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20 Jun 2018

Imposing 'Morals': As Attorneys Fight in Court Over the Fate of California's End of Life Option Act, Terminally Ill People Face Legal Limbo

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During the short and unsettled lifespan of California’s End of Life Option Act—signed into law by Gov. Jerry Brown in October 2015, and taking effect on June 9, 2016—terminally ill patients diagnosed as having no more than six months left to live have become the targets of repeated legal challenges, leaving their precious final days in this world unsettled and unclear.

The fate of the law has been particularly unsettled since May 15, when Riverside County Superior Court Judge Daniel Ottolia ruled the law was invalid on the grounds that it was passed unconstitutionally during a special session of the California Legislature. During the session, Gov. Jerry Brown directed legislators to enact legislation that would improve healthcare for the state’s citizens. As result of Judge Ottolia’s ruling, participating physicians were barred from writing prescriptions for sanctioned life-ending drugs, while pharmacists were forbidden from providing those drugs to qualifying patients.

A couple of weeks later, Ottolia denied a motion filed by two terminally ill adults and one physician requesting that he vacate his earlier ruling to invalidate the law. But on June 15, the state’s 4th District Court of Appeal granted a stay of Ottolia’s ruling following emergency motions filed by the two patients, the doctor and Attorney General Xavier Becerra. As a result, the End of Life Option Act (EOLA) remains in effect until all of the legal challenges can be resolved.

Both national and California-focused surveys conducted over the last few years show that about 70 percent of citizens support a terminally ill person’s right to determine the point at which their life will end.

The law is indeed helping terminally ill Californians. The first annual report from the California Department of Public Health, as required by the law, was issued in July 2017. It showed that through Dec. 31, 2016, 191 terminally ill Californians had received prescriptions from 173 doctors for aid-in-dying medication. During those first nearly seven months of the law, 111 of those individuals (58 percent) decided to self-ingest the medication. There were no indications the law had been abused by motivations of suicide or greed—something opponents of the law said could happen. The second annual report is due this July.

Despite public support of the law, and the apparent the lack of abuse, opponents of death-with-dignity laws nationwide continue to push the courts to invalidate them.

John Kappos, a partner at O’Melveny and Myers LLP, which currently represents the national Compassion and Choices organization, said he’s dismayed that EOLA opponents keep trying to push their version of morality on others.

“If the choice (to participate as a patient or doctor in California’s ELOA) is voluntary, as described in the law, then why should a few people who do not like the option’s existence be able to decide for everyone who might want to avail themselves of the end-of-life option?” he asked.

Joan Nelson is an 82-year-old resident of Marin County who suffers from a rare and terminal form of cancer called leiomyosarcoma. She decided to enter the legal fray as one of the two patients who filed the motions that led to the stay of Judge Ottolia’s ruling, in part because of her family history.

“When I was a little girl, my grandmother came into the house, and she died there,” Nelson said. “I was maybe 4 ½ to 5 years old, and I was really proud, because I had learned how to skip. I wanted to skip for her, and they kept telling me I couldn’t. But finally, they let me into the room. They told me not to look at her. … The shades were drawn, but I skipped a few steps, and then I left the room. … I was supposed to be content, but I remained frustrated all my life. As a result, I became an amateur thanatologist, and I’ve been fascinated by the phenomenon of death all my life.

“I’ve been on a mission to normalize death for a long time. My parents did not handle their deaths well with me. They did not allow me to see their dead bodies or their ashes. They were trying to protect me, but instead, they left me with a whole lot of incompletes.”

Nelson said she believes the court decisions won’t affect her either way.

“I think I’m free,” she said, happily. “I’ve got my meds, so I’m free to do what I want. I am blessed, and having these medications is enabling me to avoid what I call those dreaded “D’s”: decline, diminishment and all of that. I may never take the medication, but I no longer have fear of watching myself go into a horrible downhill spin. I’m no longer afraid of that.”

Just before the California 4th District Court of Appeal issued the stay, Kat West, the national director of policy and programs with Compassion and Choices, described the chaos terminally ill patients were facing as a result of the court battles.

“There are a lot of patients and their family members who have been left in limbo,” West said. “That’s the worst result. Also, we’re hearing from a lot of hospice staff people who are really upset and asking us what to do and how to help their patients. We’re getting calls from doctors whose patients are in the midst of this process, and they’re very upset, because they feel that they’ve been forced to abandon their patients at their greatest time of need. It’s been a horrible, tragic situation.”

The issue probably won’t be settled any time soon; the case will likely need to be decided by the California Supreme Court.

“The appeals court made the legally correct decision by reinstating the status quo of the law being in effect,” Kappos said it a press release. “… Ultimately, we are confident the courts will rule the law is constitutional and valid.”

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