The Riverside County Superior Court today granted a motion filed by Compassion & Choices on behalf of two terminally ill Californians seeking to intervene in the Ahn v. Hestrin lawsuit. The Court’s order will allow the intervenors to defend against the lawsuit, which seeks to overturn the state’s End of Life Option Act. The law allows mentally capable, terminally ill adults with six months or less to live to have the option to get a doctor’s prescription for medication they can decide to take if their suffering becomes unbearable, so they can die peacefully in their sleep. 

In late May of 2018, a Riverside court temporarily suspended the End of Life Option Act, agreeing with the plaintiffs’ claim that the state legislature violated the state constitution by passing the law during a special session limited to health care. On June 1, 2018, Compassion & Choices filed an appeal and obtained a stay that reinstated the law while it was under appeal.

Terminally ill Compassion & Choices volunteer advocate Andrea Saltzman, Esq.
Photo courtesy of Clayton J. Mitchell Photography.

In November, the appeals court directed the Riverside court to vacate, i.e., nullify, its judgment, ruling the physician plaintiffs didn’t establish legal standing when they filed their lawsuit in 2016 to overturn the End of Life Option Act because the law doesn’t affect them or their patients. But the appeals court decision suggested how the plaintiffs could amend their complaint to establish legal standing and sent the case back to the Riverside court to resolve that issue and other allegations in the lawsuit, including whether the law violates the due process and equal protection guarantees of the U.S. and California constitutions.

In February, the California Supreme Court rejected requests to review the appellate court ruling. 

Today the Riverside court agreed to allow Burbank resident Matt Fairchild, who has incurable cancer, and terminally ill Berkeley resident Andrea Saltzman to intervene in the case because they each have a “direct and immediate interest” in its outcome. The court also denied a motion by Los Altos physician Dr. Catherine Forest, who has written prescriptions for medical aid in dying, to join the case. The defendants in the lawsuit are the California attorney general and Riverside County district attorney.

“Fairchild and Saltzman are both cancer patients,” Riverside court Judge Irma P. Asberry concluded. “Their arguments, positions and interest[s] are unique from that of the Attorney General and their interest[s] will be impaired if intervention is denied … Her [Dr. Forest’s] interest[s] are not unique as those of Fairchild and Saltzman.” 

“I do not want to die and I do not know whether I will ultimately choose to end my life before my cancer ends it,” said Andrea Saltzman, a 72-year-old retired lawyer with Stage 4 non-smokers lung cancer that has spread to her brain and bones, who has previously filed her own amicus briefs in the case. “But I feel validated that the court has recognized my personal stake in this issue: I want to do what I can to ensure that I and others have this option.”

A total of 768 terminally ill Californians received prescriptions for aid-in-dying medication and 485 (63%) of them took the medication between the first day of the law took effect, June 9, 2016, until Dec. 31, 2017, according to the California Department of Public Health annual reports.

“We commend the court for recognizing that Andrea and Matt have a deeply personal, significant stake in this lawsuit,” said Kevin Díaz, chief legal advocacy officer for Compassion & Choices, whose sister organization, Compassion & Choices Action Network, led the campaign to pass the End of Life Option Act. “This case’s outcome could determine if they and other terminally ill Californians have the option to die peacefully — so they can live their final days as fully as possible — without worrying about needless suffering.”

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.

“Andrea and Matt have no interest in changing the central issues of the case,” said John Kappos, a Newport Beach-based partner in the O’Melveny law firm working with Compassion & Choices, and who presented oral argument at today’s hearing. “They just want to have a voice in the legal proceedings that may determine how they live out their final days and whether they are forced to endure unbearable suffering before they pass.”

California is one of nine states — including Colorado, Hawai‘i, Maine, Montana, New Jersey, Oregon, Vermont, and Washington — as well as the District of Columbia, that have authorized medical aid in dying. Collectively, these nine jurisdictions represent more than one out of five Americans (22%) and have 40 years of combined experience successfully implementing this end-of-life care option.

“No defendant has a more real and personal stake in this lawsuit than Andrea and Matt do,” said Jon B. Eisenberg, of Healdsburg (Sonoma County), an expert in appellate law working with Compassion & Choices’ legal team. “It would have been a tragedy if this case was resolved without the input of a single person seeking to preserve their own end-of-life care options.”

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