California was the 5th state to explicitly permit mentally competent terminally ill patients to obtain a prescription from their physician for medication the patient may ingest to achieve a peaceful death, a medical practice known as aid in dying. This option appeals to some patients who find themselves trapped in a protracted dying process, where the cumulative burden of suffering causes them to prefer a swift death instead of enduring yet more suffering before death arrives. California’s law was passed in 2015, during a special session of the legislature focused on health care. Called the “End of Life Option Act” (EOLA), the law became effective on June 9, 2016 and has been implemented since then pursuant to rigorous requirements: patients must have no more than 6 months life expectancy; they must be fully mentally competent; they must be able to self administer the medication; they must make multiple requests, oral and written, separated by a mandatory waiting period, which must be witnessed. Physicians must report all AID prescriptions to the State, which publishes data about the practice annually.
Opponents of aid in dying challenged the statute on various grounds, including alleging that it was invalid as beyond the scope of the special session in which it was enacted.
On May 21, 2018, the Superior Court held the EOLA was invalid on the ground that it was not sufficiently related to the subject matter of the special legislative session in which it was enacted, called by the Governor to address health care related issues. Some commentators have observed that the scope of the legislature’s power to act in special session is to be given great deference, that there is a strong presumption in favor of laws adopted during special sessions, and that “courts are and should of right be reluctant to hold that such action is not embraced in such call, and will not so declare unless the subject manifestly and clearly is not embraced therein” citing the leading California Supreme Court decision on the subject, Martin v. Riley (1942).
The finding that the statutory permission for aid in dying is not related to ‘health care’ is erroneous. Indeed, the Supreme Court of the United States has recognized that prescribing medication for aid in dying is a medical practice. In a case prompted by then US Attorney General Ashcroft’s issuance of a Directive that physicians prescribing medication for aid in dying would be in violation of the federal Controlled Substances Act, the Court held that prescribing medication for aid in dying constitutes a “legitimate medical practice” for purposes of federal controlled substances law. In that case, the State of Oregon and a group of terminally ill Oregonians challenged the authority of the Attorney General to nullify a validly enacted state statute permitting aid in dying by applying the Controlled Substances Act well beyond its intended scope of deterring illicit drug trafficking. In considering the matter, the Court addressed whether a physician prescribing medication for the purpose of aid in dying was acting with a “legitimate medical purpose." The Court concluded that he or she would be doing so, hence the federal Controlled Substances Act could not be applied to punish any physician for such conduct. This precedent offers an additional argument in support of prompt reversal of the ruling by the Riverside Superior court that the EOLA is invalid on the grounds that it does not relate to health care and medical treatment.
The California Attorney General has properly defended the EOLA, and following the May 21 ruling immediately filed a petition for appeal and other relief in the Forth District. In its brief the AG correctly urges that deference is owed the legislature and the EOLA pertains to health care. It argues that California Supreme Court jurisprudence compels such deference. The AG can bolster its argument by bringing to the appellate courts’ attention the United States Supreme Court precedent pertinent to this case.
California’s aid in dying law should be quickly reinstated. Patients dying difficult deaths should have this compassionate option, which a great majority of the public supports and which was made available to them by enactment of the EOLA.
Kathryn L. Tucker, J.D., is the Founder and Executive Director of the End of Life Liberty Project,an advocacy organization dedicated to protecting and expanding the rights of the terminally ill. She has held faculty appointments at Loyola Law School, Los Angeles, the University of Washington, Seattle University, and Lewis & Clark Schools of Law, teaching in the areas of law, medicine, and ethics pertinent to the end of life. Tucker is often involved in representing physicians and patients seeking to expand end of life liberty.
Suggested citation: Kathryn L. Tucker, Aid-in-Dying is Health Care, JURIST - Professional Commentary, Jun. 10, 2018, http://jurist.org/hotline/2018/06/kathryn-tucker-aid-dying.php.
This article was prepared for publication by Kelly Cullen, the JURIST Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org