California Compassionate Choices Act, AB 374, Passed by Assembly Judiciary Committee
By Frank D. Russo
Yesterday, on a strict party line vote,with all 7 Democrats supporting the measure and all 3 Republicans opposed, the Assembly Judiciary Committee passed AB 374, a bill described by its author as "the most important pro-choice bill in many years--The California Compassionate Choices Act."
The bill is based upon Oregon's successful Death with Dignity Act, approved in 1997. The Act allows to mentally capable, terminally ill adults, with six months or less to live to legally obtain and use prescriptions to end their suffering.
Passage came after a very emotional two hour hearing before a packed hearing room full of supporters and opponents of the bill. We are publishing today the testimony of one of the witnesses, Trudy Schaefer that had to be read by her daughter in support of AB 374.
While there was a lot of emotion, committee members also asked specific questions as they honed in on the provisions of the bill, how it would work, and how it compared with the Oregon law. The committee hearing can be viewed in the archives of the California Channel.
The author of the bill, Assemblymember Patty Berg delivered an elegant opening statement to the committee that set forth the critical issues for the proponents. She said:
This bill deals with a deeply personal choice available only to people who are dying of a terminal illness. it allows them to consider an option that a huge majority of Californians say they would like to have.
But, much more than the specifics of the options, AB374 is about our fundamental right to privacy -- a civil right that is expressed as a freedom to choose.
It is about the freedom of the individual to make choices – and the freedom for your choices to be different from my choices.
The question before you today is not whether you approve of a terminally ill patient hastening his or her death. It is about whether you will uphold our right to privacy, and whether you believe in the right of the individual to choose.
… as soon as we allow the fears of one group or the religious beliefs of another to constrain this particular right, we will find that other rights ultimately are in the crosshairs.
What the opposition wants is not protection, but really to issue an ultimatum that imposes their personal and religious beliefs on all of California. And if we can learn anything from history it is that we are imperiled when freedom is constrained, not when it is advanced.
The dividing line on the bill between Democrats and Republicans broke appears to be based on deeply and sincerely held personal views, much like that of the abortion debate. Religious beliefs surfaced during the hearing, with one Catholic priest telling those who support the measure that they were going to Hell.
Berg's framing, and that of supporters is based on choice and individual autonomy. While there were questions about practicalities of the bill and how it would work in practice, with opponents claiming it would allow for insurance companies and those who stand to benefit, having undue influence, Berg pointed out the layers upon layers of protection written into the bill, and the Oregon experience.
Conservative Republican Assemblyman Anthony Adams saw it as a preservation of life issue and one that he had a duty to impose his belief on others. He stated, "You better darn well believe I want to impose my morality on these people."
Sacramento physician Dr. Richard Ikeda, who cares for elderly, low income patients as medical director of Health For All community clinics, told the committee that California patients deserve better choices and that AB 374 would benefit all California terminal patients, “All patients regardless of income or status deserve the best medical care that our state can offer. Ethical medical care respects my patient’s personal decision-making at the end of their life. I believe that my patients deserve access to, and information about, all options for medical care, including aid in dying. My patients are poor, not stupid."
Assemblymember Berg pointed to the committee the safeguards written into AB 374, saying:
The bill has multiple layers of safeguards to ensure that it applies only those whose lives are already at an end. it is based on Oregon's Death with Dignity Act, which has proven itself sound and trustworthy for nine years.
The bill before you provides even more layers of protection and certainty than exist in the Oregon law. It has automatic triggers for a psychological or psychiatric evaluation; it ensures that patients get information on all available alternatives, in writing and of all the available alternatives in writing in their primary language; and it prevents family members or potential inheritors from playing any role at all.
Here are some of the protections written into AB 374:
1. The patient must be a terminally ill adult with six months or less to live.
2. The patient must be a resident of California.
3. The patient must make an informed decision. The patient’s attending physician must inform the patient of their medical diagnosis, prognosis, potential risks associated with taking the medication, the probable result of taking the medication, and provide in writing the feasible alternatives, including comfort care, hospice care, and pain control.
4. The patient cannot be coerced by next of kin or any third party. If any coercion is suspected, the patient will be prohibited from participating in the Act.
5. The patient must be evaluated by two physicians. A consulting physician must examine the patient and confirm the attending physician’s diagnosis and prognosis and that the patient is mentally capable, fully informed and acting voluntarily, free of coercion.
6. The patient must be mentally capable. Both physicians must verify that the patient is mentally capable of making and communicating health care decisions. If either physician suspects the patient's judgment may be impaired by medication or a psychiatric or psychological disorder, the patient must be referred to a licensed psychiatrist or psychologist for a psychological examination. If a patient is referred, then the process completely stops until the psychiatrist or psychologist has determined that the patient is mentally capable. If the patient is determined to not be mentally capable the patient will be denied the medication.
7. The patient must make two oral requests, and one written request for the prescription. The written request must be witnessed by two individuals who attest to the best of their knowledge and belief that the patient is competent, acting voluntarily, and not feeling any coercion to make the request.
8. There are two waiting periods. 15 days after the first oral request, at which time the written request can be made, and 48 hours after the second oral request and the writing of the prescription.
9. The patient can rescind their request at any time.
10. The patient must self-administer the prescription. No one else can administer the medication to the patient.
11. Physicians may refuse to participate with the Act. No doctor would ever be required to participate in the process in any way.
12. Anyone who violates the provisions of the Act will be prosecuted. The language of the Act provides that anyone who engages in illegal behavior is subject to punishment for a crime to the full extent of the law.
13. Both physicians must submit detailed reports to the Department of Health Services.
The Oregon Death with Dignity Act was a citizens' initiative passed twice by Oregon voters. The first time was in a general election in November 1994 when it passed by a margin of 51% to 49%. An injunction delayed implementation of the Act until it was lifted on October 27, 1997. In November 1997, a measure was placed on the general election ballot to repeal the Act. Voters chose to retain the Act by a margin of 60% to 40%.
Polls, including the California Field Poll have shown wide and consistent support in California for the approach of AB 374, including a Field Poll last year http://www.caforaidindying.org/pdf/FieldPoll06.pdf which reported that:
Over the twenty-seven years that The Field Poll has been tracking public sentiment on the issue of doctor-assisted suicide, a large majority of Californians have consistently endorsed the concept.
In a statewide survey completed last month, 70% of all adults and 69% of registered voters believe that incurably ill patients should have the right to ask for and get life-ending medication.
In the last session of the California legislature, AB 651, http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_0651-0700/ab_651_bill_20... with similar provisions, failed in the California Senate Judiciary Committee by one vote. http://www.californiaprogressreport.com/2006/06/california_comp.html
The measure faces strong opposition by the Catholic Church as it did last year. Despite the opposition of the church, the Field poll mentioned above showed a majority of Catholics support the concepts of the bill.
The next step for AB 374 is the Assembly Appropriations Committee for what is supposed to be a fiscal and not a policy review. However, there is likely to be a similar division along party lines. The bill must pass the Appropriations Committee by June 1 and the Assembly Floor by June 8 to be able to get to the Senate in time to be considered for final passage this year.
Its chances are excellent given the coauthors and support from Democratic leadership in both houses. AB 374 lists as an author, in addition to Berg, the Speaker of the Assembly. Fabian Nunez, and the Majority Leader in the Senate, Gloria Romero. A wide coalition or organizations and individuals support compassionate care and will be lobbying for its passage.