Disability rights groups sue to overturn physician-assisted death law
May 22-28, 2023
By Don Thompson
Disability rights advocates sued in April to overturn California’s physician-assisted death law, arguing that recent changes make it too easy for people with terminal diseases whose deaths aren’t imminent to kill themselves with drugs prescribed by a doctor.
California’s original law allowing terminally ill adults to obtain prescriptions for life-ending drugs was passed in 2016. Advocates say the revised version that took effect last year removes crucial safeguards and violates the U.S. Constitution and the Americans with Disabilities Act.
Plaintiffs in the federal lawsuit, which was filed in Los Angeles County, argue that life-ending drugs are more likely to be used by people with disabilities and racial and ethnic minorities because those groups are less likely to receive proper medical and mental health care. The advocates fear that vulnerable people could be pressured into taking their lives by family members or caretakers or feel pressure themselves because they don’t want to be a burden.
The lawsuit contends that California’s approach, known as the End of Life Option Act, harks back to the discredited practice of eugenics, which once sought to keep people with disabilities and other minority groups from reproducing.
The system “steers people with terminal disabilities away from necessary mental health care, medical care, and disability supports, and towards death by suicide under the guise of ‘mercy’ and ‘dignity’ in dying,” the suit argues. The terminal disease required for assistance is, by definition, a disability under the Americans with Disabilities Act, it says.
Proponents of the law rejected those claims. “We will do everything possible to ensure the law remains in effect,” said Kevin Díaz, chief legal advocacy officer for Compassion & Choices, a group that backed the California laws, in a statement. Diaz said there was broad public support for “medical aid in dying for terminally ill adults, who are destined to die, and just want to have the option to die peacefully, rather than with needless suffering.”
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Sean Crowley, a spokesperson for the group, pointed to a 2007 study of the practice in Oregon and the Netherlands that found “no evidence of heightened risk” for vulnerable groups.
Michael Bien, an attorney for the plaintiffs, said the law violates constitutional equal protection and due process safeguards designed to protect people from discrimination and exclusion. Bien is one of the attorneys who sued on behalf of the United Spinal Association, which has at least 60,000 members with spinal cord injuries or who use wheelchairs, including 5,000 in California; Not Dead Yet, which opposes physician-assisted death; the Institute for Patients’ Rights, which advocates for those at the end of life facing health care disparities; and Communities Actively Living Independent & Free, an independent living center in Los Angeles County.
Bien pointed to statistics showing inequities in infant and maternal mortality, and covid-19 deaths.
“This is how our system works, and end-of-life care has the exact same problems,” Bien said.
People who choose to use drugs supplied by a doctor to kill themselves may not realize they could instead receive help managing their pain, potentially including sedation that can render them unconscious, said Ingrid Tischer, one of two individual plaintiffs in the lawsuit.
“It really does create two classes of people” based on whether they are perceived to be terminally ill, said the 57-year-old Berkeley resident. “One side gets [suicide] prevention, one side gets a [life-ending] prescription. And that is discriminatory.”
Tischer was born with a type of muscular dystrophy, a progressive disease that now makes it difficult for her to breathe and requires her to use a walker or a wheelchair.
“I want the care that people get at the end of life, including my own, to be much better,” she said. “And I don’t want assisted suicide to become the new American way of death.”
California is one of 10 states, along with Washington, D.C., that have so-called aid-in-dying laws. The others are Colorado, Hawaii, Maine, Montana, New Jersey, New Mexico, Oregon, Vermont, and Washington.
Bien said his clients were looking for a way to challenge the laws and settled on California’s 2022 statute because it removed safeguards in the original law.
The revisions reduced the minimum waiting period required between the time patients must make two oral requests for medication from 15 days to 48 hours. The suit notes that, by contrast, California has a 10-day cooling-off period between buying a gun and taking possession of it. The law also eliminated requiring patients to make a written attestation within 48 hours before taking life-ending medication.
Proponents of the revised law said those safeguards had become unnecessary, time-consuming barriers and that other protections remain in the statute. Compassion & Choices, which advocates for assisted death laws, cited a 2017 study that found 21% of people died or became too ill to proceed with the steps. Supporters of the law said they weren’t aware of any abuse or coercion.
The suit argues that people who could live indefinitely with proper medical care can be considered terminally ill and thus eligible for the drugs if they likely would die within six months without such care. That, it says, could include diabetes patients who refuse insulin or people with kidney disorders who refuse dialysis.
Bien cited a doctor in Colorado who wrote in a medical journal that she had steered two patients with anorexia to take prescribed life-ending drugs. Compassion & Choices said that violates the law.
Even doctors unwilling to assist patients in killing themselves are required under California’s law to document the patient’s request, which still counts as the first of two required spoken requests. Christian Medical & Dental Association sued over that requirement and a federal judge blocked that portion of the law in September. The state is appealing the ruling.
The California Attorney General’s Office had no immediate comment on the lawsuit, and the law’s author, Democratic state Sen. Susan Talamantes Eggman, did not immediately respond to requests for comment.
This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.