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. Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=6915