X-Message-Number: 6915
Date: Sun, 15 Sep 1996 22:49:27 -0700
From: David Brandt-Erichsen <>
Subject: California assisted suicide ruling

[The bottom line on this story is that a Federal court ruled against
California's law against physician-assisted suicide, but the law remains in
effect.  The following two stories give a different slant on the subject.
I've been off-line for a few days so this report is a little late.]


JUDGE OVERTURNS STATE'S BAN ON ASSISTED SUICIDE
Friday September 13, 1996, San Francisco Chronicle
by Reynolds Holding, Chronicle Legal Affairs Writer

A federal judge in Los Angeles has struck down California's ban on assisted
suicide, relying on a landmark appeals court ruling that terminally ill
patients have a right under the federal Constitution to decide when and how
to die.

But U.S. District Judge Consuelo Marshall also held Wednesday that there is
no such right under the state constitution, a ruling that might seriously
threaten any future for assisted suicide in California.

The latest of several recent cases dealing with assisted suicide, the
decision leaves uncertain the legality of the controversial practice.  The
California ban remains in effect for now, because Marshall has not yet
barred its enforcement.  And it will be up to the U.S. Supreme Court to
finally determine the validity of the right to die.

In her order, Marshall followed a March decision by the U.S. Court of
Appeals in San Francisco that struck down Washington state's assisted
suicide ban.  The ban was almost identical to the California law.  

However, the U.S. Supreme Court has since been asked to reverse that
decision in the Washington case.  And if the high court does, advocates of
the right to die may be forced to base their claims in this state on the
California Constitution's right to privacy - a strategy that Wednesday's
ruling places in doubt.

Nevertheless, supporters of assisted suicide were content yesterday to savor
their latest victory.

"I think this shows a very significant trend," said Dr. Lonny Shavelson, a
board member of the Death with Dignity Education Center in San Mateo.
"Every time they loot at the legal and ethical aspects, judges are deciding
that there cannot be a ban on assisted suicide."

The opponents of the right to die were also pleased, but for different
reasons.  "I think that is an excellent decision, because the right to be
killed or for a doctor to kill is not a matter of privacy," said Wesley
Smith, an attorney for the International Anti-Euthanasia Task Force.

The California law says that "every person who deliberately aids, or
advises, or encourages another to commit suicide, is guilty of a felony." It
closely resembles the Washington state law that the federal appeals court
ruled unconstitutional on March 6.  In that ruling - the first of its kind -
the court said the right to die is a liberty interest protected by the due
process clause of the 14th Amendment.  The decision applied to nine Western
states, including California.

Writing for the court, Judge Stephen Reinhardt said that "no decision is
more painful, delicate, personal, important or final than the decision how
and when one's life should end.  If broad general state policies can be used
to deprive a terminally ill individual of the right to make that choice, it
is hard to envision where the exercise of arbitrary and intrusive power by
the state can be halted," he wrote.

Marshall followed that reasoning Wednesday and said that the right to
assisted suicide is comparable to the right to abortion.  Citing high-court
rulings against laws that place an "undue burden" on abortion, she said
California's ban not only burdens assisted suicide, it "categorically
prohibits all such conduct."

She did not say, however, whether the entire law is unconstitutional - or
just its prohibitions of doctor-assisted suicides.  The appeals court ruling
only applies to suicides assisted by physicians and requested by competent,
terminally ill patients.

On the issue of California's right to privacy, she said she was bound to
follow a state Court of Appeal ruling in 1992 that assisted suicide is not
protected.  The state's right to privacy is considered stronger than the
federal right, because it is state explicitly in the California
Constitution.  The federal right is only implied in the U.S. Constitution,
the Supreme Court has ruled.

The California case before Marshall involved a 35 year-old man who is
terminally ill with AIDS.  The challenge to the law was initially filed by
that man and Dr. Jack Kevorkian, but Marshall ruled that Kevorkian had no
standing to challenge the law because his California medical license was
revoked in 1994 for assisting suicides in Michigan.

The state attorney general's office said it will appeal the decision and
will ask the court to keep the law in place during the appeal.


ASSISTED-SUICIDE BAN ILLEGAL, JUDGE RULES
Friday, September 13, 1996, Los Angeles Times
By HENRY WEINSTEIN, Times Legal Affairs Writer

Following the lead of a federal appeals court in San Francisco, a Los
Angeles judge has ruled that California's law making physician-assisted
suicide a felony is unconstitutional.  In a case involving a 36-year-old Los
Angeles County man dying of AIDS, U.S. District Judge Consuelo B. Marshall
held that the California law violates the due process clause of the U.S.
Constitution.

In March, the U.S. 9th Circuit Court of Appeals ruled in a landmark decision
that a mentally competent, terminally ill adult has a constitutional right
to utilize a doctor's assistance in hastening his death. That ruling struck
down Washington state's ban on physician-assisted suicide and by implication
similar laws in several other Western states under the jurisdiction of the
9th Circuit, including California.

Marshall's ruling, released Thursday, explicitly strikes down the California
statute, utilizing the same reasoning as the 9th Circuit decision. But the
decision will have no immediate impact, said Mark E. Field, the Long Beach
lawyer representing the AIDS patient who challenged the law.

Field said that Marshall has to issue a separate order implementing her
ruling for a physician to be protected from prosecution. Field said he is
not sure when Marshall will issue the companion order. He said it is
possible the judge may delay issuing such an order because of pending
litigation in the U.S. Supreme Court.

Washington officials obtained a stay of the 9th Circuit decision, while the
U.S. Supreme Court considers their request for a review of the ruling. The
Supreme Court is expected to announce in early October whether it will take
the case.

In the meantime, Field said that his client has no immediate plans to take
his life. However, Field added, "he wants to be able to take advantage of
the right [to physician-assisted suicide] when he reaches the stage in his
illness where he is ready to die with dignity."

In his suit, the plaintiff, described as "John Doe" to protect his privacy,
said he has "seen his peers die without dignity and in horrible pain, and he
does not want that fate to befall him."

Field said that if Marshall does not issue an implementing order soon, he
probably will ask her to issue the order.

State Atty. Gen. Dan Lungren, whose office defended the California statute,
issued a statement saying he was disappointed with Marshall's ruling. "I
expect to appeal this case immediately and strongly believe that our
criminal law will be upheld by the nation's highest court."

Lungren said, however, that he was pleased with two related rulings that
Marshall made. The judge rejected the plaintiff's claim that the statute
violated his right to privacy under the California Constitution.
Additionally, she dismissed a separate constitutional challenge to the
California law by Michigan doctor Jack Kevorkian, saying he had no standing
to challenge the law because he is not a licensed physician in California.


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