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) Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=5917