24 Jul Judge’s ruling stops right-to-die lawsuit | SanDiegoUnionTribune.com
CA law that prohibits a doctor from assisted suicide is constitutional, judge says
A Superior Court judge’s ruling Friday effectively halts a lawsuit seeking protections for California doctors who want to help terminally ill patients end their lives.
The lawsuit, filed in May on behalf of a San Diego physician and three people suffering from fatal illnesses, focuses on the debate over aid in dying, the term advocates prefer over doctor-assisted suicide.
“I desperately want to live,” said Elizabeth Wallner, 51, of Sacramento, one of the plaintiffs in the lawsuit. She has stage four colon cancer. “I have a 20-year-old son…,” she continued, speaking outside the downtown Hall of Justice where the hearing was held. “This is about not wanting to suffer while I die.”
Wallner and fellow plaintiff Christy O’Donnell of Santa Clarita were seated in the courtroom Friday morning when Judge Gregory Pollack heard arguments from the attorneys in the case and considered whether to allow the lawsuit to move forward.
The judge ruled that a state law that deems “every person who deliberately aids, advises or encourages a person to commit suicide” guilty of a felony is constitutional. The statute, he said, also applies to physicians.
He said there is no constitutional right to assisted suicide in California, and that it was not his job as a trial court judge to change that. Instead, he said, that job should be left to lawmakers or the voters.
“It’s up to the Legislature or the people through an initiative to change the law, not a Superior Court judge,” Pollack said.
Legislation to give terminally ill Californians the right to end their own lives was shelved recently for the year.
Should state law be changed to allow physicians to help terminally ill people end their lives?
Current law allows a terminally ill person to refuse medical treatment or demand the withdrawal of feeding tubes, dialysis or other medical intervention that would prolong a person’s life. A terminally ill person can also ask to be sedated to the point of unconsciousness, a legal form of end of life care.
But the plaintiffs in the lawsuit, supported by national right-to-die advocacy group Compassion & Choices, have said palliative sedation isn’t always the most peaceful option. They argue that patients want to be able to ask a doctor for prescription medication they can take to end their lives when and if they feel it is necessary.
“My clients don’t have time to wait for the Legislature,” said John Kappos, the Newport Beach attorney who represents Wallner and O’Donnell. He also argued that the state law impinges on a doctor’s free speech rights.
“They are nervous about talking to their patients about this subject,” he said.
The lawsuit asks for a court order permanently barring California authorities from pursuing criminal charges against any doctor who provides medical aid in dying to a “terminally ill, competent adult.” Four states – Oregon, Washington, Montana and Vermont – allow physicians to prescribe lethal drug doses to patients who fit the criteria.
A state court in New Mexico ruled in 2014 that terminally ill residents have a constitutional right to obtain aid in dying in Bernalillo County, the most populous in the state. That ruling, which is pending appeal, came as a result of a lawsuit similar to the one filed in San Diego.
A right-to-die lawsuit has been filed in Tennessee.
Attorney General Kamala Harris was named as a defendant in the San Diego suit, along with Los Angeles County District Attorney Jackie Lacey, Sacramento County District Attorney Ann Marie Schubert and San Diego County District Attorney Bonnie Dumanis.
At the hearing Friday morning, Pollack said he had concerns about whether changing the law to allow aid in dying would increase the potential for abuse. He said the state has an interest in protecting the most vulnerable members of society, including those who – because of illness, disability or mental condition – may be more susceptible to outside influences.
The judge said he was also worried that changing the law might result in suicides becoming more routine. “I am concerned about the message that would send to children,” he said.
O’Donnell, who has lung cancer that spread to her brain, spine, ribs and liver, tearfully urged the judge to consider the matter further before making his ruling final. She and Wallner hugged in the courtroom when the hearing was over.
“I know that today’s ruling will likely sentence me to a painful and protracted death,” said O’Donnell, who turned 47 Friday, said outside the courthouse. She said she probably will not live long enough to see an appellate court ruling.
A third terminally ill patient from Ventura County who is named as a plaintiff in the lawsuit was not present at the hearing.