A county judge strongly indicated Friday he will dismiss a lawsuit against the state by a single mom given only months to live and other California right-to-die advocates who want doctors to be allowed to prescribe fatal medication for terminally ill people who want it.
During a hearing, San Diego Superior Court Judge Gregory Pollack said his court was not the place for the issue but did not formally rule, saying he would issue a written decision Monday.
"You're asking this court to make new law," Pollack said. "If new law is made it should be by the Legislature or by a ballot measure."
The judge said the parties probably could get "new law" from a higher court "but you can't get it from a lower level Superior Court judge like me.'"
Attorneys on both sides agreed that dismissal was certain.
"This is something that needs to be addressed not by the court but is more appropriate for the Legislature," said Darin Wessel, among district attorney teams from various counties that were part of the effort to seek dismissal.
The lawsuit was brought against the state by Christy O'Donnell, two other terminally ill Californians and a San Diego doctor. The plaintiffs are backed by Compassion and Choices, an advocacy group that has supported legislative efforts and similar lawsuits in various states.
Some advocates say they thought the nationally publicized case of Brittany Maynard, the 29-year-old California woman with brain cancer who moved to Oregon to legally end her life last fall, might usher in a wave of state laws allowing doctors to prescribe life-ending medications. But no states have passed right-to-die legislation since Maynard's death in 2014, and efforts have been defeated or stalled in several.
In California, a Catholic Church campaign helped stall an assisted suicide bill this month. Similar legislation failed in 2007 amid religious opposition.
Tim Rosales, a spokesman for California Coalition Against Assisted Suicide, said the lawsuits show right-to-die advocates are getting desperate after the setbacks. He said people, especially those with low income, may turn to fatal medication to end their lives not because of suffering but because it's the cheapest health care option and they no longer want to be a burden.
"There have been a lot of red flags and concerns raised in bipartisan fashion, not only in California, but across the country against this," he said.
The lawsuit asks that the court impose an injunction on the current law, declaring it unconstitutional as applied to doctors who prescribe fatal medication for mentally competent, terminally ill adults who can administer it themselves when the suffering become unbearable. The plaintiffs asked for an expedited process because of their deteriorating health.
O'Donnell, who turns 47 on Friday, has been diagnosed with Stage IV cancer of the left lung, which has spread to her brain, liver, spine and rib. The Santa Clarita woman said she cannot tolerate morphine.
"I'm facing a very painful, protracted death if the law is not changed," O'Donnell said in an interview prior to the hearing. "I'm still hopeful. I've not given up on the legislation, and potentially it could still be introduced this term. But I brought the lawsuit because I know how long the legislative process is, and it's highly unlikely I will live to see it through to the end, and I'm certainly not going to live long enough to see aid in dying get passed on a ballot measure, so the lawsuit will be my last chance."
Voters approved the right to die for the terminally ill in Oregon and Washington in ballot measures, while the Vermont legislature passed a right-to-die law. In other states, the courts have stepped in. The Montana Supreme Court ruled in 2009 that nothing in state law prohibits physicians from giving aid in dying and that doctors could use a patient's request for the medication as a defense against any criminal charges.
Last year, a New Mexico judge made a similar ruling that is pending appeal. Another right-to-die lawsuit has been filed in Tennessee.
