X-Message-Number: 5917
Date: Tue, 12 Mar 1996 10:31:19 -0700 (MST)
From:  (David Brandt-Erichsen)
Subject: Ninth Circuit Court ruling

The following is excerpted and adapted from a 3200-word article on Right to
Die Legislation which I just submitted for the next Cryonics magazine.  The
entire Ninth Circuit Court decision (over 100 pages long) is available at
<http://www.rights.org/deathnet/ergo.html>.

On March 6, 1996, the Ninth Circuit Court of Appeals ruled that it is
unconstitutional for any law to prohibit a physician from prescribing
life-ending medication for use by terminally ill, competent adults who wish
to hasten their own deaths.  As of that date, such physician-assisted
suicide became legal in all states within the Ninth District:  Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.  
The Court ruling also stated:  "We would add that those whose services are
essential to help the terminally ill patient obtain and take that medication
and who act under the supervision or direction of a physician are
necessarily covered by our ruling.  That includes the pharmacist who fills
the prescription; the health care worker who facilitates the process; the
family member or loved one who opens the bottle, places the pills in the
patient's hand, advises him how many pills to take, and provides the
necessary tea, water or other liquids; or the persons who help the patient
to his death bed and provide the love and comfort so essential to a peaceful
death."

The Ninth Circuit ruling also stated that "state laws or regulations
governing physician-assisted suicide are both necessary and desirable to
ensure against errors and abuse, and to protect legitimate state interests,"
citing Oregon's Death with Dignity Act as an example.  Examples of
appropriate regulations cited were the requirement of witnesses to ensure
voluntariness, reasonable but short waiting periods to prevent rash
decisions, a second medical opinion to confirm terminal status,
psychological examinations to ensure that the patient is not suffering from
momentary or treatable depression, and appropriate reporting procedures.

The state of Washington has 90 days in which to decide whether or not to
appeal to the Supreme Court (they have not yet decided).  During such
appeal, the ruling would remain in effect unless the Supreme Court issues a
stay against the ruling (a rare event).  Another very important factor in
the eventual outcome is another case on the same subject before the Second
Circuit Court of Appeals, a case regarding a New York law banning assisted
suicide.  A ruling is expected at any time.  If this ruling goes in the
opposite direction, the matter will almost certainly be heard by the Supreme
Court to resolve the conflict.  If the ruling goes the same way, it may or
may not go to the Supreme Court.

The Oregon Death with Dignity Act (Measure 16) was blocked the day before it
was scheduled to go into effect in December, 1994, by an injunction granted
by District Court Judge Michael Hogan.  This case is still to be heard by
the Ninth Circuit, but the March 6 ruling stated that "Judge Hogan clearly
erred" and his finding "is directly contrary to our holding."  This
certainly gives an indication on how the Ninth Circuit is likely to rule.
In view of the March 6 ruling, supporters of Measure 16 filed an emergency
motion on March 7 asking that Judge Hogan's injunction blocking the law be
lifted.  They hope that this matter will be ruled on within a couple of
weeks.  If the injunction were lifted, the law would become effective 30
days later.  The opposition will do everything they can to appeal the Oregon
case to the Supreme Court.

Although physician-assisted suicide is now legal in nine states, none of
those states have any regulations to govern the process (Oregon may become
the first if Measure 16 goes into effect).  It is also unknown at this time
whether or not the issue will go to the Supreme Court.  Therefore, those who
wish to exercise their rights under the Ninth Circuit ruling face an
uncertain legal environment.  At the very least, such persons should follow
the guidelines in Measure 16 to avoid criticisms that adequate safeguards
were not followed.  Competent legal counsel should also be sought.  Trying
to do a cryonic suspension under controlled circumstances in such an
uncertain legal environment would be a risky endeavor, incurring the risk of
large legal expenses and possibly even autopsy.  Although it won't happen
immediately, there is now considerable hope that we will see the first

cryonic suspension under controlled circumstances within the foreseeable future.

 (David Brandt-Erichsen)


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