensic autopsy to investigate allegations of spousal abuse that may have caused Terri's initial injury. A full autopsy was performed. Any results will be closely scrutinized, and even if they are never released, questions about abuse cannot now be silenced.


Sixty-Two Percent of Federal Budget Is Theft

Of President Bush's proposed $2.479 trillion for fiscal 2006, Craig Cantoni calculates that at least $2.537 trillion, or $13,392 per household, is theft, defined as "taking of money from some citizens for the direct benefit of other citizens instead of for the benefit of everyone equally or as equally as practical." For details, see www.haalt.org/node/view/24.

Does a Living Will Matter?

As columnist Bonnie Henry noted, other patients in the hospice were dying the same way that Terri was: "They signed a piece of paper. Terri didn't. But...it truly doesn't matter."

Nonconsented death can happen in other states also. The Arizona Supreme Court, in 1987, construed a search-and-seizure provision, which had been incorrectly captioned as a "right to privacy" by a clerk in 1939, to provide a right to refuse medical treatment (Rasmussen v. Fleming). Mildred Rasmussen's only treatment consisted of food and water through a nasogastric tube. She was able to swallow food after the tube was removed. She did not try to refuse medical care, but the Pima County Fiduciary sought to be appointed as her guardian for the sole purpose of ending her life. She died before the court of appeals could consider her case, which rendered the controversy moot.

"None of these factors prevented the Arizona Supreme Court from creating a `right to die' out of thin air" (Center for Arizona Policy, March 23, 2005).


Sample Living Wills

For those who would like to be "killed like Terri," as James Taranto put it (Wall St J 4/1/05), only without the legal and political turmoil, Dear Abby has a link for you: www.compassionandchoices.org, which announces that Compassion in Dying and End-of-Life Choices have merged. These groups support government-funded assisted suicide.

For suggestions on how to protect yourself against euthanasia, and for information on state law, see www.nrlc.org/euthanasia/willtolive/StatesList.html.

AAPS General Counsel Andrew Schlafly suggests consideration of provisions such as these:

1. I do not consent to withholding of food or water for the purpose of ending my life, or to the appointment of any guardian who interferes with providing such sustenance.

2. For the purposes of legal proceedings contesting my care, I withhold consent to be examined by any physician who does not subscribe to the original Oath of Hippocrates.

3. I disapprove of guardianship by an unfaithful spouse if contested in court by my parent or child.

4. If a judge orders the withholding of food, water, or medical care, and my life ends in that manner, I do not consent to burial or cremation until a full autopsy is performed.


AAPS Supported De-Novo Review of Schiavo

In an amicus brief filed with the U.S. Supreme Court, AAPS argued that Terri Schiavo's due process rights were violated by the assumption that she was in a persistent vegetative state, as required by Florida statute, "without allowing her parents to arrange for a current, objective and thorough medical examination." Moreover, "[t]he order to withhold food and water improperly substituted the views of the court for the presumptive religious views of the patient." Courts erred in finding a lack of state action in the order.

The Supreme Court declined to review the case.


The Cruzan Precedent

The road to the deathwatch in Pinellas Park, Florida, began in 1990, argues Matthew J. Franck, Chairman of Political Science at Radford University (National Review 3/30/05).

The Cruzan opinion authored by Chief Justice William Rehnquist held that: "a State may properly decline to make judgments about the `quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual [emphasis added]."

The Court explicitly assumed that a competent person had a right to refuse lifesaving nutrition and hydra- tion although it is unlikely that a competent person who was not already dying would choose such a protracted death, or stay the course.

"Only the incompetent are fit for such a death," writes Franck, "but Rehnquist's preposterously invented `right' was the Court's way of blessing a practice called `substituted judgment'": a fateful step in negating the right to life.

In his concurring opinion, Justice Antonin Scalia wrote that it was within the power of the State to prevent suicide or assisted suicide, even by the "passive" step of refusing necessary sustenance, even when it was demonstrated by clear and convincing evidence that the person no longer wished certain measures to sustain life. He wrote that "[s]tarving oneself to death is no different from putting a gun to one's temple as far as the common law definition of suicide is concerned." Moreover, he cited another precedent holding that assisted suicide "is declared by the law to be murder irrespective of the wishes or condition of the party."

The intelligent line, Scalia believed, was not between action and inaction but between abstainng from "ordinary" care versus "heroic" or "excessive" measures.

"Scalia's opinion," writes Franck, "was the requiem for the unqualified protection of innocent life in American law." Recently we have only "variations on a pro-death policy."


Backlash Against Activist Judges

The Schiavo case is the latest in a number of decisions demonstrating that activist judges are waging war on religion and forcing "an atmosphere of atheism" on us, as described by Rev. Rick Scarborough, who heads a new coalition of evangelicals, Catholics, and Jews called the Judeo-Christian Council for Constitutional Restoration. Coalition members have, for example, attacked Supreme Court Justice Anthony Kennedy for upholding "Marxist, Leninist, satanic principles drawn from foreign law." One coalition goal is the enactment of legislation to restrict court jurisdiction in certain cases (Christian Science Monitor 4/13/05).


"Liberals" Switch Sides

Although deploring the attempt of Congress to require a de- novo review of rulings by Judge Greer in the Schiavo case, self- styled liberals cheered when Attorney General Janet Reno overrode Judge Rosa Rodriguez of Florida Family Court and also the Eleventh Circuit to seize Elian Gonzalez on Easter five years ago, observes John Fund (Wall St J 3/28/05).


No Choice for Illinois Pharmacists

Despite the Illinois's conscience clause, the strongest in the nation, Gov. Rod Blagojevich has issued an emergency ruling ordering pharmacists to dispense contraceptive pills, including the "morning-after" pill, despite their moral objections. He filed a charge of "unprofessional conduct" against Osco, and threatened to fine and close the store.


Not the First Time. The Schiavo case is not the first one in which a judge ordered food and water to be taken away from citizens. In the case involving William Penn (AAPS News, Feb and June 2004), the judge had four jurors who refused to find him guilty jailed for 9 weeks, often without food or water, soaked in their own waste and threatened with severe fines. Edward Bushell told the judge, "My liberty is not for sale." Because of these jurors, we have the freedom to practice our religion in the United States.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


A Conflict of Interest. Whether 16-month-old Aiden Stein remains alive could determine whether his father is charged with murder. Police suspect that the father shook his baby; the parents, who had to relinquish custody, deny abuse. The court transferred custody from a court-appointed guardian, who had sought to withdraw life support, to the child's grandmother. Authorities, however, suspect that she might not like to see her son charged (Dayton Daily News 3/26/05; AAPS News of the Day 3/15/05). Imagine that! Parents and grandparents have a conflict of interest in wanting their children to live!
Kenneth Christman, M.D., Dayton, OH


It's Aimed at Us, the Baby Boomers. Terri Schiavo is a trial run for the future imploding of Social Security and Medicare. The coming rationing of services was the reason I went to court in 1992 against the prohibition of the private contract. Though it is difficult financially for many to bow out of the system, it may be necessary to do so in the near future to maintain our honor and our values. The shades of the Hegelian Rational Utility are upon us, just as I predicted in my speeches years ago. The rush to judgment despite so many ambiguities was fueled by euthanasia advocates' thirst for a precedent.

During the golden age of medicine, I don't believe any physician would have removed a feeding tube from an individual who could not eat or drink who was not already dead. We must stand up for our constitutionally guaranteed rights to life and liberty, and value the life in all individuals, perfect or imperfect, able or disabled. Are we following the same pathway that started in Germany with the destruction of the disabled and proceeded to any group that was not liked?
Lois J. Copeland, M.D., Hillsdale, NJ


Would a "Living Will" Have Prevented the Tragedy? A "living will" has nothing to do with living. It is your death warrant. Originally developed in 1967 by Luis Kutner for the Euthanasia Society of America, it makes you a clear and easy target to be euthanized. The most cost-effective tool for hospitals, Medicare, and Medicaid, it has been deceptively packaged and promoted as a patient's right as in the Patient Self-Determination Act, which originated in the Senate Finance Committee. Obviously, the living will is about saving money.
Mary Helmueller, R.N., Minneapolis/St. Paul, MN


Legislative History. When Michael Schiavo and his attorney George Felos tried to get Terri's feeding tube pulled in 1998, Judge George Greer in essence said that the law would have to change. By 1999, Felos and the euthanasia lobby, including the American Civil Liberties Union (ACLU), got the desired result unless the will of Floridians to turn feeding tubes into life- support machines was mystically revealed to legislators.

I honor an individual knowingly and volitionally refusing medical care and heroic life support. I object to the state deciding by category who should stay and who should go, and the court flouting truth and constitutional rights to achieve a state purpose.
Madeleine Pelner Cosman, Ph.D., Esq., Escondido, CA


It's Not about Patient Choice. The assertion that what Terri Schiavo wanted was all that mattered was pure rhetorical fluff. No one could know. So which type of error is worse? Killing someone who does not want to die, or saving someone who does want to die? If the latter is worse, we could save a lot of money by canceling anti-suicide programs.

It appears that the courts ordering Mrs. Schiavo's death have made an implicit finding that personhood depends on the ability to communicate with people who spend an hour or less in your room. This hypothesis also explains advocacy of a legalized right to kill infants, including the documented practice of after-birth abortions in which a healthy child is put aside and allowed to die of neglect.

Note that without a significant government presence in medicine, no one would be able to demand that other people be forced to spend the product of their labor keeping one's family member alive; one could only ask for charity.
Linda Gorman, Independence Institute


An Incentive to Kill? Congress has seen fit to reduce payments to physicians over the next 7 years so that by 2013 Medicare will pay physicians 59% of their current inadequate fees. Yet payments to HMOs were raised from 95% of "standard" Medicare cost per patient to 125% in 2003.
Stephen R. Katz, M.D., Fairfield, CT


The Basic Question. Most discussions about Medicare, Medicaid, and Social Security fail to address the most important question: is it, and was it, okay to steal from the children?
Robert P. Gervais, M.D., Mesa, AZ

Legislative Alert

Springtime in the 109th Congress

"That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed."
Declaration of Independence, 1776

Congressional proposals this year include: (1) the possible creation of an internal travel passport and trinational inter- linked databases as a border control initiative; (2) turning nervous system stimulants contained in over-the-counter products into schedule V drugs; (3) supporting the creation of interstate databases to prevent patients' "shopping" for doctors; and (4) sunsetting the sunsets for the USA PATRIOT Act.

Any of these activities, if successful, will lead to more concentrated political, economic, and social power in the Federal government and the corresponding loss of liberty, income, and actual solutions to real problems.

Border Control and the REAL ID

There is much concern about the massive influx of undocumented individuals into the United States. The borders are definitely an area in which the Federal government has legitimate authority. Protecting our country against enemies both foreign and domestic is a Constitutional obligation. Those who cross the border without the proper documentation are not necessarily our enemies, but they are lawbreakers. Some of them also violate property laws and inflict harm on individuals. Whether one favors open or closed borders (or some point of moderation between the two extremes), it is clear that the Federal government has not lived up to its obligations with regard to border security.

The fact that we now have Citizen Militias such as the Minutemen in Arizona patrolling our borders is a sign of that failure. Although President Bush is calling these Citizen soldiers "vigilantes," they are exercising their Second Amendment rights, which include the right to secure their free state with arms if necessary. Their objective is to protect both their private property and the sovereignty of their country.

Instead of having an honest debate about the border and immigration issue, some in Congress have decided the best thing to do is try to pass a law that "federalizes" State-issued identification cards. This would supposedly make it more difficult for those without the proper identification to obtain a driver's license or other State-issued ID. This in turn is supposed, somehow, both to decrease illegal immigration and to limit the options of "terrorists" in living and moving within the U.S. The REAL ID Act passed the House and will be moving to the Senate any day now.

Liberty issues aside, proponents of the bill have little understanding of how markets operate, or of what actually happened during the days leading up to the assault on the World Trade Center. All of the "911" terrorists would still have been able to get drivers' licenses under this law, as they had entered the country with legitimate papers. Moreover, we know that the market will respond to greater "security" measures by creating secondary markets in identification papers either through ID theft or ID creation. This market will be supported by government mandates to create citizen databases and universal identification numbers and systems. More people will also be pushed underground. The result is an illusion of greater security while we are actually more vulnerable.

The REAL ID Act is another step toward a national identity document that would be required to travel or to carry out routine marketplace transactions.

Title II of the REAL ID Act is what has been referred to the National ID section of the bill. It repeals the Senate-crafted language concerning State drivers' licenses enacted into law in the 2004 intelligence reform package in favor of even more invasive anti-privacy provisions.

The first troubling aspect of the license provisions is the requirement that States link their identity databases and join a proposed interstate compact dubbed the "Driver License Agreement." This would enable states and provinces of Mexico and Canada to join in this database without further input from the Congress. Making Americans' sensitive identity information available to foreign government officials or even American government officials is not prudent. In case of the latter, their access to private information should be limited by court order or at the very least an opt-in system.

Secondly, the negotiated rulemaking for new drivers' license standards from the 2004 bill is repealed. Under REAL ID, the Homeland Security Secretary is given sole power to write the design requirements for State drivers' licenses, with only undefined "consultation" offered by the Secretary of Transportation and the States. This is troubling in particular because of two elements of the design requirements discussed below. It also undermines State autonomy under police powers to decide about licensing of motorists, which was and should be the only reason for creating State IDs in the first place. Even that reason is questionable since the license was originally just a revenue-generating activity for the States.

Without language specifying otherwise, the requirement for a "common machine-readable technology" could include radio frequency identification (RFID) microchips, which broadcast all of the information contained on the license to anyone in range who has proper reading equipment. Alarmingly, the State Department has reportedly adopted an unencrypted RFID standard for redesigned passports, and the Virginia legislature considered RFID for drivers' licenses in a hearing last year.

Additionally, the design requirement for "physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes" is so broad that the Homeland Secretary may read it to include fingerprints, or scans of the iris or retina, or even DNA. Thus, without further input from the Congress or others, the Homeland Secretary could mandate that such sensitive data be in a database system accessible to foreign, Federal, State, and local governments.

The REAL ID Act also imposes extremely costly mandates on State governments. The National Conference of State Legislators calls the mandates "impossible," and estimates compliance costs of an initial $500 to $750 million and ongoing annual costs of $50 to $75 million.

Standardizing everything except the typeface on State drivers' licenses creates a de facto national ID, and requiring such a document at every airport is a de facto internal passport system. In order to travel by plane, train, or bus, citizens would be required to have what amounts to a national travel license. In the name of national security and "immigration control" the country could end up with an internal movement control system, reminiscent of that in the former Soviet Union. This would improve neither border control nor national security.

Combat Methamphetamine Act of 2005

This bill would classify pseudoephedrine as a schedule V drug, so that products containing it would have to be located behind the counter and could only be distributed by a licensed pharmacist or pharmacy technician. It would also require all purchasers to show a photo ID with their date of birth and sign a written log. The rationale is that a very small portion of pseudoephedrine purchased over the counter is used to produce methamphetamine.

The bill also provides $5 million for a Special U.S. Attorneys' Program which provides for cross-designation of local prosecutors as special assistant U.S. attorneys, violating federalism and creating separation-of-power problems. The continuing trend toward federalization of crime and prosecution is turning formerly sovereign States into mere puppets of the Federal government.

National All Schedules Prescription Electronic Reporting Act of 2005 (NASPER)

Introduced in both House and Senate, this is an attempt to control "doctor shopping" by giving States grant money to create scheduled-drug tracking databases. As a condition of obtaining federal funding, States would have to establish programs requiring dispensers of controlled substances to report the "name, address, and telephone number" of any individual who receives a prescription for a wide range of drugs including pain medications and antidepressants.

Prescription drug monitoring programs have been shown to chill prescribing for medical needs; an estimated 50 million Americans currently live with inadequately treated pain. The source of prescription drugs used illegally either for "recreation" or for pain by those who cannot find a legal source is primarily importation or theft, not a doctor's prescription.

NASPER permits and encourages the State monitoring programs to notify State drug enforcement authorities if the information reported to the database suggests an unlawful diversion or misuse of a controlled substance. It further authorizes the State monitoring program to furnish information from the data base to "any local, State, or Federal law enforcement, narcotics control, licensure, disciplinary, or program authority, who certifies" that the requested information is needed for an investigation.

The bill thereby authorizes the use and disclosure of identifiable health information for law-enforcement purposes without the patient's knowledge or consent, without probable cause to believe a crime has been committed, and without obtaining a search warrant. The Fourth Amendment prohibition against unreasonable searches and seizures seems to have been forgotten.


The USA PATRIOT Act will be a primary focus of Congress this year as many of its provisions sunset by year's end. Recall that this Act was never read in its entirety by Congress before it was voted upon and passed in 2001. It was not even a real response to the September 11 attack in that many of its provisions had been on the wish list of the Department of Justice for years. Among the provisions set to expire is Section 215, which gives the FBI access to business records under FISA (including library and medical records) without a clear connection to counterintelligence or terrorism investigations and without identifying either a specific individual or specific records as the target of the search. The Administration and its allies in Congress are supporting indefinite extension of this power.

Founded by former Congressman Bob Barr (R-GA), a new transpartisan coalition, Patriots to Restore Checks and Balances (PRCB) is working to ensure Congressional review and modification of certain PATRIOT Act provisions to protect our Constitutional rights and liberties. Participants include the Association of American Physicians and Surgeons, the American Conservative Union, Free Congress, Americans for Tax Reform, Second Amendment Foundation, and the American Civil Liberties Union. The PRCB inauguration press conference was shown repeatedly on C-SPAN and mentioned throughout the American press ( http://media.vmsnews.com/MR.pl?id=032405-542813-H000205165 ).

Michael D. Ostrolenk is a member of the AAPS government affairs team in Washington, D.C.

Dr. Moffit's column will return next month.

"The makers of the Constitution conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men."

Olmstead v. United States, 48 S. Ct. 564, 572 (1928).