While the FDA is under no legal obligation to regulate the drugs used in executions, these recent developments certainly create a moral imperative requiring review. This paper will argue that the federal government cannot consistently refrain from regulating lethal injection drugs while arguing for prosecution of those prescribing drugs to be used by patients in assisted suicide. Part II will look at the opinions in Chaney and the factors behind the FDA's decision not to regulate the drugs used in executions. Part III will look at Oregon's Death with Dignity Act and its authorization by the Supreme Court. Parts IV-VI will analyze how the justifications given by the FDA in the early 1980s, for not regulating the drugs used in executions, are no longer valid in 2003. Part IV will discuss how lethal injection now constitutes a serious public health issue. In the early 1980s, only two hundred prisoners were subject to lethal injections, and scant evidence existed of its dangerousness. Now, after two decades of botched executions and the ascendance of lethal injection as the near exclusive method of execution, it is evident that the process has caused serious damage. Part V will look at the inconsistency in the federal government's classification of lethal injection as a legitimate medical practice that the FDA will not regulate and in its claim that physician assisted suicide (PAS) is an illegal state practice subject to federal nullification. It will argue that lethal injection is 1) more disfavored by medical groups, 2) less consistent with the Hippocratic Oath, 3) a more active form of killing for the physician, and 4) less consistent with the standard medical treatment model than PAS. Finally, Part VI will discuss how capital punishment is less of a duly authorized state practice than PAS.
Colin Miller, Death by Any Other Name: The Federal Government's Inconsistent Treatment of Drugs Used in Lethal Injections and Physician-Assisted Suicide, 17 J.L. & Health 217 (2002-2003)