Matthew Fairchild a 48-year-old, retired Army staff sergeant in Burbank with terminal melanoma who supports the End of Life Option Act.

A Riverside Superior Court rejected a motion filed by Compassion & Choices on behalf of a physician and two terminally ill adults urging the judge to “vacate” (i.e., cancel) his judgment last week invalidating the End of Life Option Act. However, the court judge, Daniel A. Ottolia, scheduled a hearing on June 29 to consider a separate motion by California Attorney General Xavier Becerra to vacate the judgment.

Similar to laws in six other states and Washington, D.C., the California law gives mentally capable, terminally ill adults with six months or less to live the option to request prescription medication they can decide to take to end unbearable suffering and die peacefully in their sleep.

The attorney general’s motion asks the court to vacate the judgment because it: ”…purports to enjoin the ‘State of California’ even though there are no allegations in Plaintiffs’ complaint concerning the ‘State of California’ as a subject of injunctive relief.” The motion also asks the court to vacate the judgment because “the Department of Public Health and the Attorney General of the State of California were deprived of their right to file objections to the Proposed Judgment prepared by Plaintiffs in this case before the judgment was entered.”

“We are deeply disappointed that the court ruled against us, but we thank Attorney General Becerra for defending the law,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices, whose sister organization, Compassion & Choices Action Network, led the campaign to pass the End of Life Option Act. “But the one month delay until the hearing is unacceptable because in the meantime the law is not in effect and terminally ill Californians now are left without the option of medical aid in dying to peacefully end unbearable suffering.”

On May 15, Judge Ottolia granted plaintiffs’ motion in the case, Ahn vs. Hestrin — Case RIC1607135, to invalidate the law because he claimed the legislature violated the state constitution by passing it during a special session limited to health care issues. The governor’s proclamation convened the Legislature for an extraordinary session “[t]o consider and act upon legislation necessary to enact permanent and sustainable funding from a new managed care organization tax and/or alternative fund sources” and “to consider and act upon legislation necessary to . . . [i]mprove the efficiency and efficacy of the health care system, reduce the cost of providing health care services, and improve the health of Californians.”

Judge Ottolia gave Attorney General Xavier Becerra five days to appeal the ruling, and the attorney general did so on May 21. On May 23, the 4th District Circuit of Appeal denied a separate motion by the attorney general for a “stay” to suspend the ruling, but ordered the plaintiffs to show cause why the appellate court should not overturn the ruling in 25 days. Despite the appellate court’s denial of the stay, Judge Ottolia’s original ruling didn’t actually invalidate the law because he had not yet issued a judgment giving effect to his decision reflected in his order last week.

“The Court’s ruling was based on a narrow and limited reading of the proclamation, without any consideration of the full scope of the subject matter the governor’s proclamation opened up to the legislature,” said John C. Kappos, a partner in the O’Melveny working with Compassion & Choices, which filed an amicus brief earlier in the case. “In a vote separate from the vote approving the End of Life Option Act, the Assembly specifically rejected the argument that Plaintiffs make in their complaint and found that the law pertained to health care.”

The three motion petitioners are:

1. Matthew Fairchild a 48-year-old, retired Army staff sergeant in Burbank with terminal melanoma that has spread to his bones, lungs and brain who has not received a prognosis of six months or less to live, but wants the option of medical aid in dying when he does.

“I am devastated to learn that this Court has made a ruling that will interfere with my ability to receive a prescription from my doctor for aid-in-dying medication when I reach a diagnosis that I have no more than six months to live and when my suffering becomes unbearable,” said Fairchild in his petition to the court. “This ruling will likely mean that I have no option when my suffering becomes intolerable and that I will have to endure a needlessly agonizing death.”

1. Joan Nelson, an 82-year-old resident of Marin County with a rare terminal cancer called leiomyosarcoma, who requested and received a prescription for medical aid in dying before the judgment invalidating the law, but now fears the legal ramifications of actually self-administering her medication if and when her suffering becomes too great.

“…I am very troubled to learn that this Court has made a ruling that could interfere with my ability to use my aid-in-dying medication when my suffering becomes unbearable’” said Nelson in her petition to the court.  “This ruling leaves me with uncertainty about whether I can legally use my aid-in-dying medication and whether my passing will be considered a ‘suicide,’ rather than death from leiomyosarcoma as it should be considered.”

1. Dr. Catherine Sonquist Forest, a clinical associate professor of family medicine at University of California at San Francisco Natividad in Salinas, who has been actively involved in the care of over a dozen patients who have pursued medication under the End of Life Option Act.  

“The recent decision that the End of Life Option Act was enacted unconstitutionally has left me, my colleagues and patients reeling as we try to navigate end-of-life care,” said Dr. Forest in her petition to the court. “The resulting confusion has compounded my patients’ suffering.”

“For Matt Fairchild and Joan Nelson, the outcome of this action could determine whether they die on their own terms, or are deprived of autonomy and left to suffer unnecessarily in their last days,” said Díaz. “In the absence of the protections afforded by the End of Life Option Act, the state could make a felony charge against any physician like Dr. Forest who provides patients with medical aid in dying.”

Last June, Compassion & Choices released a report estimating that 504 Californians have received prescriptions for medical aid in dying since it took effect on June 9, 2016. Last July, the California Department of Public Health released a report showing 191 terminally ill Californians received prescriptions from 173 doctors for aid-in-dying medication during the nearly seven month period from June 9, 2016 until Dec. 31, 2016; 111 of those individuals (58%) decided to self-ingest the medication.

Polling shows 76 percent of Californians across the political and demographic spectrum support medical aid in dying. This majority support includes 82 percent of Democrats, 79 percent of independents, 67 percent of Republicans, 75 percent of whites, Latinos and Asian Americans, and 52 percent of African Americans.

California is one of seven states — including Colorado, Montana, Oregon, Vermont, Washington, and Hawai‘i — as well as the District of Columbia, that have authorized medical aid in dying. Collectively, these eight jurisdictions represent nearly one out of five Americans (19%) and have 40 years of combined experience safely using this end-of-life care option.

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