A recently broadened California law permitting assisted suicide poses a unique danger to vulnerable populations. California, the most populous state in the nation, is one of 7 jurisdictions[1] in the United States to authorize the practice of physician-assisted suicide.

 

Looking back to the controversy that spurred the initial 2015 passage in California, several predictable tactics were used to sell the legislation. They included: creating a supposed need for a broad law based on one personal and moving account; that the public ought to feel safe as the law includes so-called safeguards such as the law would protect the vulnerable; there would be no financial pressure to utilize the law; and, the law would only apply to those who requested it.

 

The final point that the law would only apply to those who requested it, stands on particularly shaky ground.  Due to the nature of the way that the California constitution has been interpreted, the state could end up in a situation where people who never asked to die, can have someone else obtain the drugs and end their life via substituted judgement.

 

Looking back, California’s law was carried along by a wave of sympathy for Brittany Maynard, a vibrant 29 year-old woman with an aggressive form of brain cancer. She emotionally advocated for passage of an assisted dying law.  She ultimately moved to Oregon, where it had long been legal to have a physician prescribe a lethal dose of barbiturates to end her life, and died on November 1, 2014.

 

The California legislature, in a 2015 special session called after the legislative year had closed, passed the “End of Life Option Act”, which took effect on June 9, 2016. The law was temporarily enjoined from May 25 to June 15, 2018, based on a challenge that it had been improperly passed during a special session.

 

The California legislature revisited the issue during its current 2018 regular session.  Governor Brown signed into law AB-282 which amends the California penal code to “prohibit a person whose actions are compliant with the End of Life Option Act from being prosecuted for deliberately aiding, advising, or encouraging suicide.”[2]  This law is an expansion over the previous measure, granting immunity to all people, not only physicians who assist in a suicide, so long as the so-called safeguards of the 2015 law are adhered to.

 

The End of Life Option Act contains essentially the same language that currently governs Oregon and the bulk of the other states that legalized physician assisted suicide.[3] The language, developed initially for Oregon, purports to “safeguard” the practice of physician-prescribed suicide by restricting it to the terminally ill and those with the capacity to make medical decisions.

 

The so-called safeguards have been widely criticized and proven to be unenforceable in many cases. Oregon’s 20 years of experience under a substantially similar law has witnessed numerous abuses ranging from dementia patients receiving lethal drugs, to insurance companies steering costly patients to cheap lethal prescriptions.[4]

 

Financial concerns, seen in other states with legal assisted suicide, have also begun to surface in California. Medical insurance companies are permitted to pay for the lethal drugs, which are relatively cheap. According to a May 2017 article in the Washington Times by Bradford Richardson titled, “Insurance companies denied treatment to patients, offered to pay for assisted suicide, doctor claims,” Californians wanting treatment are met with the reminder that they have the option to die sooner.  Barbara Wagner was another high-profile victim of state insurance steering in Oregon.[5]  The Disability Rights Education & Defense Fund provides a fuller discussion on the inadequacies of the safeguards in a piece called “Key Objections to the Legalization of Assisted Suicide”.

 

Despite the well-founded concerns of those who feel that the safeguards are inadequate, there is an even bigger concern that California, due to the way its constitution has been interpreted, could be one court case away from permitting surrogates to request lethal drugs for people who never asked to die.

 

Several state courts have ruled, in the words of the Washington Supreme Court, that "An incompetent's right to refuse treatment should be equal to a competent's right to do so."[6]  They have held that constitutional equal protection guarantees require that guardians must be permitted to "substitute their judgment" for the unknown preference of the incompetent patient, and thus be able to opt for her or his death.  

 

In addition to Washington State and California, the District of Columbia, which also has legalized assisted-suicide, has adopted a legal standard allowing proxy judgement. Even in states where assisted suicide is not legal courts have ruled similarly, allowing surrogates to substitute their judgement in place of an incompetent patient.[7]

 

In California, in order for a law to be constitutional, the law must permit guardians to exercise the right "on behalf of" incompetent persons he or she is in charge of. Conservatorship of Valerie N.[8] stated that conservators must be able to consent to sterilization procedures for conservatees... to “seek to protect and implement the individual's personal rights and integrity.”[9]

 

In another California case In re Drabick,[10] the court held that since competent individuals can legally reject life-saving treatment, a conservator (or guardian) must be able to direct that his incompetent charge be allowed to die from discontinuation of food and fluids.  The court rejected an argument that the state's interest in protecting William Drabick from being non-voluntarily allowed to die justified preventing his conservator from directing that his food and fluids be stopped.

 

The conclusion is that incompetent individuals cannot be denied either sterilization or death they would have been able to choose were they competent on the basis that, being incompetent, they are not in fact seeking it.  Rather, California constitutional grounds compel allowing a third party to make the choice for them in their place. 

 

It deserves noting that this is not a "slippery slope" type argument.  The "slippery slope" argument normally makes prediction about what society is likely to do if certain barriers are crossed.  California already could not "deny" this same right to an incompetent person who had never asked for it. Rather, a third party would have to be entitled to choose directly to cause the person's death, purportedly on his or her behalf.[11]

 

Under these conditions, California’s assisted suicide law is among the most potentially dangerous in the U.S.

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[1] States that have legalized physician assisted suicide include: California, Colorado, Hawaii, Oregon, Vermont, Washington as well as D.C.  Note: The state of Montana Supreme Court declined to find a constitutional right to assisted suicide, but found that doctors could use the patient’s consent as a defense if brought to trial. Baxter v. State, 224 P.3d 1211, 2009 M.T. 449, 354 Mont. 234 (2009)

 

[2]  http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB282

 

[3] ABX2-15 (AB-15) https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520162AB15

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[4]  “A Primer on Assisted Suicide Laws”, Patients Rights Action Fund and Disability Rights Education & Defense Fund    https://patientsrightsaction.org/wp-content/uploads/2017/07/Final-Primer.pdf (Accessed October 11,2018)

 

[5] https://www.washingtontimes.com/news/2017/may/31/insurance-companies-denied-treatment-to-patients-o/

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[6] In re Grant, 109 Wash. 2d 545, 747 P.2d 445, 449 (1987), modified, 757 P.2d 534 (1988).

 

[7] Arizona, Connecticut, Delaware, Florida, Georgia, Indiana, Iowa, Louisiana, Massachusetts, Minnesota, New Jersey, Ohio, and Wisconsin.

 

[8] Id. 707 P.2d 760, 776 (Cal. 1985)

 

[9] Id. at 776.

 

[10] 200 Cal. App. 3d 185, 245 Cal. Rptr. 840.

 

[11] Among those affected by this conclusion would be minor children, whose parents or guardians would thus be empowered to authorize giving them lethal prescriptions.

               In reaction to cases of parentally authorized denial of life-saving medical treatment to children born with disabilities, such as the Bloomington, Indiana baby with Down Syndrome, In re Infant Doe, No. GU 8204-004A (Monroe County Cir. Ct. Apr. 14, 1982), petition for writ of mandamus and prohibition denied sub nom. State ex rel Infant Doe v. Monroe Circuit Court, No. 482 S 140 (Ind. Apr. 14, 1982), appeal dismissed sub nom. In re Infant Doe, No. 1-782A 157 (Ind. Ct. App. Feb. 3, 1983), cert. denied 464 U.S. 961 (1938), reprinted in 2 Issues in L. & Med. 77 (2986), Congress acted.  As part of the Child Abuse Amendments of 1984, 98 Stat. 1749 (1984), it sought to ensure that "disabled infants with life-threatening conditions" would not be the subject of "withholding of medically indicated treatment,"  42 U.S.C.A. § 5106a(b)(10)(1995), a term it defined with considerable precision, 42 U.S.C.A. § 5106g(10) (1995).  However, Congress merely made it a requirement that state child abuse and neglect agencies enforce this provision as a condition of receiving federal funding.  42 U.S.C.A. § 5106a(a) & (b) (1995).  Therefore, a state court interpretation of the state's constitution as mandating that incompetents, including minor children, have equal access to lethal prescriptions as competent individuals would not be overruled by the federal law.  The only consequence of such a state court holding would be to make the state ineligible for the particular federal child neglect and abuse funds governed by the federal provisions.