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Chronic Pain, Abortion and the Regulation of Medicine

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Right now in Virginia, a jury is deliberating on the fate of some 30 million Americans who suffer from chronic pain. While technically, they are deciding whether or not to re-convict Dr. William Hurwitz on charges of dealing drugs rather than practicing medicine, in fact, the case has enormous implications for whether doctors will feel free to treat many chronic pain patients with the only medications that touch their pain, the opioids. The recent Supreme Court decision on "partial birth abortion" has also cast a disturbing shadow over relations between doctors and patients.

In today's New York Times, John Tierney describes some of the dramatic testimony in the Hurwitz case-- including the story of a patient who was treated by both Dr. Hurwitz, and by one of the government's paid expert witnesses, Dr. Robin Hamill-Ruth.

The patient, Kathleen Lohrey, suffered migraines so severe that she'd once been hospitalized to prevent her from committing suicide. Hamill-Ruth dismissed her with a prescription for an anti-anxiety medication and a referral to a psychologist, ignoring her pleas for relief by saying that her clinic's policy "includes avoidance of all opioids in chronic headache management," even though Lohrey had found that nothing else helped.

She said she'd see Lohrey again in two and a half months. Under questioning by the defense, Hamill-Ruth admitted that she didn't know that a side effect of the medication she'd prescribed was headache.

Hurwitz, on the other hand, listened to Lohrey, prescribed opioid medication and gave her his mobile number, saying she should call any time if she had pain or needed medical assistance. When she lost her insurance, he continued to see her for free and helped her get medications via a drug company program for those who cannot afford them. Under Hurwitz' care, Lohrey was able to function-- but after his conviction, other doctors again refused to prescribe the amount of medication she needed to get relief.

As Tierney describes her testimony:

"The last two weeks, I was pretty much in bed and sick with the headaches and the nausea and the whole nine yards," she said, explaining that she had deliberately undergone the two weeks of pain in order not to use up any of her pills.

"I had to save up medication," she testified, "so I could be here today."

Hamill-Ruth called Hurwitz' prescribing "illegal and immoral." If that's the case, we have a serious problem with our laws and ethics.

Fortunately, unlike in his previous trial, this jury has been told that Hurwitz could not have unintentionally been a drug dealer by prescribing outside the bounds of medicine.

That reasoning came from the Supreme Court's decision in Oregon v. Gonzales, when the court ruled that the attorney general could not use anti-drug laws to determine that assisted suicide was not a legitimate medical practice. The regulation of medicine is supposed to be a job for the states and the Court ruled that the attorney general does not have the power to set the boundaries of medical practice.

Now, of course, the Court has muddied medical matters once again, determining that a ban on "partial-birth abortion" is constitutional, despite medical testimony that there are legitimate uses for the procedure. Ob-gyn's are going to have the next run in with the "chilling effect" as they discover that when the government sets medical standards with little precision, criminal convictions are easy to obtain. Far easier-- as Hamill-Ruth's anti-opioid policy suggests-- to simply avoid the risk of practices the government dislikes, patients be damned.

If the jury decides that Hurwitz' prescribing was medicine, not drug dealing, pain doctors will have at least some protection if they want to treat their patients humanely. Whether such protection will be returned to women's reproductive health, unfortunately, is now an open question.