[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Proposed Rules]
[Pages 51074-51076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25913]


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LEGAL SERVICES CORPORATION

45 CFR Part 1643


Restriction on Assisted Suicide, Euthanasia, and Mercy Killing

AGENCY: Legal Services Corporation.

ACTION: Proposed rule.

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SUMMARY: This rule is intended to implement a new statutory restriction 
that amends the Legal Services Corporation Act (``LSC'' or 
``Corporation'') and is applicable to recipients of grants from the 
Legal Services Corporation. The restriction prohibits the use of LSC 
funds by recipients for legal or other assistance that would cause, 
assist in, advocate for, or fund assisted suicide, euthanasia, or mercy 
killing.

DATES: Comments should be received on or before October 30, 1997.

ADDRESSES: Comments should be submitted to the Office of the General 
Counsel, Legal Services Corporation, 750 First St. NE., 11th Floor, 
Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, (202) 
336-8817.

SUPPLEMENTARY INFORMATION: The Assisted Suicide Funding Restriction Act 
of 1997 (``Assisted Suicide Act'' or ``Act''), Pub. L. 105-12, was 
enacted and became effective on April 30, 1997. Several provisions of 
the Assisted Suicide Act expressly apply to the Legal Services 
Corporation, one of which amends Section 1007(b) of the LSC Act, 42 
U.S.C. 2996f(b)(11). This rule is intended to implement this 
legislation as it applies to the Corporation and its recipients.

Background and Summary of Law

    The stated purpose of the Assisted Suicide Act is to maintain 
current Federal policy that Federal funds not be used to support, 
assist in, or advocate for assisted suicide, euthanasia or mercy 
killing. H. Rep. No. 46, 105th Cong., 1st Sess. at 3 (April 8, 1997). 
Although assisted suicide, euthanasia and mercy killing are illegal in 
almost all states, Congress was concerned that pending litigation might 
change the status quo and wanted to make it clear by legislation that, 
regardless of a change in State law, Federal policy would remain the 
same. H. Rep. at 3-4. Subsequent to the passage of the Act, the Supreme 
Court upheld as constitutional laws in the States of New York and 
Washington which prohibit assisted suicide and euthanasia. See Vacco v. 
Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 
2302 (1997). The State of Oregon, on the other hand, adopted an 
initiative in 1996 that legalized physician-assisted suicide for 
competent, terminally ill adults. H. Rep. at 4. Court challenges have 
kept the law from going into effect and a new initiative to repeal the 
law will be on the ballot this November. See Associated Press, 
September 15, 1997 (1997 WL 2549490); Lee v. Oregon, 107 F.3d 1382 (9th 
Cir. Feb. 27, 1997); Petition for Certiorari Filed, 65 USLW 3783 (May 
16, 1997) (No. 96-1824).
    The Assisted Suicide Act applies to numerous Federally funded 
health care programs and facilities, such as Medicare, Medicaid, 
CHAMPUS and the veterans' and military health care systems. It also 
applies to certain legal aid and advocacy programs, including the Legal 
Services Corporation.
    Section 9 of the Assisted Suicide Act amends Section 1007(b) of the 
LSC Act to provide that `` No funds made available by the Corporation 
under this title, either by grant or contract, may be used * * * to 
provide legal assistance in a manner inconsistent with the Assisted 
Suicide Funding Restriction Act of 1997.'' Section 5 of the Assisted 
Suicide Act sets out the restrictions as they apply to LSC funds by 
generally prohibiting the use of appropriated funds for legal or other 
assistance for the purpose of (1) securing or funding any

[[Page 51075]]

activity or service that would assist in or cause the suicide, 
euthanasia, or mercy killing of an individual; (2) compelling any 
person or entity to provide funding or service for such purposes; or 
(3) asserting or advocating a legal right to assisted suicide, 
euthanasia or mercy killing. Finally, Section 3(b) clarifies what 
activities are not included within the restrictions.
    This proposed rule implements those sections of the Act that apply 
to the Corporation. A section-by-section analysis of this proposed rule 
is set out below.

Section 1643.1  Purpose

    The purpose of this proposed rule is to ensure that LSC recipients 
do not use any LSC funds to engage in legal assistance activities 
inconsistent with the Assisted Suicide Act.

Section 1643.2  Definitions

    The definitions in this section are all based primarily on the 
House Report for the Assisted Suicide Act and the common dictionary 
definitions of the terms. H. Rep. at 12; Random House Webster's College 
Dictionary (1997) (``Webster's''). Assisted suicide is defined as 
providing any means to another person to enable or assist that person 
to commit suicide. See Webster's at 80 (suicide aided by a person, esp. 
a physician, who organizes the logistics of the suicide). For example, 
if a doctor provided a person with a lethal drug overdose so that the 
person could commit suicide by ingesting the lethal overdose, the 
action of providing the drug overdose would constitute assisted 
suicide.
    Euthanasia and mercy killing have the same meaning. The consistent 
use of both terms throughout the Act might suggest that they are two 
different activities. However, both the House Report and Webster's 
Dictionary give them the same meaning. Apparently, State laws commonly 
use the terms together or use one term or the other to mean the same 
activity.<SUP>1</SUP> Euthanasia and mercy killing are defined as the 
active means by one person to cause the death of another person for 
reasons assumed to be merciful, regardless of whether the person who is 
killed consents to be killed. According to the House Report, such a 
death is often considered merciful because the person is deemed to be 
dying or suffering or the person is considered to be a burden on 
family, community or society. H. Rep. at 12.
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    \1\ The terms are found in statutes from 45 States and the 
District of Columbia, which disapprove of euthanasia, mercy killing, 
suicide, or assisted suicide in their natural death/living will 
statutes, or in their durable power of attorney for health care 
acts. For citations to these statutes, see Relief or Reproach?: 
Euthanasia Rights in the Wake of Measure 16, 74 Oregon Law Review, 
449, 462 notes 44 and 45 (Summer 1995).
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    Suicide is defined as the taking of one's own life voluntarily and 
intentionally and is included in this rule to clarify its meaning 
within the term assisted suicide.

Section 1643.3  Prohibition

    This section prohibits the use of LSC funds by recipients for legal 
or other assistance for those activities delineated therein. Paragraph 
(a) prohibits a recipient from using LSC funds for any action that 
would cause or assist in causing the suicide, euthanasia or mercy 
killing of an individual. This would include, for example, providing a 
client with assistance to obtain the means of death or providing a 
client the financial means for death by suicide or euthanasia.
    Paragraph (b) prohibits the use of LSC funds for compelling any 
person or private or governmental entity to engage in the activities 
prohibited in paragraph (a). For example, a recipient could not provide 
legal assistance to a client for the purpose of suing a public or 
private hospital to permit the individual to receive assistance in 
committing suicide in its facilities.
    Paragraph (c) implements Section 5(a)(3) of the Assisted Suicide 
Act and prohibits asserting or advocating a legal right to cause or 
assist in causing the suicide, euthanasia, or mercy killing of an 
individual. This means, for example, that legal assistance could not be 
provided to assert that a law or regulation prohibiting or regulating 
assisted suicide, euthanasia, or mercy killing is unconstitutional or 
otherwise in violation of the law. It would also prohibit any lobbying 
efforts to promote or advocate for passage of legislation that would 
legalize assisted suicide, euthanasia, or mercy killing.

Section 1643.4  Applicability

    Paragraph (a) of this section is based on Section 3 (b) of the 
Assisted Suicide Act, which clarifies that the Act's restrictions do 
not apply to or affect any limitation relating to certain activities. 
Subparagraphs (a)(1) through (a)(3) clarify that the restrictions are 
intended to include the use of active means of causing death, such as 
by lethal injection or the provision of a lethal oral drug overdose, 
but do not apply to or affect any limitation relating to decisions to 
withhold or withdraw medical care, medical treatment, nutrition, or 
hydration. Nor do the restrictions apply to or affect limitations 
relating to abortion activities. This means that the Corporation's 
current restrictions on abortion activities are unaffected by this rule 
and are still in full force and effect in their current status, see 45 
CFR Sec. 1610.2 (a)(7) and (b)(10).
    LSC recipients traditionally do not become involved in legal 
assistance in the area of assisted suicide or euthanasia, but they do 
provide legal assistance to clients in preparing advance directives, 
such as living wills and powers of attorney. The preparation of such 
documents will generally be unaffected by this rule, because the rule's 
restriction only applies to active means of causing death. Advance 
directives normally apply to passive actions, such as withholding or 
withdrawing nutrition or medical care. Only if an advance directive 
includes a directive to secure death by active means, that is, by 
assisted suicide, euthanasia or mercy killing, would it be restricted 
by this rule. This is unlikely since such actions are illegal in most 
States.
    Subparagraph (a)(4) clarifies that the restriction does not include 
treatment aimed solely at alleviating suffering, even if the treatment 
has the unintended consequence of risking or shortening life. Thus, the 
restriction would not include the administration of morphine for the 
purpose of alleviating pain, even if its use might risk causing death 
or risk shortening life because it might also have the side effect of 
suppressing respiratory functions. The restriction, however, would 
include treatment that has a two-fold purpose of alleviating pain or 
discomfort and causing death.
    Paragraph (b) clarifies that the prohibition on LSC funds does not 
apply to a recipient's non-LSC funds. Section 5 of the Assisted Suicide 
Act expressly applies the restriction only to ``funds appropriated by 
Congress.'' This is also reflected in the House Report, which provides:
    Section 5 is not intended to have the effect of de-funding an 
entire program, such as a Legal Services program or other legal or 
advocacy program, simply because some State or privately funded portion 
of that program may advocate for or file suit to compel funding or 
services for assisted suicide. This section is intended only to 
restrict Federal funds from being used for such activities.
House Report at 19-20. Recipients may have other Federal grants 
restricted by various provisions of the Assisted Suicide Act. This 
paragraph does not affect the recipient's obligation to comply with all 
the terms of such a grant. Although this rule restricts only the use of 
LSC grant funds, a recipient's other funds are still subject to any

[[Page 51076]]

restrictions that are included in other grant agreements.

Section 1643.5  Recipient Policies, Procedures and Recordkeeping

    This section requires the recipient to establish written policies 
and procedures to guide the recipient's staff to ensure compliance with 
this rule. Recipients are also required to maintain sufficient 
documentation to demonstrate compliance with this part. The type of 
recordkeeping necessary to demonstrate compliance with this rule would 
be documentation that only non-LSC funds were used for any activities 
prohibited by this rule.

List of Subjects in 45 CFR Part 1643

    Grants, Health Care, Legal Services, Lobbying.

    For reasons set forth in the preamble, LSC proposes to amend 
Chapter XVI of Title 45 by adding part 1643 as follows:

PART 1643--RESTRICTION ON ASSISTED SUICIDE, EUTHANASIA, AND MERCY 
KILLING

Sec.
1643.1  Purpose.
1643.2  Definitions.
1643.3  Prohibition.
1643.4  Applicability.
1643.5  Recipient policies, procedures and recordkeeping.

    Authority: Pub. L. 105-12; 42 U.S.C. 2996f (b)(11).


Sec. 1643.1  Purpose.

    This part is intended to ensure that recipients do not use any LSC 
funds for any assisted suicide, euthanasia or mercy killing activities 
prohibited by this part.


Sec. 1643.2  Definitions.

    (a) Assisted suicide means the provision of any means to another 
person with the intent of enabling or assisting that person to commit 
suicide.
    (b) Euthanasia (or mercy killing) is the active means by one person 
to cause the death of another person for reasons assumed to be 
merciful, regardless of whether the person killed consents to be 
killed.
    (c) Suicide means the act or instance of taking one's own life 
voluntarily and intentionally.


Sec. 1643.3  Prohibition.

    No recipient may use LSC funds to assist in, support, or fund any 
activity or service which has a purpose of assisting in, or to bring 
suit or provide any other form of legal assistance for the purpose of:
    (a) Securing or funding any item, benefit, program, or service 
furnished for the purpose of causing, or the purpose of assisting in 
causing, the suicide, euthanasia, or mercy killing of any individual;
    (b) Compelling any person, institution, or governmental entity to 
provide or fund any item, benefit, program, or service for such 
purpose; or
    (c) Asserting or advocating a legal right to cause, or to assist in 
causing, the suicide, euthanasia, or mercy killing of any individual.


Sec. 1643.4  Applicability.

    (a) The restriction in Sec. 1643.3 shall not apply to or affect any 
limitation relating to:
    (1) The withholding or withdrawing of medical treatment or medical 
care;
    (2) The withholding or withdrawing of nutrition or hydration;
    (3) Abortion; or
    (4) The use of items, goods, benefits, or services furnished for 
purposes relating to the alleviation of pain or discomfort even if they 
may increase the risk of death, unless they are furnished for the 
purpose of causing or assisting in causing death.
    (b) This part does not apply to activities funded with a 
recipient's non-LSC funds.


Sec. 1643.5  Recipient policies, procedures and recordkeeping.

    The recipient shall adopt written policies and procedures to guide 
its staff in complying with this part and shall maintain records 
sufficient to document the recipient's compliance with this part.

    Dated: September 25, 1997.
Suzanne B. Glasow,
Senior Assistant General Counsel.
[FR Doc. 97-25913 Filed 9-29-97; 8:45 am]
BILLING CODE 7050-01-P