Appeal to High Court Certain, Lawyers and Doctors Say

This story was reported by Times staff writers Bettina Boxall, Henry Weinstein, David Savage and Kim Murphy. It was written by Weinstein

The day after a landmark court decision approving physician-assisted suicide, attorneys and law professors predicted that the matter will almost certainly find its way to the U.S. Supreme Court.

Some analysts expressed confidence that the Supreme Court will reverse the momentous ruling, but others said the issue is too close to call.

As news of the ruling spread up and down the West Coast, families who have struggled with the issue of assisted suicide called right-to-die advocacy groups with elation in their voices. The decision had validated their feelings: They had finally been heard and understood.

"I feel a great deal of relief," said Patrick Carter, 50, of North Hollywood, who has liver cancer. "Now I don't have to do the guesswork, put someone else in a situation where they would be liable for anything, and I would be able to end my pain and suffering with ease."

A counselor in Northern California suggested that far from encouraging such people to rush into a suicide decision, the ruling has given them a sense of freedom. "Now that they know they can, they can slow down," she said.

Officials in Washington--where a state law making physician-assisted suicide a felony was ruled unconstitutional by the U.S. 9th Circuit Court of Appeals on Wednesday--have 90 days in which to file a petition with the Supreme Court requesting a review. In the interim, Washington has 21 days to ask a high court justice for a stay.

A spokesman for the Washington attorney general said he expected no decision on either course of action until next week. However, it is anticipated that the state will be lobbied heavily to appeal to the Supreme Court because of the social controversy the decision has engendered.

"I think Washington will come under a lot of pressure to seek Supreme Court review," said Thomas J. Marzen, an attorney with the National Legal Center for the Medically Dependent and Disabled, which filed a friend of the court brief in support of the Washington statute. "The 9th Circuit managed to offend a whole range of groups, religious and otherwise."

Thirty-three states--including California--have statutes prohibiting assisted suicides and nearly a dozen others have outlawed the practice by case law.

Attorneys who represent California doctors said they would urge any physician client who asks for advice to move slowly before going public with the fact that they are engaged in assisted suicides. In addition to being immediately effective in Washington, the 9th Circuit ruling is now applicable in eight other western states, including California.

"Even though we have this decision, which I very much favor, its implementation has not been developed," said Griffith D. Thomas, an Encino attorney who is also a doctor. "I would say, 'Anything you do, do it very carefully.' You have to evaluate a patient, make sure he's terminal and if that's what he really wants. Physicians have been doing this for centuries [assisting suicides], but they don't publicize it."

Mark E. Field, a Los Angeles lawyer representing Dr. Jack Kevorkian in a constitutional challenge to California's law making assisted suicide a felony, took a similar approach. "As a cautious lawyer, I would advise a physician today to hold off for a couple days until we can get a formal opinion from the California attorney general's office" about the state law, Field said.

It appeared doubtful Thursday that the California attorney general's office would immediately cease its defense of this state's law. Atty. Gen. Dan Lungren said he was appalled, dismayed and shocked by the 9th Circuit's decision.

"If this is not an example of judicial legislation of the most extreme kind I don't know what is," he said. "They've overturned 200 years of American jurisprudence and 2000 years of our Western cultural ethic with respect to the question of life."

Noting that California's law is virtually identical to Washington's, Lungren said the state will "do everything we can" to help Washington overturn Wednesday's ruling.

The Los Angeles County district attorney's office declined to comment, pending further study, on how the appeals court ruling might affect the felony charge that prosecutors filed in December against a man accused of helping his lover commit suicide.

Keith W. Green of Los Angeles is charged with violating the state law making it a felony to advise, aid or encourage someone to commit suicide. He allegedly helped James Northcutt, who was terminally ill with AIDS, kill himself with carbon monoxide from a car in Northcutt's garage. A preliminary hearing in the case is scheduled for April 8.

Green's lawyer, Bruce Robertson, said Thursday that he hoped the appeals court ruling would prompt Garcetti to drop the case. "It seems to me the 9th Circuit has spoken loudly on this issue," he said.

In addition to physicians, the appeals court ruling affords legal protection to pharmacists, families and other people who assist terminally ill, competent adults in ending their lives.

If the experts are right and the case gets to the Supreme Court, the "right to die" issue will almost surely plunge the high court into its most agonized and momentous debate since the abortion battle, a controversy that split the justices for nearly 20 years.

The outcome will probably depend on the two moderate conservatives, Justices Sandra Day O'Connor and Anthony M. Kennedy. The justices have little choice but to review the ruling by the 9th Circuit because of its sweeping nature, analysts say.

But predicting the outcome is treacherous.

On the one hand, the court's Roe vs. Wade decision, guaranteeing a broad right to abortion, created a strong precedent for upholding a right to die. After all, scholars said, if the Constitution allows a woman to ask her doctor to end the life of a fetus--an innocent third party, as some advocates say--then it would make sense to say a terminally ill adult has a right to ask her doctor to end her life.

Indeed, 9th Circuit Judge Stephen Reinhardt said there were "compelling similarities" between the abortion and right-to-die issues in his majority opinion.

On the other hand, Roe vs. Wade has been the most condemned ruling of recent decades. Even many liberal-leaning justices believe that the court made a grave mistake in issuing a sweeping decision in 1973 that deemed abortion as a "fundamental right."

Three members of the court are considered sure votes to reverse the 9th Circuit Court ruling. They are Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. They have repeatedly denounced judges who create "new rights" in the Constitution and use them to strike down state laws.

Notre Dame University law professor Douglas Kmiec, a critic of the abortion rights decisions, believes O'Connor and Kennedy will join with their fellow conservatives to reject the "right to die."

Harvard law professor Laurence H. Tribe disagrees and says "the prospects are quite good" that O'Connor and Kennedy will join a liberal majority to uphold the right.

But O'Connor is notorious for writing cautious opinions that split the middle. For example, she strongly criticized the Roe vs. Wade ruling and she repeatedly upheld abortion regulations. But in the end, she and Kennedy refused to overturn the abortion right entirely in the 1992 case Planned Parenthood vs. Casey. States may regulate and discourage abortion, but not ban it, she concluded.

Meanwhile, lawyers in Oregon moved Thursday to file an appeal seeking to reinstate an Oregon law that would for the first time allow physicians to prescribe lethal overdoses to dying patients. In 1994, Oregon became the first state to authorize physician-assisted suicide when 51% of voters approved a ballot measure.

Proponents of the Oregon statute, including the state attorney general's office, said they will seek to lift an earlier federal district court injunction barring the implementation of Oregon's far-reaching law.

Oregon already has the kind of guidelines legislation being debated in California, Washington and other states, specifically authorizing doctors to prescribe lethal medications to patients who have been deemed medically competent, who assert their wish in the presence of two witnesses, and who have their request endorsed by a second physician.

Among families who have a stake in assisted suicide, there was glee and uncertainty.

"I think it's done a remarkable thing," Charlotte Ross, executive director of the Death With Dignity advocacy group in San Mateo, said of the court opinion. "These people no longer feel like the extremist, the oddball."

At the same time, Ross said callers were uncertain of the decision's impact. "We've had a number of inquiries. People are saying, 'What does this mean?' Because there is some confusion."

The organization tells them it will take weeks to implement the ruling. "It's really a beginning more than an end," Ross said. "There are not established procedures. There are not established policies."

Dr. Fred Marcus, a Redwood City oncologist who is on the board of Ross' group, said about a fifth of the patients he saw Thursday mentioned the ruling, wondering when it would go into effect.

"All patients with advanced disease have this on their mind," Marcus said. Those who talked about the decision, he said, "had a sense of relief that finally the law was on their side."

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