Kathryn L. Tucker, JD

Kathryn L. Tucker, JD, is Executive Director of the End of Life Liberty Project, an advocacy organization dedicated to protecting the rights of the terminally ill. She teaches law, medicine, and ethics at the end of life at leading law schools.
Kathryn L. Tucker, JD

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Cross Movement Learning

Social change movements can often learn from each other. This article explores ideas and lessons the movement to expand end of life liberty (also referred to as “death with dignity”) may offer advocates of access to psychedelic substances.

Why End of Life Advocates Are Excited About Psychedelics

As an advocate, I have engaged in multidimensional advocacy to press for recognition of the rights of terminally ill patients on various frontiers for nearly three decades. I have argued in favor of dying patients having access to as much pain medication as they need to get relief, even if it advances their time of death. The US Supreme Court recognized this right in 1997, including the right to a specific treatment known as “palliative sedation,” which involves physician administration of intravenous medication to eradicate consciousness, so the patient has no awareness of suffering, titrating the medication to maintain the patient in an unconscious state until death arrives. The Court found choice for such pain management to be among the liberties protected by the United States Constitution. In addition, I have engaged advocacy in both the legislative arena and through litigation to establish the right of a dying patient to obtain a prescription for medication to precipitate a peaceful death, a practice known as “aid in dying” (“AID”; sometimes referred to as “death with dignity”). Today, a growing number of states empower dying patients with access to AID, including Oregon, Washington, Montana, Vermont, California, Colorado, Hawaii, and New Jersey.

clinical studies showing the efficacy of psychedelic substances in relieving anxiety in terminally ill patients are of great interest to patient advocates.

These hard-won developments represent progress toward improving end-of-life care and expanding the autonomy of terminally ill patients. However, they primarily address physical suffering; the guidelines for provision of palliative sedation require physical distress. Hence the recent clinical studies showing the efficacy of psychedelic substances in relieving anxiety in terminally ill patients are of great interest to patient advocates. A powerful new tool appears at hand for non-physical suffering experienced by some patients.

In light of the fact that psychedelic substances are not legally accessible under current law, the question becomes how to galvanize changes in law to make these valuable medicines available.[i] The main road to medical access involves rescheduling under the federal Controlled Substances Act;[ii] this effort is underway, with leadership from MAPS and others.

Unwilling to wait for (or count on) rescheduling, various state efforts have begun to emerge around the US to make access to psychedelic substances possible. These measures would alter state law, leaving potential federal criminal exposure a risk.[iii]

Lessons from the Movement for End of Life Liberty: It Can Take Successive Efforts

The movement for end-of-life liberty demonstrates that sometimes it will take several efforts before success (defined as having a measure enacted into law) is achieved. Oregon was the first state to enact a “Death with Dignity” law through the initiative process in 1994.[iv] That success stood on the shoulders of narrowly defeated initiative efforts in 1991 in Washington and 1992 in California. Although they failed, these early campaigns served a critically important function, and advocates learned from the failed efforts. Most significantly, the Oregon effort put forth a measure tailored to meet the concerns with the broader measures that had been advanced in Washington and California.  The text of the law presented to voters in Oregon was considerably narrower than the preceding measures.[v] The early campaigns educated advocates about how to tailor the measure, facilitating the successful effort in Oregon.

In light of the two failed attempts before it, Oregon’s measure was designed to avoid vulnerability to attack by opponents claiming it was not sufficiently narrow and restrictive. Hence, it provides for limited access[vi] and imposes a heavily regulatory scheme for determining who is eligible, the process the patient must go through to get the medication, the process the physician must follow in order to establish the patient’s eligibility and provide a prescription, and extensive requirements including multiple requests for the medication, witnessing of requests, a mandatory waiting period, and reporting of data about patients who obtain the prescription, among others.

The First Enactment May Become a Model

The success in Oregon became the “model”:  other states have enacted very similar measures. Hence, it is important to be aware that a pioneering success may become replicated; this reality encourages careful thought as to what form that first enactment takes.

Oregon Psilocybin Initiative 2020

Oregon is advancing a very broad initiative, the Oregon Psilocybin Initiative 2020.[vii] This fifty-page heavily regulatory measure specifically excludes a medical diagnosis as a necessary criterion for access.[viii]

the “low hanging fruit” in legalization of psychedelics is surely medicinal use.

Choosing not to limit the measure to medicinal use, and crafting a heavily regulatory measure, raises several issues worthy of consideration. First, the “low hanging fruit” in legalization of psychedelics is surely medicinal use. The plight of dying patients with unmanageable anxiety about their impending death is compelling. Their situation resonates with most people.

Law and medicine already allow dying Oregonians access to controlled substances to eradicate consciousness (palliative sedation) and to advance the time of death (AID).  Surely law and medicine ought to allow access to controlled substances to alter and elevate consciousness.

Further, consider this powerful argument: Law and medicine already allow dying Oregonians access to controlled substances to eradicate consciousness (palliative sedation) and to advance the time of death (AID).  Surely law and medicine ought to allow access to controlled substances to alter and elevate consciousness. In doing so, the patient’s interest in eradicating consciousness or advancing time of death may be modified, and how the patient feels about and experiences their dying process may be improved. An authorization for medicinal use, allowing sick patients access to this medicine, appears the easiest first step in changing the law.[ix] Other medicinal uses are also compelling, including treatment of PTSD and depression. Focusing on medicinal use avoids attacks from those opposed to recreational or social drug use. It opens the door to societal familiarity with, and appreciation of, the benefits of psychedelics; this can lead to future expansion of access outside the medical realm.

Second, a fifty-page measure detailing complex regulations could be a misstep. Clinicians do not typically practice medicine by looking to a regulatory statute. Medicine is normally governed by standard of care that allows for organic evolution of medical care as clinicians learn what is most efficacious. Forcing an intrusive government role into the practice of medicine causes many providers to “opt out” of participating, creating access problems for patients. This has been an issue with AID, and it offers a lesson that psychedelics advocates might consider. While a clinician might opt out of providing AID for a variety of reasons, including personal moral or religious objection (and this will likely be true with psychedelics), certainly, a statutory mandate detailing how this practice is to be conducted is a burden that deters some from participating. [x] 

The Iowa Bills

In a very different approach, a legislator in Iowa has introduced measures to allow medicinal use of psilocybin and some other psychedelics in that state; the measures comprise a few short paragraphs.[xi] Iowa’s approach may be preferable for multiple reasons: First, proceeding through the traditional legislative process ought to be considered. Initiative measures, such as those proposed in Oregon, are expensive and do not allow for a measure to be refined as it proceeds through legislative hearings, debate, and so on.[xii] Second, the brevity of the Iowa measures would leave the practice to normal medical governance, and standard-of-care would be able to evolve organically, yielding important benefits to patients and increasing participation by clinicians.  Finally, the limitation to medicinal use appears the most achievable first step.

Iowa, however, seems a less supportive venue for pioneering legal change involving psychedelics than Oregon for various reasons, including that it is not a state where one can make the powerful argument that dying patients are already empowered to access controlled substances to advance the time of death. Advocates might be wise to pursue the Iowa approach in a state like Oregon.[xiii]

Medicinal Use of Psychedelics in a State That Permits AID Could Lead the Way

Advocacy to move the clinical findings about the efficacy of psychedelics in mitigating and palliating anxiety related to terminal illness into the public eye will be a necessary and powerful force to galvanize changes in law and policy, thereby enabling patient access. Outreach to inform the public and elected representatives of the potential of these agents to improve the lives (and deaths) of millions of people will be necessary. Powerful message bearers would include the hospice and palliative care professional associations, public health associations, mental health associations, and patient rights advocacy organizations.

selecting a test state that permits AID is strategic because, in the debate leading to passage of the statutory permission for aid in dying, all stakeholders emphasized the need to ensure that eligible patients be provided with good palliative care to ensure that no patient would choose to precipitate death due to inadequate palliative care.

It would appear that Oregon or Washington (or possibly California), states that have the most experience with AID, are the best candidates for exploring statutory permission for medicinal psychedelics. In addition to the reason outlined above, selecting a test state that permits AID is strategic because, in the debate leading to passage of the statutory permission for aid in dying, all stakeholders emphasized the need to ensure that eligible patients be provided with good palliative care to ensure that no patient would choose to precipitate death due to inadequate palliative care.[xiv]  Thus, adding another intervention to the “tool box” of palliative measures available to terminally ill patients should be particularly welcomed in these states.

Other states may offer a favorable legal landscape to enable access to psychedelics for other reasons. Hawaii, for example, has a unique provision relating to terminally ill patients’ ability to access “remedial agents”:

When a duly licensed physician or osteopathic physician pronounces a person affected with any disease hopeless and beyond recovery and gives a written certificate to that effect to the person affected or the person’s attendant nothing herein shall forbid any person from giving or furnishing any remedial agent or measure when so requested by or on behalf of the affected person.[xv]

The purpose of this provision is to give terminally ill patients the option to access treatment not approved by the government.  Hawaii is among the states permitting AID. In light of the existing statutory landscape, it could be a favorable jurisdiction in which to advocate for access to psychedelic agents in the context of palliative care for terminally ill patients; indeed, one could argue there is no need for any further State permission and that practice can begin and emerge subject to this standard of care.[xvi]

Conclusion

Research is demonstrating the remarkable therapeutic uses of psilocybin and related agents in a variety of clinical contexts, including in the relief of non-physical suffering in terminally ill patients.  These substances remain Schedule I drugs under the federal Controlled Substances Act. A number of advocacy efforts are emerging for expanding access to psilocybin. These advocacy strategies could benefit from considering lessons from other social change movements, including that for end-of-life liberty.


Footnotes

[i] For an overview of the treatment of psychedelics in current law, see K. L. Tucker, (2018).

[ii] See Tucker,1 (2018); see also, Ali,2 (2018), recognizing that rescheduling is the necessary route due to history of criminalization.

[iii] In the evolution of law governing cannabis, state law permitting use lead to a policy of “cooperative federalism,” where the federal law enforcement opted not to enforce federal marijuana laws in states with their own regulations. See, e.g. Tucker (2018) and Chemerinsky,3 Forman, Hopper, & Kamin (2015). It is possible that such a policy will emerge with regard to psychedelics.

[iv] A threshold question for advocates seeking to change state law is whether to attempt to do so through the traditional legislative process or through direct democracy with an initiative measure. The initiative process can be a necessary resort when legislators are unwilling to take on an issue they see as “controversial.”

[v] Perhaps most significantly the measure evolved from one where the physician could administer the life ending medication to one requiring that the patient self-administer.

[vi] Only mentally competent, terminally ill patients (life expectancy of 6 months or less), who can self-administer the medication are eligible.

[vii] Oregon previously took a progressive step, through traditional legislative process, by reducing the criminal exposure for possession of psychedelics. ORH.B. 2355 (2017).

[viii] OR PSI, Sec 3, 2 (c).

[ix] Support for medicinal use of psychedelics in the context of terminal illness might come from some unlikely corners. For example, clinicians opposed to allowing dying patients access to AID may well support access to psychedelics, in hope that the patient might lose interest in AID. The palliative care provider community has begun to take interest in the emerging evidence and its implications, as evidenced by the appearance of workshop sessions on the topic at the American Academy of Hospice and Palliative Medicine (AAHPM) in both 2018 and 2019. One end of life care clinician recently ingested a psychedelic substance to increase his understanding of the experience and wrote about it in the Journal of Palliative Medicine.4). What psilocybin taught me about dying. Journal of Palliative Medicine. doi: 10.1089/jpm.2018.0561.]

[x] See, e.g.,Buchbinder5 (2018); also, S. Wohlfeil (2018),6 exploring the difficulties patients face in accessing AID in Washington despite the state’s permissive statute.

[xi] HF 248, HF 249 (Shipley 2019).

[xii] The Oregon legislature may not shy away from addressing medicinal use of psychedelics, given its willingness to dramatically reduce penalties for possession of these substances, discussed above, ORH.B. 2355 (2017).

[xiii]  A proposed draft law for medicinal psilocybin, modeled after Washington’s medical marijuana law, can be found in Tucker (2018).

[xiv] Opponents of AID have argued that since dying patients can choose AID, access to psychedelics for palliative care should be allowed.  See, e.g., I. Byock:7 In Oregon, Washington, Montana and Vermont, a physician can legally write a prescription for lethal medications for a terminally ill person, but cannot prescribe medications or make a referral for pharmaco-assisted psychotherapy that might alleviate the distress that is making the person want to end his or her life. … relaxing the prevailing legal and regulatory restrictions on such research merits a place within the policy agendas of the medical profession, particularly the specialties of psychiatry and hospice and palliative medicine. (2016, p. 379)

[xv] Haw. Rev. Stat. § 453-1 (2011).

[xvi] Proceeding without a state statute specifically allowing access to psychedelics may undermine possibility of a “cooperative federalism” approach.

References

  1. Tucker, K. L. (2018). Psychedelic medicine: Galvanizing changes in law and policy to allow access for patients suffering anxiety associated with terminal illness. Quinnipiac Health L. J., 21, 239.
  2. Ali, I. L. (2018). Is medicalization the only way to legalize psilocybin and ibogaine? Chacruna.net. Retrieved from https://chacruna.net/is-medicalization-the-only-way-to-legalize-psilocybin-and-ibogaine/
  3. Chemerinsky, E., Forman, J., Hopper, A, & Kamin, S. (2015). Cooperative Federalism and Marijuana Regulation, 62 UCLA Law Review, 62, 74–122.
  4. Back, A. L. (2018 [Epub ahead of print
  5. Buchbinder, M. (2018). Access to aid-in-dying in the United States: Shifting the debate from rights to justice.  American Journal of Public Health 108(6), 754, 756–58.
  6. Wohlfeil, S. (2018, March 8–14). A long road to die. Inlander, 24–29. Retrieved from https://issuu.com/theinlander/docs/inlander_03-08-2018
  7. Byock, I. (2016). The case against physician-assisted suicide and euthanasia. In S. J. Youngner & R. M. Arnold (Eds.), The Oxford handbook of death and dying (pp. 366–382). New York City, NY: Oxford University Press.