Metropolitan News-Enterprise


Friday, October 30, 2015


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State Constitution Provides No ‘Right to Die’—C.A.


From Staff and Wire Service Reports


The California Constitution does not permit a physician to prescribe lethal doses of drugs for a patient who wishes to end his or her life, the Fourth District Court of Appeal ruled yesterday.

Div. One rejected a lawsuit by three terminally ill patients, as well as a physician who believes in compassionate aid to terminally ill patients who wish to die. Lead plaintiff Christy O’Donnell of Santa Clarita suffers from Stage IV cancer of the left lung and was given less than six months to live in May when the lawsuit was filed.

The plaintiffs argued that the state’s ban on assisting suicide does not apply to a doctor who writes a prescription for “a lethal dose of drugs a patient may or may not have filled or take.” If the ban does apply, they further argued, it violates the state Constitution’s guarantee of privacy.

New Law Considered

The appeals court considered the End of Life Option Act recently signed into law by Gov. Jerry Brown, which it acknowledged was unable to help the plaintiff patients by the time it takes effect. But it noted that even the plaintiffs’ lawyers acknowledged that the act is not currently law.

The act has not taken effect because it was approved at a special session, and the session has not adjourned. Special session laws take effect 91 days after the session adjourns, but in this case, opponents are seeking a referendum, and if they obtain enough signatures, the law could not take effect prior to a statewide vote next year.

Penal Code §401 provides:

“Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.”

San Diego Superior Court Judge Gregory W. Pollack rejected the plaintiffs’ contentions that the 130-year-old statute does not apply, or that it deprives them of constitutional autonomy over their own bodies, and the Court of Appeal agreed.

“We believe prescribing a lethal dose of drugs to a terminally ill patient with the knowledge the patient may use it to end his or her life goes beyond the mere giving of advice and encouragement and falls under the category of direct aiding and abetting,” Justice Alex McDonald wrote. He noted that the Legislature had considered aid-in-dying legislation many times before it passed the recent bill, something he said it would not have done if physician-aided suicide were already legal.

End of Life Act

The jurist also noted that, unlike the End of Life Option Act, the mandatory injunction sought by the plaintiffs would lack “rigorous procedures and safeguards to protect against abuse.” He rejected the plaintiffs’ offer to comply with the new procedures as if the act were already law, saying it was “not this court’s province to monitor plaintiffs’ postjudgment conduct” and that voluntary compliance with the safeguards would not protect doctors from prosecution as long as §401 remains on the books.

“We have great compassion for plaintiffs, but we conclude their statutory and constitutional arguments lack merit,” the justice wrote. “We agree with defendants that physician aid-in-dying, and attendant procedures and safeguards against abuse, are matters for the Legislature.”

John Kappos, an attorney for the patients, said they are considering all options, including an appeal to the California Supreme Court. But that court Wednesday denied the plaintiffs’ requests that it take up the case immediately, either by transferring the case from the Fourth District or by granting review of the Fourth District’s earlier summary denial of the plaintiffs’ request for an emergency writ.

The case is Donorovich-O’Donnell v. Harris, 15 S.O.S. 5200.  


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