A California court decision is the latest blow to a movement that lately is seeing more setbacks than victories
Stephanie Packer’s health insurer would not put a dollar figure on the value of her life.
Her death — however — they would cover, with just a $1.20 copay on her part. California’s assisted suicide law, which went into effect in 2016, made killing the terminally ill mother of four a far more affordable option than the expensive chemotherapy drugs that had allowed Packer to outlive the medical prognosis.
The lethal barbiturates, her insurer decided, were a more reasonable option under the law than covering a new scleroderma treatment that could help the Orange County woman carry on her life, but not cure the deadly disease destroying her lungs.
But on May 15, nearly three years after California legalized assisted suicide, Judge Daniel Ottolia of the Riverside County Superior Court struck down the law.
The judge ruled the End of Life Option Act, which allows terminally ill persons with a prognosis of less than six months to live to seek doctor-prescribed medication to end their lives, was wrongly pushed through a special session of the legislature, which had been convened to resolve a Medicaid funding crisis.
Attorney General Xavier Becerra has indicated he will seek an expedited review of the decision in the appellate court. The case is expected to end up ultimately before the California Supreme Court.
Packer told Angelus News she had been in the courtroom when Judge Ottolia read his decision. She wanted him to see the face of a terminally ill person whose life is affected by this law.
“All of us realized what was taking place,” she said. “Everybody’s jaw was just on the floor.”
Packer and her children hugged and cried after absorbing the impact of a decision they did not expect. The glow continued into the next day.
“Every hour it seemed my son would come up, smiling to give me a hug, saying, ‘Mom, we did it! We won!’ ”
While “aid-in-dying” advocates have seen some recent gains, the legalization of assisted suicide is not a foregone conclusion. Opponents of assisted suicide have also scored important victories, and an “aid-in-living” movement that stresses better support and care for persons with terminal diagnoses is starting to take shape.
Alexandra Snyder, executive director of the Life Legal Defense Foundation, told Angelus News they filed suit against the law the day after it went into effect. They helped represent a group of physicians, who argued successfully that they were close enough to their patients to have legal standing to bring forward a lawsuit.
Snyder said the End of Life Options Act violated the guarantees of equal protection under state law. California public policy discourages suicide, but Snyder explained coroners and sheriffs said they will not investigate the death of an “aid-in-dying person” unless they have an “actionable tip.”
Judge Ottolia did not address those substantive claims, but instead addressed the procedural violations. He ruled the law was passed outside the bounds of a special session convened over the state’s Medicaid funding shortfall.
“There is no way you can conclude assisted suicide is related to Medicaid spending or any health care concerns,” Snyder said.
If the state supreme court upholds the ruling, California lawmakers will have to go back and craft the legislation in regular order.
Signs of hope
Richard Doerflinger, former associate director for the U.S. Conference of Catholic Bishops’ Pro-Life Secretariat, and an associate scholar with the Charlotte Lozier Institute, told Angelus News the judicial victory was just another sign the assisted suicide movement is not inevitable.
Five states (Washington, California, Vermont, Colorado, Hawaii) and the District of Columbia have followed Oregon’s lead since it legalized assisted suicide in 1997. Montana’s supreme court issued a ruling that allows assisted suicide in practice.
However, Doerflinger pointed out that 10 states have enacted bans on the practice since 1997, joining 31 states that already had bans in effect. He added that at least two dozen states, which already had good laws, have consistently defeated legalization proposals in recent years.
The pro-assisted suicide organization Compassion & Choices had just one success this legislative year after trying to advance bills in 36 different jurisdictions: Hawaii, the culmination of a 20-year sustained effort.
“So supporters’ claim that they have irreversible momentum is far from proven,” he said.
As part of their legalization strategy, assisted suicide proponents have pushed to convince medical associations to drop their opposition. But Doerflinger said both the American Medical Association and the American College of Physicians declined in 2018 to change their opposition to medically assisted suicide.
Doerflinger pointed out the Medical Society of the State of New York also inveighed against efforts in New York’s legislature to legalize assisted suicide.
Compassion & Choices has identified New York, New Jersey and Massachusetts as its top three legislative priorities.
Doerflinger also noted that assisted suicide legislation has not had an enthusiastic response in the District of Columbia, where it was legalized in 2017 over objections the law would disproportionately target poor African-American populations.
So far, no one has opted to use the law, and just two physicians out of 11,000 registered to provide the lethal drugs.
Coalitions are key
In New York, a broad coalition including disability-rights advocates, physicians and the Catholic Church, among others, have succeeded in blocking the legislative path of assisted suicide.
Kathleen Gallagher, director of pro-life activities for the New York State Catholic Conference, told Angelus News that New York is a keystone state in the Compassion & Choices legalization strategy for the U.S.
She said the coalition assembled under the banner of the New York Alliance Against Assisted Suicide has been key, and the Catholic Church could not have succeeded without them.
“This has no traction in New York State,” she said.
Compassion & Choices tried the judicial route, arguing that “aid in dying” was not the same thing as “assisted suicide” — which is illegal under state law.
The state’s high court rejected unanimously the argument in 2017, stating that a physician who helps a person kill himself with a lethal prescription still fits “the ordinary meaning of the statutory prohibition on assisting a suicide,” and there were “no exceptions.”
Assisted suicide laws are drawing closer scrutiny. Doerflinger said the key to defeating the expansion of assisted suicide was education on how the laws are rife with risk of abuse and failures of accountability.
One significant discovery about the Oregon law, which has become a main template for assisted suicide laws both nationally and internationally, was made by a Swedish investigator.
Fabian Stahle confirmed in December 2017 with the Oregon Health Authority that the Oregon Death with Dignity law could apply to anyone who would have less than six months to live without medical treatment. A person with diabetes, who became depressed and ceased taking insulin, could qualify for legal assisted suicide with legal regimes modeled on Oregon’s Death with Dignity law.
Across the pond, the island of Guernsey rejected an opportunity to become the first jurisdiction in the British Isles to embrace assisted suicide. Instead, lawmakers said they intended to review options for improving palliative and hospice options.
In California, the Life Legal Defense Foundation believes it has a good chance of succeeding in its arguments before California’s highest judicial authorities that the assisted suicide law should remain struck down.
Doerflinger said the case and developments happening in the U.S. and elsewhere in the world should remind Catholics that there is no inevitable march of history toward legal assisted suicide.
“Not unless we give up.”
Promoting ‘aid in living’
The Catholic Church is trying to reshape the conversation on end-of-life issues through a series of initiatives known as the “aid-in-living” movement.
The Pontifical Academy for Life began the PAL-LIFE Project, which set up an international study group to support the academy in the promotion of palliative care throughout the world.
Richard Doerflinger, former associate director of the USCCB’s Pro-Life Secretariat, explained that an “aid-in-living” movement is a much-needed counterpoint to the push for the deceptively named “aid-in-dying.”
He said the improvements in palliative and psychological care are not only a moral obligation for society, but will also “reduce the demand” for assisted suicide by dealing with that fear of being abandoned or facing “untreatable pain” and despair.
These are areas where the Church can bring a positive alternative to the table, particularly in spiritual support to those facing existential questions.
“It is proceeding, but needs a lot more attention,” he said.
California’s Catholic bishops and Catholic health care providers have worked together to provide a life-affirming response in the wake of the assisted suicide legalization called the Whole Person Care Initiative.
The Whole Person Care Initiative will help dioceses and parishes provide people with information on advanced directives, palliative care and hospice options, as well as various parish ministries that can support people at the end stages of their lives.
Lizabeth Sumner, director of the Whole Person Care Initiative at The Alliance for Catholic Health Care, told Angelus News that the approach will also expand palliative care and access throughout the Catholic health system in California, and help people realize they will not be isolated or alone dealing with serious illnesses or facing death.
Sumner is working on the curriculum for a “train the trainer” program, so the dioceses can get the needed training and resources for the initiative into the local parishes.
“We want them to know they can count on their faith community as they go through this important experience,” she said.