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Posted on June 2, 2018 at 6:30 AM
Matt Fairchild

Two terminally adults and a physician in California
today filed a notice of
a lower court’s decisions in a lawsuit seeking to overturn the California End of Life
Option Act

The decisions include the rejection on Wednesday of a motion filed
physician and two terminally ill adults urging the judge to “vacate” (i.e.,
cancel) his judgment last week invalidating the law.

The group
requests state Attorney General Xavier Becerra to take a position on Compassion
& Choices’ legal opinion that its notice of appeal with the 4
th District
Circuit of Appeal triggers an automatic stay of Riverside County Superior Court
Judge Daniel Ottolia’s judgment. A stay would reinstate the law pending further
court rulings.

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.

“We are besieged
with calls from
confused, terminally ill Californians
, doctors and health care providers about the
status of 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. “It is
becoming increasingly obvious that doctors and patients need this clarity from
the attorney general or the courts. Otherwise, doctors will not feel
comfortable advising patients about medical aid in dying or writing a

“There is legal
precedent that when you file an appeal with the appellate court of a lower
court judgment that it automatically triggers a stay suspending the judgment to
maintain the status quo,” said John C. Kappos, a partner in the O’Melveny
working with Compassion & Choices, which filed an amicus brief earlier in
the case. “Since certainty is so important for all involved, if the attorney
general or Riverside district attorney has doubts as to the existence of a
stay, we will ask the court for further guidance.”

The three
Californians who are asking the appellate court for a reversal of the decisions
by the lower court 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 does.
“I am devastated
to learn that this [lower] 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
    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 self-administering her
    medication if, and when, her suffering becomes too great.
“…I am very
troubled to learn that this [lower] 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’
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
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.
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.
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 invalidate the law because he had not yet issued a judgment
giving effect to his decision reflected in his order last

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