Compassion & Choices Makes Headway in the Courts

Our impactful Legal Advocacy team’s latest cases span three states: Oregon, California and Massachusetts.
November 18, 2021

Dr. Roger Kligler

Residency Requirement in Oregon Law Challenged
In late October, Compassion & Choices filed a federal lawsuit, Gideonse v. Brown, et al., on behalf of Oregon physician Dr. Nick Gideonse, a family practice and end-of-life care doctor and associate professor of family medicine at Oregon Health & Science University School of Medicine. The suit seeks to ensure that the residency requirement in the current Oregon medical aid-in-dying law does not unfairly prevent out-of-state patients from seeking medical aid in dying.   

Dr. Gideonse treats patients from both Oregon and Washington. While Washington also has a medical aid-in-dying law, the Oregon residency requirement forces Dr. Gideonse to disrupt the continuum of care for his nonresident patients who want this option. Currently, he must attempt to refer such patients to another provider in Washington who will agree to support the patient’s wishes for medical aid in dying. Said Gideonse, “The Oregon residency requirement is both discriminatory and profoundly unfair to dying patients at the most critical time of their life.”

Case Dismissed in California
With the passage of the new California End of Life Option Act just last month, the court has dismissed the Ahn, et al. v Hestrin legal action that claimed the Legislature violated the state constitution by passing the aid-in-dying law during a special session on healthcare. Given that the new law was passed through the standard legislative process in California, the plaintiffs’ argument is now moot. Our continued vigilance helped protect the practice of medical aid in dying in California for many years as we fought the attempts by plaintiffs to deny this important end-of-life option. 

Instrumental in this victory were our pro bono litigation team, including John Kappos, Bo Moon, Jason Orr, Mark Hayden and Meng Xu from the firm O’Melveny, and Jon Eisenberg from the Law Office of Jon Eisenberg; as well as dedicated physicians and brave terminally ill Californians like Dr. Catherine Sonquist Forest, Andrea Saltzman, Joan Nelson and Matt Fairchild. Said Fairchild, a Catholic, 51-year-old retired Army staff sergeant from Burbank who takes 26 medications to manage his symptoms from terminal melanoma that has spread to his bones, lungs and brain: “I am truly grateful to the appeals court for this ruling that ensures terminally ill Californians like me no longer will have to worry about if they will have this peaceful dying option when their time comes. Thank God that the California attorney general’s office and Compassion & Choices relentlessly fought to protect this compassionate law.” “We also recognize the efforts of the California Attorney General Rob Bonta, who worked to defend the law from this challenge. 

Massachusetts Suit Advanced to State Supreme Judicial Court
We also have made progress on a case we filed in 2016 on behalf of Dr. Roger Kligler and Dr. Alan Steinbach. Dr. Kligler is a Massachusetts physician who is battling stage 4 cancer. In the case, Kligler, et al. v. Healey, et al., we are seeking a judicial declaration that medical aid in dying is not criminal in Massachusetts because there is no criminal statute barring the practice, and if it is prohibited under common law, the prosecution of any physician providing medical aid in dying should be found unconstitutional. Such a declaration would allow Dr. Kligler and other terminally ill patients to end their suffering on their terms. In the initial ruling, five of the six counts were dismissed. 

After a ruling at the trial court we appealed, and our case was subsequently sent directly to the Supreme Judicial Court of Massachusetts — a positive development, as it eliminates the considerable time it would take to move through the appellate court. This work would not have been possible without key members of our legal team: John Kappos, Bo Moon and Meng Xu of O’Melveny; and Jonathan Albano and Nathaniel Bruhn of Morgan, Lewis & Bockius LLP. Oral arguments are anticipated this spring.

Amicus Brief Filed in California Death Doula Case
On November, 19, we filed an amicus brief in support of Plaintiffs in Full Circle Living & Dying v. Sanchez, a lawsuit arguing that the California Cemetery and Funeral Bureau’s attempt to regulate death doulas as if they were funeral directors violates their constitutionally protected free speech and due process rights. Our amicus brief focuses on the important role death doulas play in furthering patient-directed care at the end of life and ensuring that all of a dying individual’s needs are met, not just their medical needs. In addition, we argued that dying individuals and their families should have access to and benefit from the information death doulas provide about end-of-life and after-death care options. 

Plaintiffs in the case are death doulas at Full Circle Living and Dying, a small nonprofit offering death doula services in Nevada County, California, and individuals interested in death doula services and at-home funerals. Plaintiffs filed suit after the Bureau ordered in November 2019 that Full Circle stop offering and advertising its services until the doulas become licensed funeral directors and they obtain a licensed funeral home that is suitable for the storage and embalming of human remains. ​​Full Circle does not want to become a licensed-funeral home, does not need a physical location for its services (and does not offer embalming), and could not afford a qualifying physical location on its small non-profit budget. Furthermore, the testing required to become a licensed funeral director is on topics wholly unrelated to the services provided by death doulas. 

Learn more about Compassion & Choices’ work in the courts on our Legal Advocacy page.

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