You're asking this court to make new law. If new law is made it should be by the Legislature or by a ballot measure. —San Diego Superior Court Judge Gregory Pollack
SAN DIEGO — A judge strongly indicated Friday he will dismiss a lawsuit against the state by a single mom given only months to live and other California right-to-die advocates who want doctors to be allowed to prescribe fatal medication for terminally ill people.
During a hearing in which two of the plaintiffs broke down in tears, San Diego Superior Court Judge Gregory Pollack said the court is not the place to change the current law that prohibits physicians from prescribing such drugs and that he would issue a written decision Monday.
The lawsuit was brought against the state by Christy O'Donnell, two other terminally ill California residents and a San Diego doctor. Attorneys on both sides agreed that dismissal was certain, and the plaintiffs vowed to appeal.
O'Donnell, who turned 47 on Friday, has been diagnosed with Stage IV cancer of the left lung, which has spread to her brain, liver, spine and rib. The Santa Clarita woman said she will likely not live through the appeals process.
"For any judge, or anyone, or any law or legislator to tell me that my daughter has to watch me die painfully — that's wrong," said O'Donnell, crying after the hearing.
Pollack did not formally rule Friday but told the court that he did not have the power to declare the statute as unconstitutional.
"You're asking this court to make new law," Pollack said. "If new law is made it should be by the Legislature or by a ballot measure."
The judge said the parties probably could get "new law" from a higher court "but you can't get it from a lower level Superior Court judge like me.'"
At the end of the hearing, O'Donnell and Elizabeth Wellner, of Sacramento, stood up and asked to speak to the judge. Wellner told him the slow death allowed by current law is equivalent to "torture."
Under California law, suicide is legal. Doctors are also allowed at a patient's request to sedate the person and withdraw nourishment and further medical treatment until they die. Attorneys for the plaintiffs had argued that is the same as prescribing life-ending drugs that can be self-administered when the suffering becomes unbearable.
Pollack said he disagreed and that courts have made a clear distinction between letting someone die and making someone die.
The plaintiffs are backed by Compassion and Choices, an advocacy group that has supported legislative efforts and similar lawsuits in various states.
Some advocates say they thought the nationally publicized case of Brittany Maynard, the 29-year-old California woman with brain cancer who moved to Oregon to legally end her life last fall, might usher in a wave of state laws allowing doctors to prescribe life-ending medications but that hasn't happened.
In California, a bill that would allow such prescriptions stalled. Similar legislation failed in 2007 amid religious opposition.
Tim Rosales, a spokesman for California Coalition Against Assisted Suicide, said the lawsuits show right-to-die advocates are getting desperate after the setbacks. He said people, especially those with low income, may turn to fatal medication to end their lives not because of suffering but because it's the cheapest health care option and they no longer want to be a burden.
"There have been a lot of red flags and concerns raised in bipartisan fashion, not only in California, but across the country against this," he said.
The lawsuit asks that the court impose an injunction on the current law, declaring it unconstitutional as applied to doctors. The plaintiffs asked for an expedited process because of their deteriorating health.
Voters approved doctor-prescribed fatal medication for the terminally ill in Oregon and Washington in ballot measures, while the Vermont legislature passed a right-to-die law.
In other states, the courts have stepped in. The Montana Supreme Court ruled in 2009 that nothing in state law prohibits physicians from giving aid in dying and that doctors could use a patient's request for the medication as a defense against any criminal charges.
Last year, a New Mexico judge made a similar ruling that is pending appeal. Another right-to-die lawsuit has been filed in Tennessee.