Group Files Motion to Intervene & Oppose Federal Suit to Invalidate CA Medical Aid-in-Dying Law

May 19, 2022

Warns Hundreds of Terminally Ill Californians May Suffer Needlessly if Court Voids Law

A terminally ill man, two physicians, and the advocacy group that sponsored California’s recently amended medical aid-in-dying law, Compassion & Choices Action Network, Wednesday, filed a motion to intervene and oppose a federal lawsuit seeking to invalidate the law. The intervenors are represented by Compassion & Choices, the sister organization of Compassion & Choices Action Network, and the O’Melveny law firm.

The intervenors warn hundreds of terminally ill Californians could die with needless suffering if the court voids the law. In fact, 2,858 terminally ill Californians have received prescriptions and 1,816 of these individuals (63.5%) took the medication since the End of Life Option Act took effect on June 9, 2016-Dec. 31, 2020, according to a 2020 report by the California Department of Public Health.

The plaintiffs are requesting a preliminary injunction to suspend three provisions of the revised law, Senate Bill 380, that would impede terminally ill Californians from accessing the option of medical aid in dying while the lawsuit is pending. U.S. District Court Judge Fernando L. Aenlle-Rocha is scheduled to hear arguments on the plaintiff’s motion for a preliminary injunction in the case, Christian Medical & Dental Associations. et al. v. Rob Bonta, et al. on May 27, 2022.

The plaintiffs in the lawsuit erroneously claim the 2021 amendment to California’s 2015 End of Life Option Act, Senate Bill 380, forces them to participate in the practice of medical aid in dying and infringes upon their First Amendment rights of free exercise and free speech, and their Fourteenth Amendment rights of due process and equal protection. California is one of 10 states, along with Washington, D.C., representing more than one out of five (22%) U.S. residents, that authorize mentally capable, terminally ill adults to obtain a prescription medication they can decide to take to peacefully end unbearable suffering.

“Contrary to the plaintiffs’ claims, Senate Bill 380 simply removed barriers to access medical aid in dying, and participation in the law is completely voluntary for both physicians and patients,” Kevin Díaz, chief legal advocacy officer of Compassion & Choices. “Senate Bill 380 simply requires physicians to adhere to their professional obligations when they refuse to participate in medical aid in dying by: (1) informing the patient who requests medical aid in dying that they will not participate (2) charting the patient’s request and the physician’s refusal to participate in the patient’s medical record, and (3) transferring the patient’s medical record upon request.”

“We believe the court would benefit from hearing the perspectives of those most invested in the law: its sponsor, the terminally ill patients whose interests are literally a matter of life and death, and the physicians who provide end-of-life care and consider the ability to offer medical aid in dying instrumental to how they practice medicine and treat terminally ill patients,” said John Kappos, a partner in the O’Melveny law firm based in Newport Beach, and co-counsel to the proposed intervenors who have a particularized interest in the case.

The intervenors include Oceanside resident Andrew Flack, 33, who has terminal colorectal cancer, Dr. Chandana Banerjee who treats terminally ill patients in Duarte, and Dr. Catherine Sonquist Forest who treats terminally ill patients in Los Altos. Her husband, Will, utilized the End of Life Option Act when his rapidly progressing unclassified motor neuron disease became unbearable.

“I want to be alive. I have a palliative team that helps support and manage my pain, but as my disease progresses and my body continues to deteriorate, the pain only worsens,” said Andrew Flack, who has an unfilled prescription for medical aid in dying he obtained after learning the cancer in his colon and rectum had spread to his prostate, bladder, and tailbone, and was incurable, despite multiple rounds of chemotherapy, radiation, surgeries, and hospitalizations. “Knowing that I have the option to die in a peaceful manner relieves so much of the anxiety that comes from the worsening day-to-day pain. I urge the court to reject the preliminary injunction that would deprive patients like me of an important choice in charting their end-of-life journey and the peace of mind in knowing it exists.”

Andrew Flack with his dog Jaxson

Andrew Flack with his dog Jaxson

Senate Bill 380 took effect on Jan. 1. One aspect of the new law creates a bright line for physicians who object to participation in medical aid in dying and spells out the minimum requirements to ensure that both the continuity of care and informed consent exists between the physician and patient.

“My husband, Will, received a terminal diagnosis from a rapidly progressing disease in mid-April, but his prescription was not written until June due to unnecessary delays, including his non-participating physician’s inability to document his request,” said Dr. Catherine Sonquist Forest, a board-certified family medicine physician who has prescribed medical aid in dying. “The option of medical aid in dying allowed Will to fully live out the days he had left with his family, rather than be preoccupied with the fear of a painful and terrifying death.”

“The best way to restore some semblance of control to terminally ill patients is to provide transparency, information, and as many options as possible,” said Dr. Chandana Banerjee, a California licensed physician trained in hospice and palliative medicine who has written prescriptions for medical aid in dying for eligible patients.

In November 2021, a California appeals court dismissed a separate lawsuit filed in state court, Ahn v. Hestrin, that challenged the constitutionality of California’s End of Life Option Act (before the passage of Senate Bill 380 in 2021) after a lower court temporarily suspended the law in May 2018.

The brief suspension of the End of Life Option Act in May 2018 resulted in a significant number of terminally ill Californians dying with needless suffering because they were unable to access the law: there was a 22 percent drop in the number of terminally ill Californians who received prescriptions for medical aid in dying in 2018 (452) compared to 2017 (577). Compassion & Choices’ appeal of the lower court ruling in June 2018 resulted in an automatic and immediate reinstatement of the law.

Compassion & Choices motion to intervene is posted here: https://compassionandchoices.org/docs/default-source/legal/notice-of-motion-and-motion-to-intervene-wm.pdf?sfvrsn=7339a583_1/Notice-of-Motion-and-Motion-to-Intervene-wm.pdf

ABOUT COMPASSION & CHOICES:

Compassion & Choices is the nation’s oldest and largest nonprofit organization working to improve and expand health care options at the end of life, with 450,000 volunteers nationwide. For more information, visit: CompassionAndChoices.org

O’Melveny is the oldest law firm in Los Angeles. Since its founding in 1885, O’Melveny always has been anchored by a focus on client service, dedication to excellence, and a deep sense of civic responsibility. For more information, visit omm.com 

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