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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

California Doctors Can’t Yet Assist in Dying

RIVERSIDE, Calif. (CN) - A California appeals court upheld a state law barring doctors from prescribing lethal medication to terminally ill patients, ruling that doctors must wait until a newly signed assisted death bill takes efffect.

The Fourth Appellate District panel on Thursday denied an appeal brought by a group of terminally ill women asking for their doctor, co-plaintiff Lynette Carol Cederquist, to be protected from criminal prosecution for prescribing lethal drugs. The panel ruled that the law prohibiting individuals, including physicians, from assisting suicide attempts is constitutional and changing it is a matter for state lawmakers.

"Setting aside personal views and having found no legal support for plaintiffs' position, we agree with the Attorney General that the controversial issue of physician aid-in-dying is for the Legislature," Judge Alex McDonald wrote for the three-judge panel.

The appeals court agreed that plaintiffs' case was not moot despite Gov. Jerry Brown's recent signing of the End of Life Option Act, which when enacted makes California the fifth state to allow terminally ill patients access to lethal medication. The panel acknowledged a current referendum effort against the bill and cautioned that allowing Cederquist to provide plaintiffs the medications before the bill takes effect could interrupt the legislative process.

"Dr. Cederquist's voluntary compliance with a measure that is not yet effective obviously does not protect her from potential prosecution under [Penal Code] section 401," McDonald ruled. "Also, we may not reasonably presume that if we ruled in plaintiffs' favor the Legislature would immediately make AB 15 effective."

The lawsuit was filed in San Diego County Superior Court in May by three women "who desire the option of a peaceful death without suffering," including Christy Donorovich-O'Donnell who has advanced lung cancer that has metastasized to her brain, liver, spine and rib.

In their appeal the women argued that under current laws, a physician prescribing lethal medication should be protected because the physician can't be certain that the patient will actually have the prescription filled and take the drugs. Plaintiffs also contended that section 401 contains "latently ambiguous" language and that the Legislature never meant to criminalize doctors assisting suicide.

McDonald disagreed, ruling that the language of section 401 is clear and pointed to various failed attempts by the Legislature to legalize aid-in-dying laws, dating back to 1995.

"These multiple attempts and the recently enacted End of Life Option Act demonstrate the Legislature's acknowledgement that section 401 currently criminalizes the furnishing of the means of suicide," McDonald ruled.

Currently four states have laws or court orders allowing aid in dying, including Oregon, Washington, Vermont and Montana. If California's referendum effort is successful and collects the necessary 365,000 signatures, voters will decide on the End of Life Option Act in November 2016.

A recent statewide poll found 69 percent of California voters support the bill, including 60 percent of Catholic voters.

The women's attorney John Kappos, with O'Melveny & Myers in Newport Beach, California, told Courthouse News his clients would continue their effort to decriminalize suicide assistance by doctors.

"We are exploring all legal possibilities to get a California court to authorize medical aid in dying for Christy O'Donnell before it is too late," Kappos said. "The unfortunate reality is that despite Gov. Brown's recent signing of the End of Life Option Act, the law is unlikely to take effect in time to benefit Christy and other terminally ill adults with only months, weeks or days left to live."

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