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Posted on May 31, 2018 at 8:12 AM

A Riverside Superior Court rejected a motion filed
by Compassion & Choices
on behalf of a physician and two terminally ill adults urging
the judge to “vacate” (i.e., cancel) his judgment last week invalidating the End of Life
Option Act
However, the court judge, Daniel A. Ottolia, scheduled a hearing on
June 29
consider a separate motion by California Attorney General Xavier Becerra to
vacate the judgment.
Similar to laws
in six other states and Washington, D.C., the California law gives mentally
capable, terminally ill adults with six months or less to live the option to
request prescription medication they can decide to take to end unbearable
suffering and die peacefully in their sleep.
The attorney
general’s motion

asks the court to vacate the judgment because it: ”…purports
to enjoin the ‘State of California’ even though there are no allegations in Plaintiffs’
the ‘State of California’ as a subject of injunctive relief.” The motion also
asks the court to vacate the judgment because “the Department of Public Health
and the Attorney General of the State of California were deprived of their
right to file objections to the Proposed Judgment prepared by Plaintiffs in
this case before the judgment was entered.”
“We are deeply
disappointed that the court ruled against us, but we thank Attorney General
Becerra for defending the law,” said Kevin Díaz, national director of legal
advocacy for Compassion & Choices, whose sister organization, Compassion &
Choices Action Network, led the campaign to pass the End of Life Option Act.
“But the one month delay until the hearing is unacceptable because in the
meantime the law is not in effect and terminally ill Californians now are left
without the option of medical aid in dying to peacefully end unbearable
On May 15, Judge
Ottolia granted plaintiffs’ motion in the case, Ahn
vs. Hestrin

Case RIC1607135, to invalidate the law
because he claimed the legislature violated the state constitution by passing
it during a special session limited to health care issues. The governor’s proclamation convened the Legislature
for an extraordinary session “[t]o consider and act upon legislation necessary
to enact permanent and sustainable funding from a new managed care organization
tax and/or alternative fund sources” and “to consider and act upon legislation
necessary to . . . [i]mprove the efficiency and efficacy of the health care
system, reduce the cost of providing health care services, and improve the
health of Californians.”
Judge Ottolia
gave Attorney General Xavier Becerra five days to appeal the ruling, and the attorney general did so on May 21. On May
23, the 4th District Circuit of Appeal denied a separate motion by
the attorney general for a “stay” to suspend the ruling, but ordered the plaintiffs to show
cause why the appellate court should not overturn the ruling in 25 days.
Despite the appellate court’s denial of the stay, Judge Ottolia’s original
ruling didn’t actually invalidate the law because he had not yet issued a
judgment giving effect to his decision reflected in his order last week.
“The Court’s
ruling was based on a narrow and limited reading of the proclamation, without
any consideration of the full scope of the subject matter the governor’s
proclamation opened up to the legislature,” said John C. Kappos, a partner in
the O’Melveny working with Compassion & Choices, which filed an amicus
brief earlier in the case. “In a vote separate from the vote approving the End
of Life Option Act, the Assembly specifically rejected the argument that
Plaintiffs make in their complaint and found that the law pertained to health
The three motion
petitioners are:
  1. Matthew Fairchild a 48-year-old, retired Army staff sergeant
    in Burbank with terminal melanoma that has spread to
    his bones, lungs and brain who has not received a prognosis of six months
    or less to live, but wants the option of medical aid in dying when he
“I am devastated
to learn that this Court has made a ruling that will interfere with my ability
to receive a prescription from my doctor for aid-in-dying medication when I
reach a diagnosis that I have no more than six months to live and when my suffering
becomes unbearable,” said Fairchild in his petition to the court. “This ruling will likely
mean that I have no option when my suffering becomes intolerable and that I
will have to endure a needlessly agonizing death.”
  1. Joan Nelson, an 82-year-old resident of Marin
    County with a rare terminal cancer called leiomyosarcoma,
    who requested and received a prescription for medical aid in dying before
    the judgment invalidating the law, but now fears the
    legal ramifications of actually self-administering her
    medication if and when her suffering becomes too great.
“…I am very
troubled to learn that this Court has made a ruling that could interfere with
my ability to use my aid-in-dying medication when my suffering becomes
unbearable’” said Nelson in her petition to the court.  “This ruling leaves
me with uncertainty about whether I can legally use my aid-in-dying medication
and whether my passing will be considered a ‘suicide,’ rather than death from
leiomyosarcoma as it should be considered.”
  1. Dr. Catherine Sonquist Forest, a clinical associate professor of family
    medicine at U
    niversity of California at
    San Francisco Natividad in Salinas, who has been
    actively involved in the care of over a dozen patients who have pursued
    medication under the End of Life Option Act. 
“The recent
decision that the End of Life Option Act was enacted unconstitutionally has
left me, my colleagues and patients reeling as we try to navigate end-of-life
care,” said Dr. Forest in
her petition to the court. “The resulting confusion
has compounded my patients’ suffering.”
“For Matt
Fairchild and Joan Nelson, the outcome of this action could determine whether
they die on their own terms, or are deprived of autonomy and left to suffer
unnecessarily in their last days,” said Díaz. “In the absence of the
protections afforded by the End of Life Option Act, the state could make a
felony charge against any physician like Dr. Forest who provides patients with
medical aid in dying.”
Last June, Compassion & Choices
released a report

estimating that 504 Californians have received prescriptions for medical aid in
dying since it took effect on June 9, 2016. Last July, the California
Department of Public Health
released a report showing 191 terminally ill Californians
received prescriptions from 173 doctors for aid-in-dying medication during the
nearly seven month period from June 9, 2016 until Dec. 31, 2016; 111 of those
individuals (58%) decided to self-ingest the medication.
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.
California is
one of seven states — including Colorado, Montana, Oregon, Vermont,
and Hawai‘i
— as well as the District of Columbia, that have authorized medical aid
in dying. Collectively, these eight jurisdictions represent nearly one out of
five Americans (19%) and have 40 years of combined experience safely using this
end-of-life care option.

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