In 2017, Andrew Flack, a special education teacher in San Diego, was diagnosed with colorectal cancer. He was 29. Once it became clear that the cancer was terminal, his doctor told him about medical aid in dying.
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“I felt scared, because learning about it meant I was having to face the reality of my terminal illness,” he wrote in December 2021. “But I also felt a sense of relief. It sounds odd, but I had a great sense of relief knowing that this was an option for me.”
Eventually, Flack became an advocate for medical aid in dying (MAID), and while he didn’t want to be in the position to chronicle his situation, he was good at it. He was charming and curious and inspiring on his podcast and his blog, which he called The California Kid.
If you’ve been paying attention the past few years, it won’t surprise you that Flack also found himself pulled into the culture war, in which many of the same figures responsible for overturning Roe v. Wade have also been trying to regulate behavior at the other side of life.
In California, there’s a court case playing out this year that may threaten the California End of Life Option Act (Senate Bill 380), the medical-aid-in-dying law that’s been active since 2016. A group called Christian Medical & Dental Associations (CMDA) filed a federal suit in February 2022 on the grounds that it opposes “the practice of assisted suicide based on [its] personal religious convictions and professional ethics.”
These doctors and dentists say that SB 380 infringes on their freedom of speech, free exercise of religion, due process, and equal protection. Their argument hinges on whether or not they are compelled by law to prescribe aid-in-dying drugs to patients. As with the abortion issue, the case comes down to personal rights: who’s got them, who should have them, and whose are infringing on whose.
In other words, it comes down to control.
“It’s about bodily autonomy,” says Jess Pezley, a senior staff attorney with Compassion & Choices, a national organization that works on all sorts of end-of-life issues. “And it’s ultimately about, How can people live their lives? And do they have autonomy over how they live their lives?”
In May, Compassion & Choices filed a motion to intervene against the suit on behalf of several people likely to be affected if the End of Life Option Act is repealed. Flack, who had been working as an advocate with Compassion & Choices, became one of the faces of this legal struggle.
The CMDA is represented by the Alliance Defending Freedom (ADF), a group dedicated to a grab bag of conservative causes, including ending abortion, and what the group calls “God’s created order for marriage, the family, and human sexuality.” (The ADF is in the news this week with the Supreme Court deciding on the rights of a Christian website designer’s refusal to work on same-sex couples’ weddings.)
It might seem weird for an organization whose stated purpose is defending freedom to get in the way of terminally ill people wanting the freedom to decide the terms of their own deaths, but, as Pezley explains, “their bigger-picture goal is to overturn medical-aid-and-dying laws, because they fundamentally disagree with it. So while this challenge might be kind of specific, that’s their end game.”
The CMDA argues that noting in a patient’s file that the patient made an oral request for end-of-life medications, which a doctor is required to do, constitutes participation in the process, even if the doctor refuses to prescribe the drugs. Compassion & Choices counters that “every aspect of medical aid in dying is voluntary, including physician participation. Non-participating physicians must merely abide by their professional obligations and meet the minimum standards of medical care.”
“I don’t think it’s necessarily a bad thing that physicians can say, ‘I religiously object to providing this specific treatment and so therefore I’m not going to,’” says Pezley, “but I think that is a very, very different thing than saying, ‘I’m not going to do basic professional obligations that are related to the minimum standard of care for medical practice because it’s tangentially related to this thing that I disagree with.’”
In California, as in other states, people who qualify for the End of Life Option must be physically and mentally capable legal adults who have six months or less to live. To obtain the aid-in-dying drugs, they have to make two oral requests to a physician at least 48 hours apart. (Before 2021, the waiting period was 15 days.) The patient will then be prescribed a drug that they can self-administer, which first puts them into a coma and then stops their heart. The ADF argues that medical aid in dying “puts vulnerable people’s lives at risk,” an incongruity that overlooks that these are people who are already dying.
California is one of 11 states with medical-aid-in-dying laws—another 14 have pending legislation. Proponents of these laws think that MAID empowers the dying and their families and helps end the pain and indignity of a wasting, terminal disease.
In July, the California Department of Public Health issued a report on who took advantage of the law in 2021: “Of the 772 individuals who were prescribed such drugs, 448 individuals, or 58.0 percent, were reported by their physician to have died following ingestion of aid-in-dying drugs prescribed under the Act; and 130 individuals, or 16.8 percent, died from the underlying illness or other causes.” (The department didn’t have reporting on the other 25 percent.)
In the court of public opinion, opposing the right to die may be an uphill battle. The ADF itself opened a 2022 white paper on the topic by acknowledging that “a 2017 Gallup poll found that a solid majority of Americans, with 73 percent in favor, support laws allowing patients to seek the assistance of a physician in ending their lives.” As with other issues, the majority’s preference for having a legal option is apparently not as relevant as the dictates of Christian-adjacent ideology.
Despite public opinion, the ADF’s cause may be succeeding in courts. A few months ago, the CMDA scored a partial win.
At the beginning of September, U.S. district judge Fernando L. Aenlle-Rocha, a 2019 Trump appointee who serves a jurisdiction that includes Los Angeles, ruled partly in favor of the CMDA, issuing a preliminary injunction, which means, for now, that the doctors involved in the suit can refuse to document requests.
“What’s concerning here is that this ruling could then be used to support the idea that a physician could refuse to document anything they think that a patient can later rely on to seek treatment that conflicts with the physician’s beliefs,” says Pezley, “and that could be reproductive or gender-affirming care. And so what’s the end point?”
On November 21, the court declined to vacate its earlier order, and the injunction stands. And so, for now, does the law. It’s perhaps a quieter front of the culture war than others, but depending on which way it goes, it may end up shaping fundamental rights of medical care and personal freedom for Californians.
Andrew Flack died on November 16, five days before the latest court decision. He was 34 years old. Surrounded by family, he went, as he’d hoped, on his own terms.•