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Law Office Management
Aug. 2, 2015
An Ethical Tightrope
As the California Legislature wrestles with the End of Life Option Act, litigation over aid in dying continues in the courts.
Long before the doors of hearing room 4203 opened, the hallway outside was packed.
People from across California crowded the fourth floor of the Capitol building in
Sacramento, chatting in groups or pacing?antsy with anticipation?as they awaited the
start of the meeting. The Senate Health Committee would consider several matters that
March day, but nearly everyone had come for one reason: It was the first hearing on
Senate Bill 128, a contentious piece of legislation that would give terminally ill
Californians access to life-ending medication.
When the doors finally opened the crowd rushed in, quickly filling the lower level
of the chamber and the balcony overhead. Mindful of its eager audience, the committee
dashed through procedural business and on to the main event. Sen. Lois Wolk (D-Davis),
who co-sponsored the bill, known as the End of Life Option Act, introduced it with
a somber recollection of her mother's painful demise. "Death comes to all of us,"
she began. "We prefer not to think about it, but if we do, we might prefer to die
in our sleep at a ripe old age." For many the reality is very different, she continued.
"There can be an agonizing descent into physical and mental deterioration." Around
the packed chamber, advocates in yellow T-shirts nodded in agreement, their "Support
SB 128" signs resting at their feet, while red-shirted opponents sporting "No Assisted
Suicide in California" buttons looked on. "It does not have to be this way," Wolk
concluded. "It should not be this way."
A charged debate is playing out across California. Proponents argue that having the
option to end one's life is a fundamental personal liberty. Equally impassioned opponents
contend the law devalues human life, puts vulnerable people at risk for abuse, and
places physicians squarely at odds with their most fundamental mandate?to do no harm.
"It just stirs so much emotion," says Toni Broaddus, California campaign director
for Compassion & Choices (formed in 1980 as the Hemlock Society), the leading national
organization advocating for medical aid in dying. "Death is one of the last taboos
in our society."
In the summer of 2010, the popular Bay Area legal recruiter Marty Africa learned her
cancer had returned. Her doctors weren't optimistic. Africa, a founder and name partner
of Major, Lindsey & Africa, had heard this before. When she was first diagnosed with
breast cancer two decades earlier, she had been given a grim prognosis. This time
the cancer had reached her bones, yet she still beat it back for another four years.
Dogged as Africa was, when she saw that she wouldn't be able to hold out much longer,
she began reminding those around her of a decision she'd made years before: She would
die on her own terms.
"She always said, 'When it's time to go, I'm checking out. I've had a wonderful life,
and I'm not going to stick around when I'm miserable,' " recalls Frederick C. Hertz,
a close friend of Africa's and a Bay Area lawyer.
As the end of Marty Africa's life neared, she told her doctor what she'd been telling
friends and family for years: When she was ready, she wanted to die quickly and quietly.
When she and her husband, Stewart Levine, discussed this with the physician managing
her pain, he assured them that palliative sedation was the best option. Levine admits
that maybe he just heard what he wanted, but he remembers the doctor explaining that
Africa would simply go to sleep. "We thought you went bye-bye, that was it."
After the treatment began, Levine and his family were left with a different reality:
Though the drugs rendered Africa unconscious, she was very much alive. "I wouldn't
call it a peaceful process," Levine says. It wasn't swift either. For several days
they watched Africa gasp and make noises as her body slowly failed. "We couldn't understand
why she wasn't dead yet," he says. "That's not what she wanted."
In many ways the care Africa got at the end of her life was exceptional. "His care
was exquisite," Levine says of her last physician, "but he was operating within certain
ethical and legal constraints." The doctor assuaged their fears of a prolonged and
painful death by offering the only tool he had, but he spared them the gritty details?and
those would have made all the difference. "We might have chosen Oregon or Switzerland,"
Levine says, "had we gotten a full picture."
Although California does not criminalize suicide (see In Re Joseph, 34 Cal. 3d 429, 433 (1983)), under state law it is a felony to deliberately help
someone take their life. The statute has been on the books since 1874 (Cal. Penal
Code § 401). Assisted suicide is also illegal in 44 other states and the District
of Columbia.
But medical aid in dying is not a new issue. In A Merciful End: The Euthanasia Movement in Modern America, historian Ian Dowbiggin traces the roots of the movement back a century. He writes
that burgeoning interest in the wake of World War II was overshadowed by the medical
killings in Nazi Germany?which targeted some 100,000 disabled adults and children.
By the 1960s, however, support was beginning to coalesce. In the years since, advocates
have unified and split, organizations have formed and dissolved, and legalization
campaigns have found varying degrees of success. But according to Dowbiggin, one fact
holds: High-profile cases that put a human face on the issue have played the biggest
role in propelling efforts forward.
Most recently, a young California woman with green eyes and a broad smile captivated
audiences across the world with her story. Twenty-nine-year-old Brittany Maynard was
diagnosed with a brain tumor on January 1 of last year and told she had less than
six months to live. When she learned the details of her disease's progression, and
the symptoms she could expect, Maynard opted to move to Oregon, where dying patients
can legally get life-ending medication from their doctors. In her final months she
advocated prominently on behalf of Compassion & Choices.
Gallup polls show a majority of Americans have supported physician-assisted euthanasia
for terminally ill patients for the past 20 years. And since Maynard's death, legislators
across the country have taken up or renewed efforts to pass laws allowing terminally
ill patients to end their lives with prescribed drugs?27 states and Washington, D.C.,
have now made legislative moves. Maynard's former home state was among the first to
jump in.
California's End of Life Option Act is modeled after Oregon's Death with Dignity Act,
the first legislation of its kind in the country. The Oregon measure was put forward
on a statewide ballot in 1994, and it barely passed with 51 percent of votes. Legal
actions delayed implementation until October 1997. The following month voters soundly
defeated a ballot initiative that would have repealed the act, and eventually the
U.S. Supreme Court rejected challenges to it. (See Ore. Rev. Stat. §§ 127.800127.897; Gonzales v. Oregon, 546 U.S. 243 (2006).) Only two other states have enacted similar laws: Washington
voters adopted one in 2008 (Wash. Rev. Code § 70.245), and Vermont's legislature
passed the Patient Choice and Control at End of Life Act in 2013 (Vt. Stat. Ann.,
tit. 18, §§ 52815292). Courts in two more states have opened the way to medical aid in dying: The
Montana Supreme Court paved the way by ruling that state law shields doctors from
prosecution; and a decision in New Mexico (now on appeal) affirmed that terminally
ill patients have a fundamental right to aid in dying under the state constitution
and that doctors are protected from prosecution. (See Baxter v. State, 354 Mont. 234 (2009); Morris v. Brandenburg, No. D-202-CV 2012-02909 (N. Mex. Dist. Ct., 2d Jud. Dist. (Cnty. of Bernadillo)
ruling issued Jan. 13, 2014).) California's bill, if approved, could make it the sixth
state to allow the practice.
Opponents don't think that's likely to happen, looking at the failure of past efforts
to land similar legislation. "We've beat this bill many times," says Marilyn Golden,
a senior policy analyst with the Disability Rights Education & Defense Fund, who testified
against SB 128. "This is going to be a long fight," she cautions, adding, "We've had
long fights before on the same bill in this Legislature, so we expect to prevail eventually."
California voters rejected an aid-in-dying ballot initiative in 1992, and multiple
legislative efforts collapsed between 1995 and 2007. The bills often failed in committee,
as when, at a Senate Judiciary Committee hearing in 2006, then-Chairman Joe Dunn (D-Santa
Ana) killed a bill two years in the making. "It was one of the most difficult votes
I cast," recalls attorney Dunn, now in private practice. "It is a very, very difficult
question, and one in which both sides of the debate are correct."
He finally decided there weren't sufficient protections in the bill, as written, to
prevent abuses stemming from economic pressures within the health insurance industry.
As more and more states adopted such laws, he feared, insurers would become unable
to resist the potential savings and begin gently encouraging dying patients to end
their lives early. "There can be subtle and sophisticated ways to market that decision
to a patient or his family," Dunn warns.
In 2007 a similar bill passed committee but it couldn't win approval in the full Assembly.
"[Right-to-die proponents] came up and went away," says Katie Short, an Ojai attorney
who is vice president of legal affairs for the Napa-based Life Legal Defense Foundation,
which opposes legalizing aid in dying.
Things seemed different this time around, with SB 128. "Nothing has taken everyone
by storm like this one," says Short.
Still, opposition from Republicans has been strong, some religious leaders consider
the practice immoral, and some disability-rights advocates warn about the potential
for abuse.
"The bill protects doctors and hospitals, not patients," Golden warns. "Its vision
of assisted suicide will operate properly where there are no health care disparities,
and where all families are happy. It presumes everyone is financially secure, has
an equal opportunity to health insurance, and has no one around them working against
their interests. This is not the reality for a vast number of Californians. This is
a bill for the few, not the many."
Last year California Democrats rallied behind the issue, officially adding "death
with dignity" to the party platform. And another key facet of past opposition has
stepped back: the medical establishment. In May the California Medical Association,
which opposed past bills, became the first state medical association to officially
take a neutral position on aid-in-dying legislation.
To Broaddus of Compassion & Choices, the change "represents a monumental shift because
it is a break from the California Medical Association's historic opposition to the
medical practice of aid in dying," she says. "We are seeing an enormous shift in thinking
within the medical community that is helping create a pathway for end-of-life-options
legislation in the state and throughout the nation."
"The fact that CMA has gone neutral on the legislation speaks volumes," says Dunn,
who was CEO of the organization from 2006 to 2009. "That is clearly a huge change
from ten years ago."
Of course, CMA's neutrality was a setback for SB 128 opponents. "We were shocked and
very disappointed by the CMA decision, which is reprehensible and was apparently made
for political reasons," the Disability Rights Education & Defense Fund's Golden said
in an email to California Lawyer. "Fortunately, both the southern and northern California oncologist organizations
have reaffirmed their strong opposition to an assisted suicide bill in any form, because
of the many dangers it would pose, as well as doing harm to the doctor/patient relationship."
After Senator Wolk finished her introduction at the March Health Committee meeting,
the bill's co-sponsor, Sen. Bill Monning (D-Carmel), went on to extol its many safeguards.
Like Oregon's law, the former law professor explained, SB 128 would extend lethal
medication only to terminally ill patients who have less than six months to live?as
confirmed by two physicians. The patient must be of sound mind; must make two verbal
requests at least 15 days apart and sign a written request in the presence of two
witnesses; and is required to be the one to administer the medication. Under the proposed
law, coercion is a felony, while the assisting physicians, pharmacists, and health
care facilities are insulated from criminal liability. The bill would mandate the
collection of data on assisted deaths for the public record, but it guards patient
privacy. Finally, Monning said, SB 128 goes beyond Oregon's law by requiring that
request forms be translated for the patient, if needed.
When the sponsors stepped down, testimony on the bill began. Supporters relied heavily
on Oregon and Washington's experiences to show legalized aid in dying can be safe
and effective, but the bulk of their testimony was based on emotional appeals and
notions of personal freedom. Critics deployed emotional missiles too, but they sought
to undermine confidence in the law through a series of well-honed attacks.
Committee members listened intently as Brittany Maynard's mother, Debbie Ziegler,
spoke in a fragile voice about her daughter. Then Christy O'Donnell, a former lawyer
and Los Angeles police sergeant, described in grim detail how terminal lung cancer
will likely drown her in front of her 20-year-old daughter. Other advocates spoke,
too: A retired Stanford oncologist made the case that the bill would improve end-of-life
care for all Californians by encouraging open communication about the dying process
among doctors, patients, and their families; a clergyman found defense for a "gentle
death" in the words of St. Francis of Assisi.
The straightforward emotional appeal of those arguments gave way to talk of logistical
and ethical hazards when the opposition took its turn. Warren Fong, president of the
Medical Oncology Association of Southern California, questioned the safety of the
oral medication that would be prescribed: Once dispensed, how could anyone be sure
that patients would take it correctly and respond as expected?
If Oregon's official data offers any insight, complications from the medication are
rare: Of 859 patients there who have taken the lethal prescriptions in the nearly
18 years since the law took effect, just 22 regurgitated the medication and 6 regained
consciousness before finally dying.
However, Fong also warned that medication could easily fall into the wrong hands.
In Oregon, he noted, patients have been known to hold on to the prescription for up
to two years, and some never use it. "It's sitting in their medication cabinet, where
it can be stolen, accidently used by someone else, or worse," he warned. "It could
be given to an unwitting patient by a caregiver because he's tired of taking care
of mom or is anxious to get his inheritance."
Oregon data confirms that less than two-thirds of patients in the state who obtained
a lethal prescription there since the law passed have actually used it. The state
has not, however, identified a single instance of misuse.
Fong's concerns are echoed by Washington attorney Margaret K. Dore, who has long worked
in guardianships and probate. "The drugs used for assisted suicide in Oregon and Washington?secobarbital
and pentobarbital (Nembutal)?are water soluble," she told California Lawyer, "such that they can be injected without consent, for example, to a sleeping person."
Others at the hearing pointed out that physicians are notoriously bad at predicting
life expectancy, offering anecdotal evidence of people who'd lived many years?decades
in some instances?beyond the time frame their doctors gave them. When doctors gave
Oregon resident Jeanette Hall six months to a year to live, she asked for aid in dying.
But her doctor resisted repeatedly until she gave up the notion. Fifteen years later,
she's free of cancer and happy to be here. "It's great to be alive," she told a reporter
for The Daily Signal news website. "I wouldn't be here if Dr. Stevens was a different type of doctor that
just kept listening to [me]."
Dr. Aaron Kheriaty is director of the medical ethics program at the UC Irvine School
of Medicine. He testified that the law could result in unequal treatment for people
with mental illnesses. "Assisted suicide is discriminatory," he told the committee,
explaining that under the law he would be forced to intervene to save the life of
a depressed and suicidal patient like Robin Williams, but could assist a patient facing
imminent physical decline, like Brittany Maynard, in taking her own life. Kheriaty
said the two approaches are fundamentally incompatible. "They can't coexist within
medicine and mental health care." His prediction is that restrictions on who is eligible
to receive life-ending medication will be relaxed. Before long, Kheriaty warned, the
legal climate will be just like Belgium and the Netherlands, where the option of assisted
suicide isn't limited to the physically dying.
A related argument used against aid-in-dying legislation is that suicide rates in
Oregon have increased since 2000. Attorney Dore refers to the phenomenon as "suicide
contagion." "It is well known that suicide is contagious," she wrote in a memo on
SB 128 to the Senate Appropriations Committee. "A famous example is Marilyn Monroe.
Her widely reported suicide [in 1962] was followed by 'a spate of suicides.' "
Oregon does have an exceptionally high suicide rate?around 17 per 100,000 people versus
a national average of 13 per 100,000. However, this was the case long before the state's
Death with Dignity Act took effect. Around 1999, shortly after implementation, rates
did climb in Oregon, but they shot up around the country, too. Oregon's trend continually
mirrors the national trend, just at a higher level.
On behalf of the formidable segment of the disability community that has staunchly
opposed end-of-life legislation around the country, policy analyst Golden delivered
a catalogue of concerns about abuse. "Where assisted suicide is legal, some people's
lives will be ended without their consent through mistakes and abuse," she warned.
"For one thing, it's a deadly mix to combine our broken, profit-driven health care
system and assisted suicide, which would instantly become the cheapest treatment."
This might be especially pernicious for California's Latinos and blacks, Golden said,
because they are already disproportionately disadvantaged in health care coverage.
Oregon's population of whites (78 percent) is twice as high as California's. But Oregon's
data shows that 97 percent of patients who die from taking lethal medication there
are white. Forty-six percent have college degrees and 60 percent have private health
insurance.
In Switzerland, where assisted suicide has long been legal, a study published last
year examined concerns that disadvantaged or vulnerable people were more likely to
die this way. The study, published in the International Journal of Epidemiology, found that the practice was "more likely in women and those in situations that may
indicate greater vulnerability such as living alone or being divorced, but also more
common in people with higher education and higher socio-economic position."
Evidence of abuse in assisted-suicide cases is largely anecdotal and often contested,
making it difficult to winnow out the facts. Golden and others say this lack of information
is a major flaw in the current laws. The crucial point, they say, is not what the
data from Oregon and other places shows, but what it doesn't. Golden explained to
the committee, "The data shows no abuses because the system is not set up to find
abuses."
Not all supporters of physician-assisted suicide agree that statutory change is the
best way to make the option available. "California has been around the legislative-attempt
block numerous times," says Kathryn L. Tucker, executive director of the Disability
Rights Legal Center in Los Angeles, which advocates for aid in dying. "Legislation
is unlikely to succeed." For her, SB 128 is too heavy an intrusion into the medical
profession anyway. "A physician who feels very burdened by the statutory scheme may
not want to practice that because it adds to their already very busy day," Tucker
says. But strategic litigation, she believes, could help "move this practice into
the [medical] mainstream."
In February, Tucker and San Francisco pro bono co-counsel Nicholas van Aelstyne of
Beveridge & Diamond filed suit against the state on behalf of three physicians and
three cancer patients. (Brody v. Harris, No. CGC-15-544086 (San Francisco Super. Ct.).) Dan Swangard, a 48-year-old doctor,
is one of these patients. He was diagnosed with a rare cancer in 2013, and though
it's now in remission after successful treatment, Swangard knows there's a strong
chance the disease will roar back. "It's very real for me," he told NPR. "This [aid
in dying] could be my own issue a year from now." Swangard says he isn't sure he would
take lethal medication even if he chose to obtain it, but he wants the option. That's
a big part of why he joined the lawsuit.
Tucker believes "it's an essential civil right to be able to make autonomous decisions
about your own body and your own life. I'm privileged to do the work," she says.
The California case offers the court two theories: first, that the statute criminalizing
assisted suicide (Calif. Penal Code § 401) does not apply to doctors treating terminal
patients. "Growing legal, mental health, and medical professional consensus recognizes
a fundamental difference between suicide and aid in dying," the second amended complaint
states. Although the same argument succeeded in the Baxter v. State suit in Montana, which Tucker worked on, Life Legal Defense's Short notes that a
similar argument failed in Connecticut (Blick v. Office of the Div. of Crim. Justice, 2010 WL 2817256 (Conn. Super. Ct., Hartford J.D.)).
The second argument Tucker presents in Brody is constitutional: that the state's guarantee of privacy extends to this issue, as
a New Mexico court held in the Morris v. Brandenburg case she helped litigate. "The California Supreme Court has observed that 'there
is a body of law evolving that appears to respect a person's choice of how and when
to die.' (People v. Deere, 41 Cal. 3d 353 (1985))," the complaint states. It continues: "This Court is called
upon to clarify the rights of mentally competent, terminally ill patients regarding
just how much suffering they must endure before death arrives, and the intertwined
right of physicians to respect, in the exercise of their professional judgment, the
wishes of [such] patients who request aid in dying."
In another California case filed this spring, Compassion & Choices sued for declaratory
relief from enforcement of section 401 on behalf of Christy O'Donnell, the lung cancer
patient who testified at the March hearing, and two others. (Donorovich-Odonnell v. Harris, No. 37-2015000016404-CU-CR-CTL (San Diego Super. Ct. filed May 15, 2015).) John
Kappos, a Newport Beachbased partner at O'Melveny & Myers, is working with the organization on behalf of
the plaintiffs.
For Life Legal Defense's Short, these efforts are an "invitation for judicial activism,"
adding, "I do wonder how vigorously [Attorney General Harris] will defend the current
law from these challenges because she is a Democrat with obvious political ambitions."
Such a divisive issue belongs in the hands of the Legislature, Short argues.
Jon B. Eisenberg, an Oakland attorney with Horvitz & Levy who sits on the advisory
board for the Northern California chapter of Compassion & Choices, says well-established
legal underpinnings support the right to die, characterized more broadly as the right
to refuse medical treatment. He spent a year working with Michael Schiavo's legal
team in the protracted fight to have his wife, Terri Schiavo, taken off life support
in Florida. Eisenberg points to a 25-year-old case in which the U.S. Supreme Court
placed the right to refuse medical treatment within the Fourteenth Amendment's guarantee
of the right to due process. (Cruzan v. Director, Missouri Department of Public Health, 497 U.S. 261 (1990).) Chief Justice William Rehnquist's majority opinion called
it the right of "bodily integrity"?though others before and after have called it a
right of "personal autonomy." And courts aren't the only authority: "Since Cruzan," Eisenberg says, "every state in the country has adopted legislation regulating
the exercise of the right to refuse medical treatment, including provisions for executing
advance directives."
He counsels advocates, "If you feel you can effectively travel both roads, you should."
When testimony concluded before the Health Committee, supporters of SB 128 lined up
for public comment, wrapping around the hearing room in a yellow band of T-shirts.
One by one they offered brief justifications. Some looked ahead to their own deaths
in the distant future; others who were terminally ill demanded a solution sooner.
Many spoke up in honor of relatives who had died in pain, or chosen starvation or
violent suicide over prolonged misery. Some spoke for dying loved ones, including
a woman who said she and her terminally ill mother had discussed poisoning by oleander
if they could not get life-ending medication.
A contingent of opponents took to the microphone next, airing their fears of abuse,
speaking from personal experience about terminal diagnoses proved wrong, and invoking
religion to stress the value of finding meaning through suffering. "Just to remind
you," one man said, eyeing the senators fiercely, "you're not God."
In the end the committee voted in favor of the bill, 62, moving it forward to the Judiciary Committee. By late May SB 128 had cleared the
Judiciary and Appropriations committees and survived a full Senate vote?the first
bill of its kind to emerge from either house.
But the bill has not fared so well in the Assembly. Last month, it didn't have enough
support to make it out of that chamber's Health Committee. Consequently, Senators
Wolk and Monning and Assemblymember Susan Eggman (D-Stockton) decided to delay the
hearing, saying in a statement, "We are continuing to work with Committee members
to ensure that when the bill is presented, they are comfortable with the measure."
According to the Los Angeles Times, a group of Democratic assembly members, many representing Latino districts, withheld
their support after heavy lobbying from the Catholic Church. Lorena Gonzalez (D-San
Diego), a member of the Health Committee, said in a statement after the bill was withdrawn,
"I'm uncomfortable based on the experiences of my mom who died of terminal illness,
I'm uncomfortable based on the impact this will have on poor people in a health care
system that cuts corners in the name of costs, and I'm uncomfortable with the way
suicide could be viewed across society, not just the terminally ill."
Short, of the Life Legal Defense Foundation, believes that what happened to SB 128
in the Assembly shows that the longer people think about legalizing physician-assisted
suicide, the more doubts they have about it. "People respond from the gut to Brittany
Maynard's story," says Short. "But once the emotion fades away, they start to pay
more attention to the arguments about the dangers [physician-assisted suicide] poses."
Director Tucker of the Disability Rights Legal Center called SB 128 an "outdated approach,
seeking to replicate a measure adopted 21 years ago in Oregon." In her view, litigation
would be more effective than legislation. For example, if the plaintiffs prevail in
Brody, Tucker says, "the same open practice of aid in dying will emerge in California ...
[without] burdensome requirements for collecting and reporting data."
But Broaddus of Compassion & Choices says, "We are not done in the Assembly yet. The
Legislature should have a full, public, and informed debate on the issue." Broaddus
says her organization is also looking at other options, such as a ballot initiative,
and the Donorovich-Odonnell lawsuit pending in San Diego.
Meanwhile, Californians must wait until next year to see how far SB 128 will get.
Vanessa Rancaño is a freelance journalist based in Oakland.
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Donna Mallard
Daily Journal Staff Writer
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