With so many fears and so little time, cancer patient Matt Fairchild now faces a new anxiety: When life’s too miserable, can he get help ending it?
Before this week’s court ruling tossed out California’s right-to-die law, “I didn’t have to think about suffering,” said Fairchild, 48, a retired Army sergeant with incurable melanoma. “Now it’s one more thing on my daily list to have to worry about.”
The ruling by a judge in Riverside County’s Superior Court is narrow and technical, based on his finding of a procedural misstep: The law wasn’t enacted correctly. He didn’t find fault with the law itself.
But it re-opens an emotionally fraught issue, throwing into question the fate of Californians’ final days.
“It has thrown more of our patients into a tizzy, calling all upset, thinking they won’t have the option unless they do it now,” said Dr. Lonny Shavelson, a former emergency department doctor whose Berkeley-based practice Bay Area End of Life Options works with patients who cannot find a doctor to write a prescription to end their lives. “We have had to pull them back from the cliff.”
“The patients we see are quite sick, quite close to death — and the last thing they need was a procedural kerfuffle like this,” he said.
For now, the law stays in place. The state attorney general was allowed five days to ask the judge to suspend his judgment while the state appeals the case. If that request is approved, as expected, dying patients will continue to have access to prescriptions for a fatal dose of medication, said Kathryn Tucker, director of UC Hastings College of the Law’s End of Life Liberty Project.
The dispute moves next to the Fourth District California Court of Appeal, Division Two, located in Riverside and governing Riverside, San Bernardino, and Inyo Counties. The outcome is uncertain. Linda J. Vogel, a former appellate court attorney from Pomona, called the court “conservative, politically and socially – it does not go out on a limb.”
But the fight likely won’t stop there. One way or another, the law will end up at the state’s Supreme Court. That court will only review the lower court’s ruling; it can’t go beyond that. So it won’t decide, for instance, whether aid-in-dying is a good idea or not.
If the courts strike down the law, proponents say they’ll take the campaign back to the Legislature – reopening a wrenching debate with testimonies from the dying and the devout. Would it fare differently this time, now that there’s a two-year track record? It’s anyone’s guess. None of the predicted problems, such as coercion or exploitation, have been reported. Yet legislators’ personal and religious objections may hold as firm as ever.
The law is vulnerable because of its messy route to passage in 2015.
It sailed smoothly through the state Senate but stalled in the Assembly Health Committee. Democrats were split: The bill was supported by legislators from affluent, liberal coastal districts, but opposed by more culturally conservative members from Southern California’s heavily Catholic, working class or agricultural districts.
Rather than starting over again, sponsors re-packaged it for a vote in a special legislative session to fix health care funding for the poor – a gambit that allowed them to bypass opponents. Senate sponsors Bill Monning, D-Carmel, and Lois Wolk, D-Davis, defended the unusual strategy back then, saying time was of the essence.
Opponents were infuriated. “The special session was called for another purpose – to deal with a funding shortfall, to help the poor,” said Dr. David Stevens, executive director of the Tennessee-based American Academy of Medical Ethics, also known as the Christian Medical and Dental Society, a plaintiff in the suit. “This was added to the agenda.”
In his ruling Tuesday, Judge Daniel A. Ottolia judge agreed.
The state Constitution requires legislators to stick to the topic and agenda of a special session.
The session was focused on healthcare, although it did not specifically mention end-of-life care. Was its agenda broad enough to include a debate on that issue? That’s the heart of the dispute.
It all hinges on the legal interpretation of a vague and contentious phrase in the “Proclamation” by Gov. Jerry Brown that authorized the special session. That Proclamation authorized a vote, he wrote, on legislation “necessary …. to improve the health of Californians.”
So the overarching question, posed by the phrase, is whether allowing people to actively hasten their death helps them – or harms them.
Of course it helps, say supporters. “The practice of aid to the dying is a medical practice,” said UC Berkeley’s Tucker.
“The Act addresses both existential and physical suffering of terminally ill patients,” agreed Thaddeus Mason Pope, director of the Health Law Institute at Hamline University in St. Paul. “It strains credulity to suggest that the Act, which focuses on regulating physician-patient interactions, does not relate to healthcare.”
No – it harms them, according to opponents.
“It does not protect some of our most vulnerable Californians,” said Escondido doctor George Delgado, founder of Culture of Life Family Services and a plaintiff in the case. “If you saw someone on the Golden Gate Bridge, ready to jump off, saying ‘I have a terminal disease and I want to die,’ we would not say ‘Go ahead and jump!’.”
“It shifts the state policy from preventing suicide to allowing it, and even facilitating it by paying for it through MediCal,” said Alexandra Snyder, an attorney and executive director of the Napa-based Life Legal Defense Foundation, also a plaintiff.
The roll-out of the law has been uneven. Hospitals and doctors are not obligated to prescribe drugs to induce death. Hospitals affiliated with the Catholic Church don’t participate. Some secular hospitals and other providers also have declined.
While polls show broad support among Californians, there continues to be opposition to the law among many physicians, said Dr. Aaron Kheriaty, associate professor of psychiatry and director of the Medical Ethics Program at the University of California Irvine School of Medicine.
“When push come to shove, most doctors still do not want to participate,” he said. “That’s consistent with where doctors have been traditionally; it’s consistent with the American Medical Association.”
During the first year of the law in 2016, 191 aid-in-dying drug prescriptions were written and 111 patients died — far below the 1,000 initially estimated by the Death With Dignity National Center in Portland. (There has been no update to the state database since December 2016.)
Compared with the state’s average population, people who use the drug are disproportionately white and college-educated. The average age was 73. Nearly 60 percent had cancer.
“It has been slow, as all medical roll-outs are,” said Berkeley’s Shaverson, whose office has taken calls from about 600 patients and has been at the bedside of 87 patients. He gets three to four new calls a week.
“There is no formal training yet. A lot of doctors, even in urban areas, don’t know what to do, so they’re uncomfortable,” he said. “It’s getting better. But it’s still not good.”
Fairchild of Burbank said that passage of the law reassured him he’d have control over an awful and unruly experience, and his UCLA doctors are supportive. He was getting an ultrasound when he heard Tuesday’s news, and felt angry. “We’ve done this already. It’s passed,” he said. “Now you’re going in and ripping out something that’s in place for me — pulling out a piece of my health care, for no reason.”
But Stephanie Packer of Orange, a 35-year-old single mother of four who has terminal scleroderma, a chronic autoimmune disease that causes scar tissue to form in her lungs, welcomed its defeat, saying the law victimizes the vulnerable. She said her insurance company initially denied treatment for a chemotherapy drug to slow disease progression — but she was told it would pay $1.20 for a lethal dose of barbiturates to end her life.
“So exciting!! God hears our cries and answers our prayers!” she wrote on her Facebook page after Tuesday’s ruling. “Choice is really an illusion for a very few. For too many, assisted suicide will be the only affordable ‘treatment’ that is offered them.”
If the law survives this legal challenge, it will soon face yet another one — from a completely opposite flank.
A new suit — asserting that the law is too rigorous, not too permissive — will be filed in the next several months by UC Hastings’ Tucker. The law has too many requirements and the 15-day waiting period for the drug is so long that many patients die first, she said.
“It is too burdensome,” she said. “Too many patients are denied their right to choose.”
