We each deserve the right to die with dignity. Reinstate the End of Life Option Act

A California Superior Court judge’s decision to strike down California’s “End of Life Option Act” is wrong as a matter of law. The California statute provides death with dignity for terminally ill patients. The California Court of Appeal should overturn this decision and failing that, the Legislature should quickly reenact it in a manner that addresses the judge’s concerns.

The act was adopted in a special session of the California Legislature in 2015. It was signed into law by Gov. Jerry Brown in October 2015 and went into effect on June 9, 2016. Under the law, a doctor may provide a terminally ill patient a prescription for life-ending drugs.

Patients can receive these prescriptions only if they are mentally competent and have six months or less to live. To get the prescription, a patient must submit two oral requests – 15 days apart – to the attending physician, and one written request. Under the law, the terminally ill person must be able to self-administer the drugs.

A report of the California Department of Public Health says 191 adults have received prescriptions from 173 physicians for medical aid in dying between the law’s passage and Dec. 31, 2016. Of those, 111 ingested the prescribed drugs and died; 87.4 percent were 60 or older, and 83.8 percent were receiving hospice and/or palliative care.

By all accounts, the law is working exactly as intended: It is giving terminally ill patients the ability to end their lives if they choose. The statistics from the California Department of Health confirm what was expected in that many individuals receive these prescriptions, and are likely comforted by their presence, but choose not to use them. There are no reported instances of abuses under the law or people being pressured to end their lives. Oregon, which has allowed physician-assisted death for more than 20 years, has had the same experience.

But on Tuesday, May 15, Riverside County Superior Court Judge Daniel A. Ottolia said the End of Life Option Act was unconstitutional because it did not fall within the scope of a special legislative session that was called to address health care-related issues.

The leading case in California concerning the scope of the Legislature’s power in special session is Martin v. Riley (1942). There the California Supreme Court said that the Legislature in a special session is confined to the subject matter that it was called to consider. The court, however, said: “But when the Governor has submitted a subject to the Legislature, the designation of that subject opens for legislative consideration matters relating to, germane to and having a natural connection with the subject proper.”

The court emphasized the strong presumption in favor of laws adopted during special sessions and said 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.”

Brown called the special session of the Legislature to consider several issues related to health care in the state. The “End of Life Option Act” obviously relates to health care in California. In fact, earlier Judge Ottolia refused to enjoin the law on the same grounds and declared: “Even though improving the health of Californians might seem far removed from assisted suicide, it is sufficiently related to health care and the efficiency and efficacy of the health care for the court to consider the act to be within the scope of the authorization for the [special] sesson.”

The Court of Appeal should follow exactly that reasoning and reverse Judge Ottolia. Failing that, the California Legislature should reenact this law in a regular session.

I cannot address this topic without thinking of my father. In the spring of 1993, my father was dying of terminal lung cancer. Except when sedated, he was fully conscious and completely rational. I stood next to him as he asked a doctor to add enough morphine to end his life. He cogently explained to the doctor that either he was awake and in great pain or he was drugged into unconsciousness. No one in my family objected to his choice.

The doctor brusquely said, “I can’t do that,” and left the room. My father died four days after making that request. I will never understand what interest the state had in keeping him alive for those few additional days.

Each of us should have the right to die with dignity. The California End of Life Option Act is a crucial safeguard of that right and should be upheld in the courts.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

This story was originally published May 21, 2018 at 12:00 PM with the headline "We each deserve the right to die with dignity. Reinstate the End of Life Option Act."