1. law, govt and politics

2
3
4
5
6
7
8
9
Nicholas W. van Aelstyn (State Bar No. 158265)
Lauren Hopkins (State Bar No. 300977)
Zachary Norris (State Bar No. 268616)
Andrew C. Mayer (State far No. 287061)
Beveridge &Diamond,P.C.
456 Montgomery Street, Suite 1800
San Francisco, CA 94104-1251
Telephone: (415)262-4000
Facsimile: (415)262-4040
Kathryn L. Tucker(MJP No. 802194)
Shawn C. Kravich (State Bar No. 271945)
Disability Rights Legal Center
800 South Figueroa St., Suite 1120
Los Angeles, CA 90017
Telephone: (213)736-8362
Facsimile: (213) 736-1428
10
11
12
Attorneysfor Plaintiffs Robert Brody, M.D.,
Marc Conant, M.D., Donald Abrams, M.D.,
Robert Liner, M,D., Daniel M. Swangard, M.D.,
and Christie White
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
CITY AND COUNTY OF SAN FRANCISCO
15
16
17
ROBERT BRODY,M.D.; MARC CONANT,M.D.;
DONALD ABRAMS,M.D.; ROBERT LINER,
M.D., DANIEL M. SWANGARD,M.D.; and
CHRISTIE WHITE,
18
Case No.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
(Code Civ. Proc. §§ 525 & 1060)
Plaintiffs,
Unlimited Civil Action
19
20
21
22
23
vs.
KAMALA D. HARRIS,in her official capacity as
Attorney General of the State of California, and;
GEORGE GASCON,in his official capacity as
District Attorney for San Francisco County,
Defendants.
24
25
26
27
28
Complaint for Declaratory and Injunctive Relief
INTRODUCTION
1
2
1.
This action is brought by three California citizens with cancer, and three California
3
physicians who regularly care for terminally ill patients (collectively, "Plaintiffs") to clarify that
4
when physicians provide aid in dying to mentally competent, terminally ill patients they do not
5
violate California law. Specifically, this action seeks relief clarifying that Section 401 of the
6
California Penal Code (the "Assisted Suicide Statute"), which provides that "[e]very person who
7
deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony," does not
8
encompass the conduct of a licensed physician providing aid in dying to a mentally competent,
9
terminally ill patient who has requested such assistance. The Assisted Suicide Statute was adopted
10
11
by the California Legislature in 1874, and its text has not been amended in the 140 years since.
2.
Any interpretation or application of the Assisted Suicide Statute to prohibit or punish
12
the medical practice of assisted dying would be unlawful because (1)the medical provision of
13
assistance in dying does not constitute aid, advice, or encouragement to commit "suicide," as that
14
term is used in the Assisted Suicide Statute, and (2)if it did, the Assisted Suicide Statute would
15
violate multiple provisions of California law.
16
3.
Plaintiffs seek a declaration that a physician who provides aid in dying to a mentally
17
competent, terminally ill adult patient who has requested it is not criminally liable under California's
18
Assisted Suicide Statute. Plaintiffs further seek an injunction prohibiting defendants Attorney
19
General Kamala Harris and District Attorneys George Gascon and Jill Ravitch in their official
20
capacities (collectively,"Defendants"), as well as their agents, employees, representatives, and all
21
those acting in concert with them, from applying or enforcing the Assisted Suicide Statute to
22
penalize or prohibit the medical practice of aid in dying for mentally competent, terminally ill
23
patients.
PARTIES
24
25
4.
PLAINTIFF ROBERT V. BRODY,M.D. is a resident of San Francisco and is
26
licensed to practice medicine in the State of California, license number G022035. Dr. Brody is
27
Clinical Professor of Medicine and Family &Community Medicine at the University of California,
28
San Francisco, and has practiced medicine at San Francisco General Hospital since 1978. Dr. Brody
-1Complaint for Declaratory and Injtmctive Relief
1
served as the Director of the Ethics Service and the Chair ofthe Ethics Committee at San Francisco
2
General Hospital from 1990 to 2007, and has been a member of that Service and Committee from
3
1987 to the present. Dr. Brody also currently serves as Attending Physician on the Palliative Care
4 ~ Service, the Pain Service, Chief of the Pain Consultation Clinic at San Francisco General Hospital,
5
and Medical Director for the San Francisco Department of Public Health's Health at Home program.
6
Dr. Brody has served as the medical director for various hospice and convalescent programs
7
throughout his career, which has focused on end of life care, ambulatory care, hospice and palliative
8
care, home care, and medical ethics.
9
5.
In the course of his practice, Dr. Brody has provided medical care to patients whom
10
he knows to be mentally competent and terminally ill, and who have expressed the desire to have the
11
option of aid in dying. Dr. Brody would be willing to provide aid in dying to such patients if no
12
criminal prohibition would expose him to prosecution for doing so. Dr. Brody is reluctant to
13
consider providing aid in dying to his terminally ill patients because of the uncertainty over the
14
applicability of the Assisted Suicide Statute. He thus has been unable to include all of the medically
15
appropriate treatment options available to his patients.
16
6.
PLAINTIFF MARL A. CONANT,M.D. is a resident of San Francisco, and is
17
licensed to practice medicine in the State of California by the California Board of Medical
18
Examiners, license number C 27910. Dr. Conant served as a Flight Surgeon in the United States Air
19
Force from 1962 to 1964, and in the Air Force Reserve from 1964 to 1967. Dr. Conant has held
20
several academic appointments at the University of California Medical Center, San Francisco, from
21
1967 to the present, where he served as the Director of the AIDS Clinical Research Center, as a
22
member of the Medical Ethics Committee, and currently serves as an Emeritus Clinical Professor of
23
Dermatology. Dr. Conant has served as a Consultant to the Director of Hospitals and Clinics,
24
University of California Medical Center, the Fifth Congressional District AIDS Task Force, the San
25
Francisco City Public Health AIDS Taslc Force, the California Assembly Ways and Means AIDS
26
Committee, and U.S. Senator Diane Feinstein's AIDS Committee. Dr. Conant also served as the
27
United States' Representative to the World Health Organization meeting on AIDS in 1983. Dr.
28
Conant is the recipient of several awards for excellence in teaching, medical practice, and leadership
-2Complaint for Declaratory and Injunctive Relief
1
on human rights and AIDS issues, including the University of California Berkeley's School of Public
2
Health's 2013 Public Health Heroes Award.
3
7.
In the course of his practice, Dr. Conant has provided medical care to patients whom
4
he knows to be mentally competent and terminally ill, and who have expressed the desire to have the
5
option of aid in dying. Dr. Conant would be willing to provide aid in dying to such patients if no
6
criminal prohibition would expose him to prosecution for doing so. Dr. Conant is reluctant to
7
consider providing aid in dying to his terminally ill patients because of the uncertainty over the
8
applicability ofthe Assisted Suicide Statute. He thus has been unable to include all of the medically
9
appropriate treatment options available to his patients.
10
8.
PLAINTIFF DONALD ABRAMS,M.D. is a resident of San Francisco, and is
11
licensed to practice medicine in the State of California by the Medical Board of California, license
12
number G36948. Dr. Abrams has served in various academic appointments at the University of
13
California, San Francisco from 1982 to the present, where he currently serves as Professor of
14
Clinical Medicine and Co-Chair of the Helen Diller Family Comprehensive Cancer Center
15
Developing Program in Symptom Management, Palliative Care and Survivorship, as well as a
16
member of the Resource Allocation Program Cancer Review Committee. He also has served as the
17
Director of Clinical Programs for the University of California, San Francisco Osher Center for
18
Integrative Medicine. Dr. Abrams has served at the San Francisco General Hospital as Assistant
19
Director of the AIDS Program, and currently serves there as the Chief of the Hematology-Oncology
20
Division. Dr. Abrams has been the recipient of many awards for excellence in teaching, medical
21
practice, and leadership on AIDS and human rights issues, and has published hundreds of peer
22
reviewed papers, textbooks, and textbook chapters.
23
9.
In the course of his practice, Dr. Abrams has provided medical care to patients whom
24
he knows to be mentally competent and terminally ill, and who have expressed the desire to have the
25
option of aid in dying. Dr. Abrams would be willing to provide aid in dying to such patients if no
26
criminal prohibition would expose him to prosecution for doing so. Dr. Abrams is reluctant to
27
consider providing aid in dying to his terminally ill patients because of the uncertainty over the
28
-3Complaint for Declaratory and Injunctive Relief
1
applicability of the Assisted Suicide Statute. He thus has been unable to include all of the medically
2
appropriate treatment options available to his patients.
3
10.
PLAINTIFF ROBERT LINER, M.D., is a resident of San Francisco, and has been
4
diagnosed with stage IV lymphoma. While Dr. Liner's cancer is currently in remission, Dr. Liner
5
understands that it is possible that his cancer will recur. If Dr. Liner's cancer does recur, there is a
6
high likelihood that it will advance to the point where curative options are exhausted. and medicine
7
will be able to offer an insufficient degree of symptomatic relief Dr. Liner wants the option of
8
physician assistance in dying, should his cancer recur and advance to this point.
9
11.
Dr. Liner is also a physician with forty years of practice in the Bay Area. Dr. Liner
10
has been certified by the National Board of Medical Examiners, the American Board of Obstetrics
11
and Gynecology, and the American College of Obstetricians and Gynecologists. He has served as a
12
clinical professor at Mt. Zion Hospital, in San Francisco, California. Dr. Liner retired from the
13
practice of medicine in August of 2011.
14
12.
PLAINTIFF DANIEL M. SWANGARD,M.D., is a resident of San Francisco, and
15
has been diagnosed with neuroendocrine tumor of the pancreas, with metastic disease to the liver.
16
Dr. Swangard had major surgery in Apri12013 to address his cancer. Dr. Swangard's cancer is
17
currently in remission, but he has regular MRI scans and understands that there is at least a 50
18
percent chance that it will recur. If, as a result of a recurrence, Dr. Swangard received a terminal
19
six-month diagnosis and life expectancy, he would desire the option of aid in dying.
20
13.
Dr. Swangard is also a physician licensed to practice medicine in the State of
21
California by the Medical Board of California, license number G081857. Dr. Swangard has been
22
certified by the American Board of Internal Medicine, number 172921, and the American Board of
23
Anesthesia, number 33850. Since 2009, Dr. Swangard has been a Shareholder of the Northern
24
California Anesthesia Physicians, and practices medicine at the California Pacific Medical Center.
25
In 2007 and 2008, Dr. Swangard served as an Associate Clinical Professor at Columbia Presbyterian
26
Medical Center in New York. Between 1999 and 2006, he held several academic appointments as
27
clinical instructor and associate clinical professor at the University of California Medical Center, San
28
Francisco, Department of Anesthesia. He has served on numerous committees at the University,
Complaint for Declaratory and Injunctive Relief
1
including the Pain Committee, the Anesthesia Committee, and the Cardiac Surgery Task Force. Dr.
2
Swangard is the recipient of several awards for excellence in residency and teaching on
3
anesthesiology. Dr. Swangard also volunteered for a significant time with Zen Hospice at the
4
Laguna Honda facility in San Francisco, an experience of close engagement with and service to
5
those that were dying that informs his views about the sort of death experience he hopes to have.
6
14.
PLAINTIFF CHRISTIE WHITE is a resident of San Francisco, and has been
7
diagnosed first with non-Hodgkin's lymphoma and then acute myeloid leukemia or AML Leukemia.
8
Ms. White was treated with radiation for her lymphoma in 2007, which later contributed to her
9
developing AML Leukemia in 2012. Ms. White had a bone marrow transplant in September of 2012
10
to treat her cancer, and has undergone several rounds of chemotherapy. While her leukemia is
11
currently in partial remission, she continues to battle graft vs. host disease. Ms. White is very active
12
in the fight against cancer; she is a public speaker, she fundraiser, and she currently serves on the
13
Board of Directors of the Greater Bay Area Chapter of the Lymphoma Leukemia Society (LLS).
14
Ms. White understands that, should her leukemia recur, her medical options would be severely
15
limited. She would not be eligible for another bone marrow transplant, and cannot undergo further
16
chemotherapy. Ms. White has seen many friends in the cancer patient community suffer terribly at
17
end of life. She would like to have the option of aid in dying in California. Ms. White does not
18
want to leave her husband, family and Friends to move to Oregon, where she could avail herself of
19
that State's aid in dying statute.
20
15.
DEFENDANT KAMALA HARRIS is the Attorney General of the State of
21
California, the chief law enforcement officer of the State, and is named as a Defendant in her
22
professional capacity. It is the duty of the Attorney General to see that the laws of the State are
23
uniformly and adequately enforced. The Attorney General has direct supervision over every district
24
attorney and other law enforcement officers in all matters pertaining to the duties of their respective
25
offices. Whenever in the opinion of the Attorney General any law of the State is not being
26
adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any
27
violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney
28
General shall have all the powers of a district attorney. California Constitution, Art. 5, § 13.
-5Complaint for Declaratory and Injunctive" Relief
1
16.
DEFENDANT GEORGE GASCON is the District Attorney for the County of San
2
Francisco, and is named as a Defendant in his professional capacity. The District Attorney, an
3
elected official, is the chief law enforcement officer of the County, and is authorized under the
4
California Constitution to initiate legal actions on behalf of the People of the State of California.
5
California Constitution Art. 5, § 13; Art. 11, §§ 1, 4; California Government Code § 24000 et seq.,
6
and § 26500 et seq. The District Attorney acts both as a county officer and a state officer in the
7
exercise of his or her powers as authorized by law.
JURISDICTION AND VENUE
8
9
10
11
17.
This Court has jurisdiction over this action pursuant to Code of Civil Procedure
Sections 187, 525 and 1060. This Court has personal jurisdiction over Plaintiffs and Defendants.
18.
Venue is proper in this Court pursuant to Code of Civil Procedure Section 395,
12
subdivision (a), because Defendant Gascon resides in San Francisco County, and Defendant Harris
13
maintains an office in San Francisco County.
GENERAL ALLEGATIONS
14
15
19.
California's Assisted Suicide Statute provides that "[e]very person who deliberately
16
aids, or advises, or encourages another to commit suicide, is guilty of a felony." This statute does
17
not reference physicians providing aid in dying to terminally ill, mentally competent persons.
18
20.
"Aid in dying" is a recognized term of art for the medical practice of providing a
19
mentally competent, terminally ill patient with a prescription for medication that the patient may
20
choose to ingest in order to bring about a peaceful death if the patient finds his dying process
21
unbearable. It is recognized that what is causing the death of a patient choosing aid in dying is the
22
underlying terminal illness.
23
21.
Medical practices, treatment, and ethics have changed dramatically over the past 140
24
years, particularly with respect to end of life care. A standard of care for aid in dying, informed by
25
clinician practices and authoritative literature, including Clinical Practice Guidelines, has developed.
26
In addition to these developed professional practices directly related to aid in dying, physicians must
27
often assess their patients' competence to make life altering or ending decisions and have the
28
necessary training to do so.
-6Complaint for Declaratory and Injunctive Relief
22.
When aid in dying is an openly available practice, end of life care for all terminally ill
2
patients improves through better pain treatment, earlier and increased referrals to hospice and better
3
dialogues between physicians and their terminally ill patients about end of life care and wishes.
4
When aid in dying is available, patients who choose it are most often dying of cancer. ALS is the
5
second most common diagnosis among patients electing this option. Patients choose aid in dying for
6
a wide range of reasons, including but not limited to the loss of autonomy, loss of ability to engage
7
in activities that make life enjoyable, progressive and inexorable loss of control of bodily functions
8
and integrity, and the pain occasioned by terminal illness such as cancer or ALS. Patients who
9
obtain the medications for aid in dying often do not ultimately ingest them but are comforted to have
10
the option.
11
23.
Growing legal, mental health, and medical professional consensus recognizes a
12
fundamental difference between suicide and aid in dying. Mental health professionals recognize a
13
stark distinction between suicide and aid in dying. For example, the American Psychological
14
Association has recognized that "the reasoning on which a terminally ill person (whose judgments
15
are not impaired by mental disorders) bases a decision to end his or her life is fundamentally
16
different from the reasoning a clinically depressed person uses to justify suicide." American
17
Psychological Association,"Terminal Illness and Hastened Death Requests: The Important Role of
18
the Mental Health Professional" 1 (1997), quoted in Brief of Amicus Curiae Coalition Of Mental
19
Health Professionals in Support of Respondents at 17, Gonzales v. Oregon, No. 04-623, 2004 U.S.
20
Briefs 623.
21
24.
State psychological associations have also taken clear positions that suicide and aid in
22
dying are fundamentally different and ought not be conflated. For example, the New Mexico
23
Psychological Association (the "NMPHA")filed an amicus brief in a case similar to this one, in
24
which a New Mexico court held that that State's constitutional guarantee offundamental rights
25
protected a mentally competent, terminally ill patient's right to aid in dying. In that brief, the
26
NMPHA discussed the critical difference between suicide and aid in dying, and urged the court to
27
find that the New Mexico statute prohibiting assisting suicide did not reach the conduct of a
28
physician providing aid in dying. See Brief of Amicus New Mexico Psychological Association in
-7Complaint for Declaratory and Injunctive Relief
1
Support ofthe Plaintiffs, MoNris v. New Mexico, 2014 N.M. No. D-202-CV 2012-02909(Dec. 10,
2 ~ 2014).
3
25.
Many medical experts and legal experts recognize that when mentally competent
4 I, ~ terminally ill patients choose to self-administer medications to bring about a peaceful and dignified
5
death, they do not commit "suicide," nor do those who provide the medication commit "assisted
6
suicide."
7
8
9
26.
Terminal illness manifests in a variety of forms and end of life treatment varies
dramatically. For the purpose of comparison, Plaintiffs draw attention to three end of life scenarios:
A)
Patient A, whose life is being prolonged by medical intervention such as a ventilator
10
or feeding tube, can lawfully direct withdrawal of the intervention, or, if mentally
11
incapacitated, others that have been so authorized can direct the withdrawal of the
12
intervention, thereby precipitating death;
13
B)
Patient B, with refractory pain, can lawfully request total sedation (also referred to as
14
"palliative sedation," "terminal sedation" and "sedation to unconsciousness"),
15
whereby her doctor induces an unconscious state via intravenous medication,
16
withholds hydration and nutrition, and maintains the patient in this state until death
17
ensues days or weeks later;
18
C)
Patient C is terminally ill and of sound mind, but does not have life prolonging
19
intervention to withdraw and is ineligible for total sedation because she does not
20
experience the sort of refractory pain considered a prerequisite for this intervention.
21
This patient may find the dying process unbearable. It is uncertain whether, under the
22
Assisted Suicide Statute, Patient C may lawfully aslc her physician for a prescription
23
for medication that she could ingest to achieve a peaceful death, or whether her
24
physician could lawfully provide her with counsel about the option of aid in dying.
25
27.
Patient Plaintiffs Liner, Swangard, and White understand their diagnoses, are fully
26
competent and of sound mind, and understand that it is probable, and for some Plaintiffs, quite
27
likely, that they will face the dilemma of the hypothetical Patient C described above.
28
-8Complaint for Declaratory and Injunctive Relief
1
28.
In the course of their respective medical practices, each of the physician Plaintiffs
2
encounter terminally ill patients who have no chance of recovery and for whom medicine cannot
3
offer any hope other than some degree of symptomatic relief. Indeed, in some cases, even
4
symptomatic relief is impossible to achieve without the use ofterminal sedation. The only choices
5
available to such patients are prolonged and unrelieved anguish on the one hand, or unconsciousness
6
and/or total loss of control and personal dignity through palliative sedation or withdrawal of life-
7
support, on the other. At times, though death is imminent, the later scenario is not an option because
8
the patient does not meet the criteria of refractory pain. Faced with this reality, some mentally
9
competent, terminally ill patients would choose aid in dying.
10
29.
In the professional judgment of the physician Plaintiffs, the provision of aid in dying
11
by physicians is a medically and ethically appropriate course oftreatment in some cases. In the
12
course of their respective medical practices, each of the physician Plaintiffs has treated patients
13
faced with the choice described above. In those circumstances, the professional judgment of each of
14
the physician Plaintiffs was that access to aid in dying would be a medically and ethically
15
appropriate option for those patients.
16
30.
Each of the physician Plaintiffs has treated mentally competent, terminally ill adult
17
patients who requested access to aid in dying, but were deterred from providing such treatment due
18
to fear of potential prosecution under the Assisted Suicide Statute. Each of the physician Plaintiffs
19
reasonably expects to encounter more such patients in the future course of their respective medical
20
practices.
21
31.
The existence and potential application of California's Assisted Suicide Statute deters
22
the physician Plaintiffs from discussing and/or providing access to aid in dying and thereby prevents
23
them from offering medical care, which, in their professional judgment, would be appropriate under
24
the circumstances.
LEGAL BACKGROUND
25
26
32.
California's Constitution extends protections independent of, and more protective
27
than, the limitations placed on the powers of states by the Fourteenth Amendment to the United
28
States Constitution.
Complaint for Declaratory and Injunctive Relief
1
33.
The California Constitution guarantees that "[a]11 people are by nature free and
2
independent and have inalienable rights. Among these are enjoying and defending life and liberty ...
3
and pursuing and obtaining safety, happiness, and privacy." Cal. Const. Art. I, § 1. This guarantee
4
is independent of, and provides more protection than, the limitations placed on the powers of states
5
by the Fourteenth Amendment of the United States Constitution. See American Academy of
6
Pediatrics v. Lungren, 16 Cal. 4th 307, 326(Cal. 1997); People v. Mayoff, 42 Cal. 3d 1302, 1312
7 (Cal. 1986); Strauss v. Horton,46 Cal. 4th 364,436-37(Cal. 2009); Gerawan Farming, Inc. v.
8
Lyons, 24 Cal. 4th 468, 490 (Cal. 2000)(reversed on other grounds). Although tl~e United States
9
Constitution contains limitations on the powers of the state and federal governments related to due
10
process, it does not contain an explicit guarantee of the right to privacy analogous to that in the
11
California Constitution.
12
34.
The Constitution of California requires the state to provide every person with Equal
13
Protection of the laws. Cal. Const. Art. I, § 7(a). The California Constitution, Article I, section 7,
14
further mandates that "a person may not be deprived of life, liberty, or property without due process
15
of law ...." Id.
16
35.
It is the policy of this State to respect privacy, personal dignity, individual autonomy,
17
and particularly autonomy in medical decision-making. The presumption of individual autonomy in
18
medical decision making is reflected in California's Health Care Decisions Law (formerly known as
19
the Natural Death Act of 1976), which recognizes "the fundamental right to control the decisions
20
relating to his or her own health care, including the decision to have life-sustaining treatment
21
withheld or withdrawn." Cal. Probate Code § 4650(a); see also 22 C.C.R. § 70707(6). The Health
22
Care Decisions Law sets out a process by which patients may create health care directives regarding
23
the types of treatment they wish to receive or forgo should they become incompetent. Id. at
24
§§ 4600-4743. The attending physician is obligated to comply with those directions (or transfer the
25
patient to a provider who will) and, if she faithfully follows the law and her patient's directions, is
26
immune from all applicable criminal and civil statutes. Id. Indeed, the statute provides that "[d]eath
27
resulting from withholding or withdrawing health care in accordance with [the Health Care
28
Decisions Law] does not for any purpose constitute a suicide or homicide." Id. at § 4656.
-10Complaint for Declaratory and Injunctive Relief
36.
1
California also has enacted a statute requiring that information about end-oflife care
2
options be shared with patients who request it. Cal. Health and Safety Code §§ 442-442.7. Sections
3
442 through 442.7 make clear that it is the policy of this State that patients are to be empowered with
4
full and complete information to inform their own autonomous medical choices about end-of-life
5 '~ care.
6
37.
California courts have upheld the "fundamental right" of patients to make a range of
7
end-of-life decisions, including the removal of life support, and voluntary cessation of eating and
8
drinking. See, e.g., Bouvia v. Superior Court ofLos Angeles, 179 Ca1.App.3d 1127, 1137(1986)
~~
("Bouvia")("[A] patient has the right to refuse any medical treatment or medical service, even when
10
such treatment is labeled `furnishing nourishment and hydration.' This right exists even if its
11
exercise creates a `life threatening condition."')(citation omitted); see also Thor v. Superior Court o
12
Solano County, 5 Ca1.4th 725, 732(1993)("[A] competent,informed adult has a fundamental right
13
of self-determination to refuse or demand the withdrawal of medical treatment of any form
14
irrespective of the personal consequences ... in the absence of evidence demonstrating a threat to
15
institutional security or public safety, prison officials, including medical personnel, have no
16
affirmative duty to administer such treatment and may not deny a person incarcerated in state prison
17
this freedom of choice"); Bantling v. Superior Court ofLos Angeles,163 Ca1.App.3d 186, 193-94
18
(1984)("In California, `a person of adult years and in sound mind has the right, in the exercise of
19
control over his own body, to determine whether or not to submit to lawful medical treatment."')
20
(citation omitted).
21
38.
Respect for individual autonomy relies upon notions of personal dignity and quality
22
of life. For instance, the Health Care Decisions Law recognizes that the "prolongation of the process
23
of dying for a person for whom continued health care does not improve the prognosis for recovery
24
may violate patient dignity and cause unnecessary pain and suffering." Probate Code § 4650(b)
25
(referring specifically to the use of"modern medical technology" for the "artificial prolongation of
26
human life").
27
28
39.
Similarly, the Court of Appeals in Bouvia emphasized that the trial court in that case
"mistakenly attached undue importance to the amount of time possibly available to [the patient], and
-11Complaint for Declaratory and Injunctive Relief
1
failed to give equal weight and consideration for the quality of that life; an equal, if not more
2
significant, consideration." 179 Cal.App.3d at 1142. It went on: "All decisions permitting cessation
3
of medical treatment or life-support procedures to some degree hastened the arrival of death. In part,
4
at least, this was permitted because the quality of life during the time remaining in those cases had
5
been terribly diminished. In Elizabeth Bouvia's view, the quality of her life has been diminished to
6
the point of hopelessness, uselessness, unenjoyability and frustration." Id.
7
40.
The reasoning in these cases applies with equal force to aid in dying. Aid in dying
8
provides a mentally competent, terminally ill patient with the option of achieving a peaceful death if
9
the inexorable deterioration of bodily function and integrity is causing suffering to the patient that
10
she finds intolerable or degrades her personal dignity and indeed her very sense of personhood, or
11
both. In this situation, the patient has the right to decide whether suffering through the final ravages
12
wrought by terminal illness is worth enduring while awaiting imminent death. The California
13
Supreme Court has observed that "there is a body of law evolving that appears to respect a person's
14
choice of how and when to die." People v. Deere, 41 Cal. 3d 353(1985)(citation omitted). This
15
Court is called upon to clarify the rights of mentally competent, terminally ill patients regarding just
16
how much suffering they must endure before death arrives, and the intertwined right of physicians to
17
respect, in the exercise of their professional judgment, the wishes of their mentally competent,
18
terminally ill patients who request aid in dying.
19
FIRST CAUSE OF ACTION FOR PROHIBITORY INJUNCTION
20
(Cal. Code. Civ. Proc. § 525)
21
22
23
41.
Plaintiffs re-allege and incorporate by reference, as though fully set fot-th herein, the
allegations contained in Paragraphs 1 through 40, inclusive, of this Complaint.
42.
California's Assisted. Suicide Statute does not provide a statutory basis to prosecute
24
any licensed physician for providing aid in dying to a mentally competent, terminally ill patient
25
because the choice of such a patient for a peaceful death does not constitute "suicide" within the
26
meaning of the Statute.
27
28
43.
The Assisted Suicide Statute should be interpreted and applied so as to avoid conflict
with the California Constitution. If the Assisted Suicide Statute were interpreted or applied to
-12Complaint for Declaratory and Injunctive Relief
1
authorize Defendants to punish or prohibit physicians from providing assistance in dying to mentally
2
competent, terminally ill patients, the Statute would violate the constitutional rights of Plaintiffs to
3
privacy, Due Process, Equal Protection, and freedom of speech.
4
44.
The Assisted Suicide Statute does not expressly address aid in dying with sufficient
5
specificity to ban the legitimate medical practice. An example of a sufficiently specific prohibition
6
can be found under Arkansas law, which criminalizes "physician-assisted suicide," and expressly
7
applies to a "physician ... willfully prescribing any drug, compound, or substance for the express
8
purpose of assisting a patient to intentionally end the patient's life". Ark. Code § 5-10-106; compare
9
Arlc. Code § 5-10-104(a)(2)(banning assisted suicide generally, without assistance of physician).
10
45.
Statutes that lack explanatory language within the statutory scheme and that remain
11
unchanged over long periods of time should be examined to determine if they are meant to apply in
12
situations that were not before the legislature at the time of passage. Such is the case with
13
California's Assisted Suicide Statute, last modified by the State Legislature in 1905, when it was
14
merely re-numbered. The text of the Assisted Suicide Statute has not changed since its adoption by
15
the Legislature of 1873-1874. There is no evidence that either the Legislature of 1873-1874 or that
16
of 1905 considered the question of whether a physician who prescribed medication to a mentally
17
competent, terminally ill patient to enable the patient to achieve a peaceful death would be in
18
violation of the Statute.
19
46.
There is substantial uncertainty over the legal rights and responsibilities of the parties
20
as they relate to a physician who chooses to provide access to aid in dying to a mentally competent,
21
terminally ill individual.
22
47.
The potential for prosecution under California's Assisted Suicide Statute for
23
providing aid in dying harms Plaintiffs in that it impairs physicians' ability to provide adequate and
24
appropriate medical care to their patients. The potential for prosecution also harms patient Plaintiffs
25
Liner, Swangard and White in that it impairs their access to an end of life option that would bring
26 ~ them comfort and a means to avoid great suffering.
27
28
48.
Plaintiffs have a clear, present, and substantial right to seek the requested injunctive
relief, and have no plain, speedy, or adequate legal remedy.
-13Complaint for Declaratory and Injunctive Relief
1
SECOND CAUSE OF ACTION FOR DECLARATORY JUDGMENT
2
(Cal. Civ. Code § 1060)
3
4
5
49.
Plaintiffs re-allege and incorporate by reference, as though fully set forth herein, the
allegations contained in Paragraphs 1 through 48, inclusive, of this Complaint.
50.
California's Assisted Suicide Statute does not provide a statutory basis to prosecute
6
any licensed physician for providing aid in dying to a mentally competent, terminally ill patient
7
because the choice of such a patient for a peaceful death does not constitute "suicide" within the
8
meaning of the Statute. Furthermore, the Assisted Suicide Statute does not expressly address aid in
9
dying with sufficient specificity to ban the legitimate medical practice.
10
51.
The Assisted Suicide Statute should be interpreted and applied so as to avoid conflict
11
with the California Constitution. If interpreted or applied to prohibit or punish physicians from
12
providing assistance in dying to mentally competent, terminally ill patients, the Statute would violate
13
the constitutional rights of Plaintiffs, as alleged above and below.
14
52.
Plaintiffs have a clear, present, and substantial right to seek a declaratory judgment
15
from this Court clarifying their rights to engage in the medical practice of assisted dying. Plaintiffs
16
have no other plain, speedy, or adequate legal remedy for the harms they are presently caused by the
17
Assisted Suicide Statute.
18
THIRD CAUSE OF ACTION FOR VIOLATION OF THE CALIFORNIA CONSTITUTION
19
(Denial of Fundamental Constitutional Rights,
Including Right to Privacy, Cal. Const., Art. I § 1)
20
21
22
23
53.
Plaintiffs re-allege and incorporate by reference, as though fully set forth herein, the
allegations contained in Paragraphs 1 through 52, inclusive, of this Complaint.
54.
It is well established under California law that the rights to autonomy and privacy
24
guarantee that terminally ill, mentally competent individuals need not artificially suspend death or
25
undergo unwanted treatment to sustain life that is painful, dehumanizing, or against their will. The
26
California Constitution's guarantee of privacy similarly requires that terminally ill, mentally
27
competent persons have the autonomy and self-determination over their own bodies to choose a
28
peaceful death through aid in dying. See, e.g., Am. Acad. ofPediatrics v. Lungren, 16 Cal. at 332
-14Complaint for Declaratory and Injunctive Relief
1
(the right to choose whether to continue or to terminate a pregnancy implicates a woman's
2. fundamental interest in the preservation of her personal health [and] her interest in retaining personal
3
control over the integrity of her own body"); Planned Parenthood ofSanta Barbara v. Aakhus, 14
4
Cal. App. 4th 162, 170(Cal. 1993)("the right to decide whether or not to bear a child is a
5
fundamental constitutional right pursuant to the privacy guarantee of[the] California Constitution").
6
55.
If the term "suicide," as used in California's Assisted Suicide Statute, is interpreted to
7
reach the conduct of a mentally competent, terminally ill patient who requests and receives aid in
8
dying, then the Statute violates Plaintiffs' right to privacy under the California Constitution.
9
56.
If the term "suicide," as used in California's Assisted Suicide Statute, is interpreted to
10
reach the conduct of a mentally competent, terminally ill patient who requests and receives aid in
11
dying, then the Statute also violates the fundamental and inalienable rights to privacy, liberty and the
12
pursuit of safety and happiness, as guaranteed by the California Constitution, of patient Plaintiffs
13
Liner, Swangard and White as well as the physician Plaintiffs' patients who wish to have the option
14
of aid in dying.
15
FOURTH CAUSE OF ACTION FOR VIOLATION OF THE CALIFORNIA
CONSTITUTION
16
(Denial of Right to Equal Protection, Cal. Const., Art. I § 7)
17
18
19
20
57.
Plaintiffs re-allege and incorporate by reference, as though fully set forth herein, the
allegations contained in Paragraphs 1 through 56, inclusive, of this Complaint.
58.
If the term "suicide," as used in California's Assisted Suicide Statute, is interpreted to
21
reach the conduct of a physician providing aid in dying to a mentally competent, terminally ill
22
patient who requests it ,then the Statute discriminates against terminally ill patients who cannot
23
direct that life sustaining treatment be withdrawn to precipitate death or are ineligible for or do not
24
want terminal sedation, but seek aid in dying.
25
59.
If the term "suicide," as used in California's Assisted Suicide Statute, is interpreted to
26
reach the conduct of a physician who provides aid in dying, then the Statute deprives patient
27
Plaintiffs Liner, Swangard and White as well as the physician Plaintiffs' patients who wish to have
28
the option of aid in dying equal protection in violation of the California Constitution.
-15Complaint for Declaratory and Injunctive Relief
1
FIFTH CAUSE OF ACTION FOR VIOLATION OF THE CALIFORNIA CONSTITUTION
2
(Denial of Right to Free Speech, Cal. Const., Art. I § 2(a))
3
4
5
60.
Plaintiffs re-allege and incorporate by reference, as though fully set forth herein, the
allegations contained in Paragraphs 1 through 59, inclusive, of this Complaint.
61.
If the term "suicide," as used in California's Assisted Suicide Statute, is interpreted to
6
reach the conduct of a physician who provides aid in dying to a mentally competent, terminally ill
7
patient who requests it, then the Statute prohibits the physician Plaintiffs from communicating to
8
their patients what they believe, in the exercise of their professional judgment, to be an ethically and
9
medically appropriate end-of-life option, in violation of their rights offreedom of speech as
10
guaranteed by the California Constitution.
PRAYER FOR RELIEF
11
12
WHEREFORE,Plaintiffs pray for the following relief:
13
1.
Temporary and permanent injunctions prohibiting Defendants, their agents,
14
employees, representatives, and all those acting in concert with them,from prosecuting Plaintiffs for
15
seeking or providing aid-in-dying to amentally-competent, terminally-ill individual;
16
2.
A declaration that, for purposes of Penal Code Section 401, the term "suicide" does
17
not encompass the conduct of a terminally ill, mentally competent adult who requests and receives
18
aid in dying from a licensed physician;
19
3.
A declaration that, for purposes of Penal Code Section 401, the terms "aid," "advice,"
20
and "encouragement" do not include communications about aid in dying by a licensed physician to a
21
terminally ill, mentally competent adult patient, or the provision of such aid in dying, when the
22
physician determines in her professional judgment that in the context of the patient's diagnosis and
23
circumstances, the provision of assistance in dying is a reasonable and ethical treatment option;
24
4.
If the court finds that, for purposes of Penal Code Section 401, the term "suicide"
25
does reach the conduct of a physician who provides aid in dying to a mentally competent, terminally
26
ill adult who requests it, a declaration that Section 401 is in violation of Plaintiffs' rights under the
27
California Constitution to privacy, equal protection, free speech, and other fundamental rights;
28
5.
Costs of suit, including but not limited to attorneys' fees, and;
-16Complaint for Declaratory and Injunctive Relief
1
6.
Such further relief as the Court deems just and proper.
2
3
4
Dated: February 11, 2015
Respectfully Submitted,
BEVERIDGE &DIAMOND,P.C.
5
By,:.
icholas W. van Aelsty
everid~e &Diamond C
6
7
Kathryn L. Tucker
Disability Rights Legal Center
8
9
Attorneysfor Plaintiffs
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-17Complaintfor Declaratory and Injunctive Relief