Judge: Doctors don’t have standing to challenge aided suicide law

A group of physicians do not have standing to challenge an elective-suicide provision which allows some terminally ill adult Californians to end their lives peacefully because they don't represent a patient who challenges the law, a Riverside County judge ruled.

Also the Legislature did not violate the state Constitution when it passed the End of Life Option Act during a special session, Superior Court Judge Irma Asberry ruled. Ahn v. Hestrin, RIC1607135 (R.C. S.C. Filed June 8, 2016).

"It was reasonable for the Legislature to conclude that aid-in-dying legislation concerns a subject germane to improving the effective delivery of health care services to benefit Californians, thus not enacted in violation of the Constitution," Asberry wrote in her five-page order on Jan. 23. The physicians' complaint fails "to allege sufficient facts showing third party, personal or public interest or taxpayer standing," primarily because they had not been personally damaged by the defendants' conduct, the judge wrote.

The doctors sued Riverside County District Attorney Michael Hestrin to stop him from enforcing the law. But a team of attorneys from O'Melveny & Myers LLP including partner John Kappos, counsel Bo Moon, and associates Jason Orr, Amanda Hoffman, and Mark Hayden intervened as a defendant, representing Compassion & Choices, an advocacy group supporting right-to-die legislation and infrastructure across the nation.

"While earlier in the case we filed a motion to vacate the judgment, which was denied, we were successful in our first attempt to intervene in the case on behalf of our two terminally ill adults," said the group's spokesman, Sean Crowley. "On May 7, 2019, Compassion & Choices filed a motion to intervene, asking the trial court to allow us to be a formal party to the case. On July 5, 2019, the court granted our motion to intervene on behalf of real parties in interest Andrea Saltzman and Matthew Fairchild, two terminally ill Californians."

A hearing scheduled for Feb. 4 will determine whether the physician plaintiffs can file a second amended complaint.

Kappos said of the ruling, and the plaintiffs' efforts at a second attempt, "I'm not planning on combating that. ... We're not challenging standing" noting that the state attorney general would address that issue.

"The judge gave them a very narrow window to establish standing," Kappos added. While the court sided with Kappos on the fundamental merits of the 2016 legislation, two outstanding grounds remain, which he noted could play out in further litigation.

"The only way she suggested they could achieve standing was if they have a patient who does not want medical aid in dying but is being coerced into it by say, a family member," Kappos said of the judge.

For now, the End of Life Option Act, "is in full force and effect in California, and this ruling did not change that," Kappos said, adding that he believes the judge's decision only cast more doubt about whether the legislation will ever be meaningfully opposed.

"This is all an issue of your own choice to do what's right for you. ... We feel that other folks in California should not be able to tell you that you have to die in pain."

Neither the physicians group nor their counsel could be reached for comment Tuesday.