On September 2nd, NDY was part of a disability release responding to a federal court case in the Northern District of California. Plaintiffs in the case argue that the ADA requires active euthanasia as a reasonable accommodation for some people to use the state’s assisted suicide law (End of Life Options Act, EOLOA). Their complaint states in paragraph 2:
[T]here is one group of Californians who cannot avail themselves of the benefits of this compassionate law: physically disabled individuals whose disability prevents them from self-administering the AID medication without assistance. Because the EOLOA requires patients to self-administer AID drugs and prohibits any assistance, patients whose disability hinders their hand strength or mobility are excluded from this State program. (Lonny Shavelson, M.D. et al. v. California Dept. of Health Services, et al., Case 3:21-cv-06654-VC, filed August 27, 2021)
The joint disability and patients rights organization statements by DREDF, NCIL, United Spinal, NDY, AAPD, Access Living and Patients Rights Action Fund came just days after the complaint was filed in California, where assisted suicide has been legal since June 2016.
Plaintiffs in the case include four doctors and two patients, the latter a woman with ALS and another with multiple sclerosis. Sandra Morris, the woman with ALS, stated in court documents:
I do not want to ingest the AID medications at present because I still am enjoying time with my loved ones. But unless the Court allows it otherwise, I will have to leave this world earlier than I want to, because I have to be able to swallow the medication or use my thumb to press that medication into my body. Today, I still have the use of my right thumb and my left hand, and I still have the ability to swallow and move my neck in a limited manner. But I know that I won’t have that ability—likely within a month or so.
The woman with MS expressed similar concerns about losing the ability to self administer lethal drugs.
As someone who co-directed an assistive technology center for six years, I think that the dilemma these women express is perhaps largely based on ignorance of technologies that would allow them to execute the final step in an assisted suicide. Not to mention the other methods of ending one’s life, including for people who cannot move even a thumb. So the case really amounts to a dramatized and gut-wrenching presentation of a false dilemma designed to move people to accept a justification for legalizing active medical euthanasia. We should not be fooled and, fortunately so far, the court did not buy it.
On September 14, plaintiffs filed a motion for a temporary restraining order and preliminary injunction demanding that these women be granted euthanasia in the future so that they would not have to use the assisted suicide law as soon at the following Tuesday. They invoked the Americans with Disabilities Act (ADA) as follows:
The EOLOA also provides that “[a] person who is present may, without civil or criminal liability, assist the qualified individual by preparing the aid-in-dying drug so long as the person does not assist the qualified person in ingesting the aid- in-dying drug.” Id. at § 443.14 (emphasis added). [Motion, p. 7]
Because the EOLOA prohibits assistance with ingesting AID medication, the benefits of the EOLOA are inaccessible to physically disabled terminally ill persons whose disability, as with Ms. Morris and Ms. Doe in the very near future, thwarts ingestion without assistance. Accordingly, the assistance provision violates the ADA. [Motion, p. 13]
Despite plaintiff’s emotional appeal, fortunately the District Court denied the motion on September 20. Here are some excerpts from the ADA analysis in the ruling:
The plaintiffs say they are seeking a “reasonable accommodation” to ensure that they can reap the benefits of the End of Life Option Act. But the plaintiffs have identified a “systemic barrier” to participation in the program—specifically, the prohibition on participation for people who are physically unable to administer the medication themselves. … The question in a case like this is whether the ADA requires California to modify its program to address the disparate impact on people like the plaintiffs, or whether such a modification would “fundamentally alter” the program—in which case the ADA would not require the modification the plaintiffs seek.” [Denial Order, p.2-3]
And on the issue of valid concerns about making such a fundamental alteration:
[I]n drafting the Act, the Legislature balanced that objective [to control the timing of one’s death] against its goal of protecting against the possibility of someone’s life being ended without their full consent. …
And most relevant here, the Legislature drew a clear line between assisted suicide and euthanasia, providing that a terminally ill person cannot obtain a prescription unless they can administer the medication themselves and specifying that there is no immunity from criminal or civil liability for someone who administers the medication to a terminally ill person. These provisions reflect a legislative concern that some people may feel truly committed to ending their lives but will ultimately change their minds. [Denial Order, p.3-4]
Of course, we also keep urging people to recognize the ADA violation inherent in assisted suicide laws, which set up a two-tiered system for providing suicide prevention for some people and suicide assistance for others, depending on one’s health and disability. For more on that, see my old ADA violation blog. But for now, the Court’s Order provides some welcome relief.
The next steps in the case are:
- Plaintiffs will file a First Amended Complaint (“FAC”) no later than November 15, 2021;
- Defendants will file a response to the FAC within 60 days of the filing of the FAC. [Note from Claudia: This will certainly be a motion to dismiss); and
- Case management conference with judge will be 1/12/2022 at 2:00 pm.
