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of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto
Volume 61, No. 5 May 2005
WHY TERRI SCHIAVO HAD TO DIE
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
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
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
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.
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
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
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
"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
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
"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
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
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
Springtime in the 109th Congress
"That to secure these Rights, Governments are instituted
among Men, deriving their just Powers from the Consent of the
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
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
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
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
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
USA PATRIOT Act
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 (
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).