California Court Reverses Ruling Against Assisted Suicide

It’s been two years, and the assisted suicide law remains controversial

The End of Life Option Act (EOLOA) went into effect in June, 2016, and it continues to be contentious.

• Opponents argue that it is both immoral and unconstitutional, that there is too much room for abuse.
• Advocates believe that terminally ill Californians deserve the right to “choose a peaceful death, free of unbearable suffering,” as per John Kappos, who represents Compassion & Choices, a group that supports the law.

A California appeals court overturned a lower court order that had reversed the state’s assisted-suicide law. The ruling reversed the May 2018 judgment from Riverside County Superior Court Judge Daniel Ottolia that declared the law unconstitutional because it was adopted during a special legislative session that addressed improving the medical system and health of Californians.

To avoid abuse, checks and balances have been carefully built into the law

The EOLOA allows adults to obtain a prescription for life-ending drugs if a doctor finds they have six months or fewer to live. For those who want to use the EOLOA, checks and balances have been carefully built into the law.

• A patient must make two oral requests, at least 15 days apart. There must be witnesses and second opinions about their conditions.
• The process is spread over time to avoid someone’s making an impulsive decision.
• EOLOA is voluntary for both patients and healthcare providers.

Doctors failed to show they were harmed by failing to help terminally ill patients

In the Riverside ruling, the doctors failed to show they were harmed. EOLOA is voluntary for doctors–they can choose not to help terminally ill patients die.

The appellate ruling has no immediate impact on the current status of the law because the appeals court had put the trial court judgment on hold during California Attorney General Xavier Becerra’s legal challenge.

News that the lower court ruling had been reversed buoyed advocates of doctor-supported death. “Our patients will be tremendously relieved,” said Dr. Catherine Sonquist Forest, a family physician in Northern California who has six terminally ill patients considering the option. “Thousands across the state will find great solace in knowing this option is there.”

Will this law yo-yo back and forth as opponents and advocates battle it out in court?

The law may be facing another legal fight, as the ruling skirted the larger issue of whether the legislation was unconstitutional. The case was sent back to the lower court, and the lawsuit could be amended and refiled. The court spelled out how the law’s challengers might be able to show harm to plaintiffs.

The Pros . . .

Justice Marsha Slough said it was not a stretch for the Legislature to consider assisted suicide as an extension of a discussion on the efficiency of the health-care system. She said there was no reason to “drag this case out” before finding lawmakers acted within their authority.

And the Cons

The Life Legal Defense Foundation, representing the doctors, is considering its options. “Assisted suicide is not health care and places countless Californians at risk of deadly harm,” said Matt Vallière of the Patients Rights Action Fund.

In 2017, the first full year assisted suicide was legal in California, 374 terminally ill people took drugs to end their lives. The District of Columbia and six other states — Oregon, Colorado, Montana, Vermont, Washington, and Hawaii — also allow assisted suicide.

A big part of end-of-life planning is creating a Living Trust. Our comprehensive Living Trust package includes a Power of Attorney and an Advance Healthcare Directive, where you can identify an Agent who will make decisions for you if you become incapacitated. Make an appointment today by contacting us at one of our three Bay Area offices. Our dedicated team is helpful, compassionate and affordable.

Judge Overturns Doctor-Assisted Suicide Law and Reopens the Debate

On May 15, Riverside Superior Court Judge Daniel A. Ottolia declared that the California legislature violated the law by passing the End of Life Option Act (EOLOA) in 2015 during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law. "We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."

The response from California Attorney Gen. Xavier Becerra

Becerra’s response: "We strongly disagree with this ruling, and the state is seeking expedited review in the Court of Appeal." Becerra has filed an appeal.

Ruling reopens an emotionally charged issue

Judge Ottolia’s ruling reopens an emotional debate on Californians’ ability to make decisions on how they will spend their final days. John C. Kappos, an attorney representing Compassion and Choices, which advocated for the law, said he believes the passage of the law was constitutional because aid in dying is a healthcare issue. "Ultimately, we are confident an appeals court will rule the Legislature duly passed the End of Life Option Act and reinstate this perfectly valid law, which the strong majority of Californians support."
Even if the appeals court upholds Ottolia’s decision, the state legislature could pass a similar law, perhaps with additional safeguards. The law has strong support in the legislature and among the public.

One view: A short-term victory for those who object

Harry Nelson, a Los Angeles healthcare attorney thinks it's unlikely the law will be overturned permanently. He said that even if the court's decision stands, the Legislature would probably be able to reinstate the law with whatever changes the court deems necessary. "I think this is a short-term victory for people who object on religious principles to the availability of this option," said Nelson, who represents several doctors who have written prescriptions under the law. Nelson believes that Ottolia's decision to give Becerra five days to file an emergency appeal was "aggressive, leaving the attorney general's office with a really narrow window to do everything they need to do to get the court of appeals to intervene and uphold and continue the law," he said.

An opposing view: Assisted suicide advocates circumvented legislative process

"This ruling affirms that assisted suicide advocates circumvented the legislative process," Matt Valliere, executive director of the New York-based Patients Rights Action Fund, which opposes legalizing physician-assisted suicide, said in a statement. "It represents a tremendous blow to the assisted suicide legalization movement and puts state legislatures on notice regarding the political trickery of groups like Compassion and Choices."

EOLOA: A look back and a look forward

• California’s End of Life Option Act was signed into law in 2015, and the law went into effect on June 9, 2016.
• In the first six months, more than 100 people used the law to end their lives.
• California's data from the law's first six months show that 173 physicians wrote 191 prescriptions statewide.
• The law allows patients with fewer than six months to live to request end-of-life drugs from their doctors.
• The law’s passage was controversial and it has remained a divisive issue. Conservatives argue that the limits on euthanasia gradually erode, and that the law endangers the weak and marginalized. In the years since the law went into effect, groups opposing assisted suicide have continued to lobby for its repeal.
• Writing the lethal prescriptions is voluntary for doctors and medical facilities in California; some, including all Catholic and church-affiliated hospitals, have not allowed their physicians to prescribe such medicines.

For those who want to use the EOLOA, checks and balances are carefully built into the law. A patient must make two oral requests, at least 15 days apart. There must be witnesses and second opinions about their conditions. The process is spread over time to avoid someone’s making an impulsive decision.
Becerra is expected to file an appeal to a higher court, but he is yet to do so. Experts believe it is unlikely that the decision will affect assisted suicide in California in the long term. Even if the appeals court upholds Ottolia’s decision, the state legislature could pass a similar law, perhaps with additional safeguards. The law has strong support in the legislature and among the public.

Creating an Advanced Healthcare Directive

End-of-life care options can be detailed in an Advanced Healthcare Directive that is part of our comprehensive Living Trust package. Contact California Document Preparersat one of our three Bay Area offices to get started today. Our dedicated team is helpful, compassionate and affordable.

End of Life Option Act: Only for the Privileged?

California's End of Life Option Act took effect in June 2016. One of the biggest concerns from the bill’s opponents was that masses of people, particularly the disadvantaged, would be targeted and coerced into dying if physicians were allowed to prescribe a lethal dose of medicine for those who were terminally ill. But if we take a look at those states where the law has been in effect long enough to provide meaningful metrics (Oregon passed its law nearly 20 years ago), those fears have not been realized. A recent Los Angeles Times op-ed article by Ann Neumann discusses the realities of who is actually using this law.

Who will use the new law?

It’s been just a few months since the law went into effect here in California, so it’s too soon to know its full implications here at home, but in those states where aid in dying is legal--Oregon, Washington, Montana and Vermont--the number of people choosing to use this law is fewer than 1% of those who die each year. Based on 18 years of data from Oregon, whose Death with Dignity Act was the first such law in the nation, the majority of those who use the law are older, white and well-educated.

End of Life Option Act: a matter of insurance coverage and economics

When demographics such as education level and insurance type are analyzed along with race, Oregon's data tell us that it is the privileged who use aid in dying. Nearly 72% had at least some college and private insurance.

According to a National Public Radio report, the cost of a lethal dose of the most commonly prescribed aid-in-dying drug — the sleeping pill Seconal — rose from $1,500 to more than $3,000. Even a less expensive drug cocktail costs about $400. Insurance may cover at least some of the cost; it is up to each plan. State Medicaid funds are available in Oregon and California, but federal funds cannot be used for aid-in-dying drugs.

Aid in dying protocol a complex process

Given the nature of death with dignity laws, it isn't surprising that only a small number of people choose to make use of the right to die--it's a complex process. To get a prescription for lethal drugs, patients must be adults, and they must be deemed by two doctors to have six months or fewer to live. Patients must request a lethal prescription verbally and in writing, with a waiting period in between. If their mental competence is questioned, a psychiatrist must be consulted. Once patients obtain a prescription, they choose when to fill it and when to self-administer the drugs.

Oregon data provides a profile of who uses aid in dying

From 1998 through 2015, a total of 991 Oregonians died from ingesting DWDA drugs.

• A majority were over the age of 65 (nearly 70%).
• Slightly more were male (51%) than female.
• Most were diagnosed with terminal cancer (77%).
• Almost all were enrolled in hospice care (90%) and died at home (94%).

Racial and socioeconomic demographics of Oregon’s law

Nearly 97% of those who have exercised the right to die in Oregon were white. Keep in mind that Oregon has a relatively small minority population, but even where the percentages are higher, it's probable minorities will make use of the law in lower numbers. California’s population is much more diverse, so the numbers may be distributed more evenly across all demographic groups, though it’s too early to identify trends.

Data raises question whether aid in dying is working

If the premise of aid in dying is to prevent pain and suffering among terminally ill patients — something people of all races and from all walks of life experience — the narrow pattern of use that shows up in the data is a cause for concern. The availability of choice may be the primary factor behind the predominance of white, privileged patients seeking and using aid in dying.

Those with means always have more choices

Unfortunately, this law may represent another example of the growing disparity not just in American lives, but in the healthcare choices of its citizens.

Are you still thinking about creating a Living Trust in 2016? The California Document Preparers team can help you. Call today to schedule an appointment.

Raising Awareness: End of Life Option Act Takes Effect 6/9/16

It was October 2015 when California voters elected to become the fifth state to allow terminally ill patients to end their lives with prescriptions from their doctors. This was not an easy decision; many remember months of contentious debate; religious groups and disability rights activists heatedly opposed the law and tried unsuccessfully to get a referendum on the ballot to overturn it. Yet earlier this month the bill's authors announced that the End of Life Option Act will take effect June 9, 2016.

Time to raise awareness, ensuring that all terminally ill patients have access

As the implementation date nears, medical groups, supporters, legislators and others are working to raise awareness of the new right-to-die law and ensure that all terminally ill patients have access to it. There are webinars, panels and town hall meetings. Groups are distributing information, setting up telephone lines and encouraging terminally ill patients to discuss with their doctors whether a lethal prescription might at some point be right for them.

The conditions for obtaining physician-prescribed medications under the End of Life Option Act.

Patients must:

1. Be mentally competent and 18 or older.
2. Have six months or fewer to live, as determined by a doctor.
3. Submit two oral requests -- 15 days apart -- to the attending physician, and one written request.

Sen. Bill Monning (D-Carmel), one of the authors of the law, said he was pleased that the law now has an effective date and patients will have the option to avoid "insurmountable pain and suffering." The forms are already in place and Monning said he expects patients to begin coming forward. "There are families who have been calling us wanting to know if it will be available for a loved one," Monning said. He also acknowledged that for some, June may be too late.

Compassion & Choices: aid-in-dying outreach throughout California

Compassion & Choices is a medical aid-in-dying advocacy group that advocated for this law. It recently launched a bilingual campaign, a speaker's bureau and a free hotline for people who want more information. The group also has a confidential consultation program for doctors. The organization is sending out volunteers to saturate the state and get the word out, but there is a lot of work to do. This is something we don’t necessarily think through—it’s one thing to pass a law but another challenge to make sure people have access to the benefits of that law.

Expect inconsistency in law’s implementation

California follows Oregon, Washington, Vermont and Montana in approving lethal prescriptions. Based on the experience of other states, authorities expect some health institutions to be supportive, others not so supportive, leading to inconsistency around the state. The California Academy of Family Physicians is producing podcasts, emphasizing that this is now part of good end-of-life care. The law has triggered a lot of focus on an area of healthcare that for many was taboo. Many more physicians now need to step up to make this part of their conversation with terminally ill patients. If they’re not comfortable with this themselves, they need to know where to refer their patients because the End of Life Option Act provides a new option for terminally ill patients.

End-of-life documents are an important part of our services

Our comprehensive Living Trust package includes a Power-of-Attorney and an Advance Healthcare Directive.We also provide a section for listing the contact information for healthcare providers, insurance agents and other people who provide critical services. If you have questions, please contact us at one of our three Bay Area locations.