by Bob Egelko, via SF Gate
A judge ordered a halt Tuesday to California’s right-to-die law for terminally ill patients, ruling that it was illegally taken up and passed during a special legislative session devoted to health care funding. Unless a higher court intervenes, the law, in effect since June 2016, will become unenforceable next week.
The law allows a dying adult patient to take lethal medication that a doctor has prescribed. Before that, two doctors must have determined that the patient would die within six months and was mentally competent to choose death.
State health officials reported that between June 2016 and the end of that year, 173 Californians were prescribed life-ending drugs by their doctors and 111 of them took the drugs. Similar laws are in effect in six other states and the District of Columbia.
A group of doctors represented by the Life Legal Defense Foundation challenged the California law, arguing that it lacked safeguards and could be exploited by greedy relatives. Riverside County Superior Court Judge Daniel Ottolia refused to block the measure from taking effect in 2016, citing its requirements for medical evaluation, but refused to dismiss the suit and expressed concern over how the law had been adopted.
On Tuesday, Ottolia agreed with opponents that the Legislature had lacked authority to consider and enact the bill during a special session that Gov. Jerry Brown called in 2015 to address emergency needs in the state’s health care system — specifically, funding shortages for Medi-Cal, disability care and in-home nursing care.
The judge had not yet issued a written ruling by deadline. But in comments during last year’s hearing quoted by opponents, Ottolia said the right-to-die law did not appear to be “related to improving the health of Californians,” Brown’s stated overall purpose for the session. Lawyers for both sides said Ottolia expressed similar views at Tuesday’s hearing.
Bills considered in a special session require the same majority vote as in normal legislative sessions, but are generally reviewed more quickly and take effect sooner than standard legislation. However, the right-to-die bill, which Brown signed in October 2015, was drafted to take effect in June 2016.
A special-session measure “does not receive the same degree of scrutiny and debate,” Stephen Larson, a lawyer for opponents of the law, said Tuesday.
He noted that state lawmakers had defeated four right-to-die measures during regular sessions after state voters rejected an assisted-dying law in 1992. Opposition to the law has been led by some religious groups and advocates for the disabled.
The legislation gained new support in California from the plight of Brittany Maynard, a 29-year-old schoolteacher from Alamo who was diagnosed with brain cancer in 2014. Facing a painful death, she moved to Oregon, where the nation’s first such law was passed two decades ago, and legally obtained a doctor’s prescription for the drug she used to end her life.
“I made a promise to my wife Brittany that I would continue her fight to authorize medical aid in dying,” her widower, Dan Diaz, said Tuesday in a statement released by Compassion & Choices, the nonprofit group that sponsored the California law. He said he would try to persuade Brown, the state attorney general’s office and the courts to keep the law in effect.
There was no immediate comment from California Attorney General Xavier Becerra’s office, which has defended the law in court. But Assemblywoman Susan Eggman, D-Stockton, the author of the state law, said she has learned that Becerra’s office, with Brown’s support, would ask the Fourth District Court of Appeal for a stay of the ruling and a prompt review of the law’s validity.
“If this isn’t Californians’ health care, I don’t know what is,” said Eggman, a former social worker at hospices, who disputes Ottolia’s conclusion that her bill should not have been considered during the special session. “The judge is not the governor,” she added, noting that Brown had decided the measure was related to health care when he signed it into law.
Asked for a comment, Brown’s office said Ottolia’s current assessment of the right-to-die law’s relationship to public health was different from his analysis in 2016, when he let the law remain in effect.
In his earlier ruling, Ottolia said: “Even though improving the health of Californians might seem far removed from assisted suicide, it is sufficiently related to health care and the efficiency and efficacy of the health care system for the court to consider the act to be within the scope of the authorization for the (special) session.”
Compassion & Choices also released a statement from Matt Fairchild, whom it described as a 48-year-old retired Army staff sergeant from Burbank who has been diagnosed with terminal melanoma that has spread to his bones, lungs and brain.
“I pray the attorney general successfully appeals this decision, so hundreds of terminally ill Californians like me don’t have to suffer needlessly at life’s end,” he said.
Larson, the lawyer for the Life Legal Defense Foundation, applauded “the courage demonstrated by the judge in finding the law unconstitutional.” If the ruling stands, he said, lawmakers could reconsider the issue at a regular session and set tougher standards for doctors to diagnose terminal illnesses and determine that a patient is mentally competent.
“We are hopeful that the state accepts this decision and that the matter is referred back to the Legislature for further consideration,” Larson said.