Brody et al v California - Litigation to Expand End-of-Life Choice to Include the Option of Aid in Dying

The following is the text of a memo from the Disability Rights Legal Center on its recently filed case Brody et al v California, that aims to expand end-of-life choice to include the option of aid in dying.



Background



Mentally competent terminally ill patients may find themselves trapped in a dying process they find unbearable, even with excellent pain and symptom management. Some of these patients want to be able to ask their physician for medication they could ingest to achieve a peaceful death. This practice is known as aid in dying. 



It is increasingly supported by citizens nationwide: 70% of Americans support. Similar strong support has begun to emerge in the medical, mental health and health policy communities, including the American Public Health Association, the American Medical Women’s Association, the American Medical Students Association and the American College of Legal Medicine. 



The option is now openly available in Oregon (since 1998), Washington (since 2009) and Vermont (since 2013) by statute, and in Montana (since 2009) and New Mexico (since January 2014) by court decision.



The evidence shows that no harm arises when this choice is available. A careful review of data from Oregon, where aid in dying has been openly available for more than 18 years, was conducted by the American Public Health Association, which considered such concerns. The APHA concluded that there was no evidence of harm to vulnerable populations, when aid in dying was available and adopted policy supportive of the option.1



At this point in time, significant support for the option of aid in dying has emerged from mainstream medical, health policy, patient advocacy communities. Supporters will not appear to be ‘out front’ on this issue.



Litigation



In February 2015 we filed a case in California state court, raising statutory and constitutional claims to establish access to aid in dying. The litigation seeks to empower

people dying of terminal illnesses to be autonomous decision makers with control over their bodies, lives, and medical care. The case is brought by terminally ill patients with various terminal illnesses, including cancer, and physicians who provide care to patients with such conditions.



The statutory claim asks the court to recognize that aid in dying does not fall within the scope of a criminal prohibition against ‘assisted suicide’, because the choice of a dying patient for a peaceful death is fundamentally distinct from ‘suicide’.2



The constitutional claim asserts that even if the statute reaches such conduct, a prohibition would violate the dying patient’s privacy and/or liberty interest in making autonomous decisions about their own body and life, protected by the state constitution. This case is modeled after the cases of Baxter v Montana and Morris v New Mexico, which established access to aid in dying in those states.



Counsel



Plaintiffs are represented by Kathryn Tucker, now Executive and Legal Director of the Disability Rights Legal Center; Ms. Tucker has handled more of these sorts of cases than any other attorney in the US.3 



Co-counsel is Nico van Aelystyne , a leader in the litigation department of San Francisco based firm Beveridge & Diamond. Ms. Tucker and Mr. van Aelystyne served as co-counsel in the case which successfully thwarted the effort by US Attorney General John Ashcroft to nullify Oregon’s Death with Dignity Act.



Support



DRLC is the first national disability rights advocacy organization in the US to advocate for aid in dying. This is a landmark case brought on behalf of compelling plaintiffs by leading attorneys, from the platform of a disability rights organization.This is an historic moment. Be part of it by donating to the effort at DRLC.


Give securely on line at www.disabilityrightslegalcenter.org

or via check to: DRLC, 800 S. Figueroa St, Suite 1120, Los Angeles, CA 90017









1 APHA Policy on Patients’ Rights to Self-Determination at the End of Life available at http://www.apha.org/NR/rdonlyres/2B1CC75D-FFA6-4FCB-B630-929403F16946/0/D1June08Resubmission.pdf. The APHA took this position only after a careful 2 year review, which is twice its normal review period



2 The distinction is the focus of an amicus brief filed by the New Mexico Psychological Association in the pending appeal in Morris v NM, , and is widely recognized by other groups, including the APHA, AMSA, and AMWA.



3 Ms. Tucker served as lead counsel in both Glucksberg v Washington and Quill v NY, which raised federal constitutional claims seeking to establish the right; both cases were heard by the Supreme Court of the United States in the mid-1990s. The SCOTUS declined to find a federal constitutional right at that moment, carefully reserving the possibility it might do so in future and inviting the ‘laboratory of the states’ to address the matter. The laboratory has operated since 1998, generating a great body of data, which has been closely scrutinized. Tucker also served as lead counsel in Baxter v Montana, in which the Montana Supreme Court established the right of Montanans to choose aid in dying. She is currently co-counsel in Morris v NM, in which the lower court found a right of citizens in that state to make this choice as a fundamental constitutional right; the matter is now on appeal.