JURIST Guest Columnist Kathryn L. Tucker Executive Director of End of Life Liberty Project (ELLP) discusses the End of Life Option Act adopted by California…

California adopted the End of Life Option Act (EOLOA) in October 2015, establishing statutory permission for aid in dying (AID), the medical practice in which a physician provides a mentally competent terminally ill patient with a prescription for medication that the patient may ingest to achieve a peaceful death. California was the fourth state to adopt such a statute, following Oregon, Washington and Vermont. Recently, Colorado and the District of Columbia adopted similar measures. All impose a number of burdens and restrictions on accessing AID.

The first state to vote on a measure intended to empower terminally ill patients with physician-assisted dying was Washington in 1991. California unsuccessfully tried a similar measure the next year. Opponents argued that there were insufficient “safeguards”. Voters were swayed by this concern, despite strong public support for AID. Learning from these attempts, Oregonians embraced a ‘throw in the kitchen sink’ approach and put forth a measure thick with “safeguards.” In 1994 Oregon voters adopted the first AID statute in the United States. Implementation of Oregon’s law was delayed for several years, until a lawsuit challenging its validity was resolved late in 1997. Beginning in 1998 Oregon became the first state with an open practice of AID.

In 2015 California legislators adopted an Oregon-style AID measure, though slightly more restrictive. While in some ways the EOLOA can be considered a step forward, in others it represents a step backwards. The “step forward” perspective recognizes that California is the largest, most populous and most demographically diverse state to adopt an AID law. The “step backward” can be seen in the fact the EOLOA imposes all of the burdens and limitations as does the original Oregon Measure and goes beyond in imposing both an additional restriction and a sunset provision.

Oregon’s nearly 20 years experience with AID has been closely watched and studied. The State annually reports on implementation of the program, and a plethora of articles examining and discussing the data have been published. The consensus has emerged that availability of AID improves end-of-life care and presents no risk.

Accordingly, it would be appropriate for the practice to become more normalized within the practice of medicine, with less government oversight and regulation. The regulation of the practice of medicine is not commonly governed by statute; rather it is primarily governed by professional practice standards as they evolve in practice; in other words—by standard of care. However, the EOLOA is “Oregon Plus”: imposing all of the intrusive, burdensome government involvement into medical practice that the Oregon statute requires and adding some additional burden and limitation. The obstruction faced by patients is apparent in accounts of families of patients who have attempted to run the gauntlet of requirements in order for the dying patient to achieve a more peaceful death through aid in dying.

Prior to enactment of the EOLOA, two cases had been filed in California seeking clarification of the reach of California’s statute that makes a crime of “assisting” a “suicide.” Brody v. Harris, Donorovich-O’Donnell v. Harris. Plaintiffs, patients and physicians, argued that this law should not apply to physicians providing AID because the choice of a dying patient for a peaceful death is not “suicide”; alternatively, plaintiffs argued that the choice at issue deserved protection under California’s constitutional guarantees of privacy and equal protection. Adoption of the EOLOA mooted the statutory scope claim, as it made clear that physicians who provide aid in dying cannot be prosecuted for ‘assisted suicide.’

Neither of these cases reached the California Supreme Court. Hence the question of whether state constitutional protection extends to the choice of a dying patient for a more peaceful death through AID has not been resolved. It is this commentator’s view that the Donorovich court applied law incorrectly and its opinion ought not be persuasive to the California Supreme Court.

California courts have repeatedly held that the scope of California’s constitutional right of personal autonomy privacy is greater than that protected by the federal Constitution. California’s privacy jurisprudence has often been ahead of that of the SCOTUS. California’s Supreme Court recognized “[t]he fundamental right of [a] woman to choose whether to bear children” in invalidating its ban on abortion four years before the SCOTUS recognized this right in Roe v. Wade.

Jurisprudence concerning reproductive freedom may be especially relevant to AID. California decisions have held the right of a woman to control her body and to choose to terminate a previable pregnancy as “clearly among the most intimate and fundamental of all constitutional rights.” The right of a woman to control her body has been grounded in the right of privacy. The decision of a dying patient about how much suffering to endure prior to death is of a similar profoundly personal nature, concerning one’s own body, medical treatment, and life course. Because the only life at issue in AID is that of the dying patient, the greatest complexity present in the abortion context—the potential life of the fetus—is absent. Respecting this decision does not result in a reality where doing so ends a potential life with no voice in the decision. Principles that compel respect for a woman’s decision to control her body through abortion apply with equal force to the decision of an individual regarding how much suffering to endure in the final throes of terminal illness, and hence whether to choose AID.

Under this approach, the California Supreme Court ought find a privacy or equal protection interest in choosing AID, and hold legislation constraining exercise of this choice to the standard articulated in American Academy of Pediatrics. The State would be required to prove that it has a compelling interest at stake, that it achieves its interest in the least intrusive way, and that the restrictions are narrowly drawn to impinge upon the constitutionally protected area no more than is necessary. It is unlikely that several of the EOLOA provisions could meet this exacting test, including the fifteen-day waiting period. The state might argue that it has an interest in ensuring that a patient’s choice of AID is carefully considered and enduring, and that this interest is served by the waiting period. In the reproductive rights arena at the federal level waiting periods of much shorter duration have been allowed—most commonly twenty-four hours. And, notably, a medical emergency exception to mandatory waiting periods are included, which the EOLOA lacks.

In Planned Parenthood v. Casey, the court upheld a state’s twenty-four hour abortion waiting period stating that “only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” The court stated that an undue burden exists if “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Court elaborated on the “substantial obstacle” test, stating “the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”

The fact that the statute contained an emergency exception to the waiting period was significant, as was absence of findings that a twenty-four hour waiting period created “appreciable health risks.” The EOLOA’s failure to include an emergency exception renders it vulnerable, and certainly imposing a wait period causes the patient harm, as additional suffering must be endured or, even worse, sometimes the patient dies exactly the sort of death hoped to be avoided during the long waiting period.

A state might assert an interest in ensuring that a patient choosing AID is not acting impulsively and that this interest is served by a waiting period —though why, specifically, the state has an interest in this is unclear. Even if the state establishes an interest, it could be served by a much shorter period. Patients choosing aid in dying do so because they find themselves in an unbearable dying process, where the cumulative burden of suffering imposed by their end stage terminal illness is overwhelming. Forcing them to suffer longer, and possibly be forever denied the right to access aid in dying, seems unjustifiable.

If the California Supreme Court reviews restrictions imposed by the EOLOA under a strict scrutiny standard, its jurisprudential history suggests it would almost certainly invalidate a fifteen-day waiting period, and likely other of the EOLOA’s burdensome restrictions. Under the strict scrutiny standard laid out in Roe v. Wade, prior to the undue burden standard expressed in Casey, the court recognized only two state interests as sufficiently compelling to justify governmental restrictions on abortion: the state’s interests “in preserving and protecting the health of the pregnant woman” and “in protecting the potentiality of human life.”[8] Neither of these sorts of interests are addressed by the restrictions on AID. There is no “health” to protect, as terminal illness by definition destroys health, and there is no potential life interest at stake. Under a strict scrutiny standard, AID regulations would not survive. Even if the more permissive undue burden analysis were to be applied, the fifteen-day waiting period is likely to fail.

Other elements of the EOLOA may not survive scrutiny: requiring patients to make a written request in addition to the two oral requests, and that they see a consulting physician to confirm diagnosis, prognosis, and competence, delay access to AID. Delays always force additional unwanted suffering and sometimes prevent patients from access entirely, given the progressive nature of their illnesses.

The restrictions imposed on AID by the EOLOA will likely be challenged and ultimately examined by the California Supreme Court, which ought find this choice to be protected by privacy and/or equal protection guarantees under the California constitution, and that various restrictions contained in the EOLOA do not survive constitutional scrutiny. Those who believe it is the individual who ought be vested with autonomy to make their own informed decisions about profoundly personal matters involving their own body, life course and medical treatment will applaud such an outcome.

Kathryn L. Tucker, JD, is Executive Director of the End of Life Liberty Project (ELLP), which she founded during her tenure as Executive Director of the Disability Rights Legal Center, the nation’s oldest disability rights advocacy organization. She has held faculty appointments at Loyola, the University of Washington, Seattle University and Lewis & Clark Schools of Law, teaching in the areas of law, medicine and ethics, with a focus on the end of life. Tucker engages multidimensional advocacy to protect and expand the rights of terminally ill patients nationwide.

Suggested citation: Kathryn L. Tucker, End of Life Liberty in CA, JURIST – Professional Commentary, Feb. 21, 2017, http://jurist.org/professional/2016/12/kathryn-tucker-end-of-life-liberty-in-california.php.