From Cryonics, October 1991

The following is an abbreviated version of of the appellate brief on behalf of Thomas Donaldson and Alcor, written by attorneys Chistopher Ashwoth and David B. Epstein.

See also the appellate court decision, case background, and case abstract

I.
ISSUES PRESENTED

Whether or not appellant Donaldson has the right, arising under California’s right to privacy, to procure the assistance of others in the commission of a suicide, where, as here, a cancerous brain tumor condemns Donaldson to a painful and degrading end-of-life in the ordinary course.

Whether under California’s right to privacy appellant Donaldson has the right to be cryonically suspended (frozen) premortem where an existing illness promises to destroy so much brain tissue as to make such cryonic suspension fruitless if Donaldson is required to await his “natural” death.

Whether appellants (Mondragon and Donaldson) have the Constitutional right to give and receive advice and encouragement in respect of a suicide under California Constitution Article I, Section 2 and the United States Constitution, Amendment I.

II.
STATEMENT OF THE CASE

Procedurally this case is easy to describe. On April 30, 1990, appellant Donaldson filed an action in the Superior Court in Santa Barbara County seeking declaratory relief in respect of his right to an assisted suicide/premortem cryonic suspension. The Attorney General and a number of other public officials were named as party defendants. Defendant VandeKamp filed a demurrer which was joined by all of the other defendants. On September 14, 1990, the Honorable Ronald W. Stevens, Judge of the Superior Court, sustained the Attorney General’s demurrer and granted plaintiff thirty days to amend. Thereafter, Donaldson (now joined by plaintiff Mondragon) filed a First Amended Complaint for Declaratory Relief on October 15, 1990. In due course, the Attorney General (again joined by all other parties defendant) demurred to the First Amended Complaint. On December 14, 1990, the Honorable Ronald Stevens sustained the defendants’ demurrer to the First Amended Complaint without leave to amend.

The underlying facts (as presented in the challenged Complaint and First Amended Complaint) are straight-forward. In August 1988, plaintiff Thomas Donaldson (“Donaldson”) was diagnosed as having a malignant brain tumor. The tumor is inoperable and, ultimately, will kill him. In the two years since diagnosis, the tumor has grown and has intruded upon his brain function. It has caused speech impediment, right-sided weakness and seizures. The tumor is a “space occupying lesion.” As it continues to grow, it will slowly increase the pressure on all brain tissues within his skull. When this increased pressure reaches and ultimately exceeds the pressure with which Donaldson’s blood is pumped by his heart, the brain slowly will die from lack of nutrients, especially oxygen (2). In time, Donaldson will be completely incapacitated and then will die.

Donaldson is a highly educated, mentally competent adult. He does not wish to suffer through a slow and painful decline while the tumor continues to grow and literally squeeze all life from his brain. He prefers a timely, albeit earlier, death, while he is competent and still has some modicum of dignity.

No one disputes that Donaldson lawfully can end his life by his own hand at any time. All agree that, if Donaldson waits until his brain is sufficiently destroyed to leave him dependent on medical support (and most likely, incompetent), he can require then that medical support be removed, permitting him to starve.

Neither of these alternatives is satisfactory to Donaldson because he wishes also to exercise his right to direct the disposition of his body upon his death. Specifically, Donaldson has directed that, upon his death, his body be placed in cryonic suspension. Donaldson cannot place himself in cryonic suspension without assistance. If he waits until the destruction of his brain cells has reduced him to incapacity, the objective of cryonic suspension — future reanimation — will be impossible and his right to choose the disposition of his body will have been meaningless.

There is no sound reason, in policy or law, why plaintiff should be forced to undergo the physical agony and indignity of being reduced to an incapacitated or vegetative state before he dies. Given the incurable and terminal nature of his disease, plaintiff is entitled to the assistance necessary to place his body in cryonic suspension before the destruction of his brain renders the cryonic suspension absolutely futile.

III.
ARGUMENT
DONALDSON HAS THE RIGHT TO PREMORTEM CRYONIC SUSPENSION OF HIS BODY.

Perhaps nothing is more fundamental to a civilized society than the concept, described by Justice Cardozo, that “every human being of adult years and sound mind has a right to determine what shall be done with his own body. . .” As observed by Justice Rehnquist within the last year:

Before the turn of the century, this Court observed that [no] right is held more sacred, or is more carefully guarded by the law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Defendant here argued before the trial court that this fundamental right is not available to plaintiff here because “there is no constitutional right to commit suicide or assist a suicide, nor is there a constitutional right to commit murder or consent to be murdered.” To pose the question in terms of “murder or suicide” is to begin with a conclusion which begs the questions presented and contributes nothing to an understanding of the issues.

In fact, there is ample authority for the right of a person who is terminally ill to put an end to his suffering and to have the assistance of others in doing so. In California, that right is recognized as “basic and fundamental” to the right of privacy protected by the state and federal constitutions. Whether the right is characterized as suicide is immaterial. Under any name, it is an exercise of liberty which may be exercised and assisted lawfully.

1. A Person Suffering From An Incurable And Terminal Illness Has The Right To Elect To Die When And As He Chooses.

a. The Case Law In California Concerning The Right To Die

In every reported case, where a competent decision was made, the courts have affirmed the right to choose an early death with dignity over prolonged suffering and misery.

The seminal case was decided in 1976 in In Re Quinlan. There, Karen Quinlan, who had been comatose for years, was permitted to elect (through her conservator father) to end her life by directing the removal of her respirator. By 1988, the courts of at least twelve states, including the highest courts of ten, had upheld the right of a terminally ill patient to discontinue needless suffering and to end his or her life. [footnote – The only case in which plaintiffs have been unsuccessful in asserting their right to die are those in which sufficient proof of a competent decision was lacking.]

The California cases have moved in step with other jurisdictions. In Barber v. Superior Court, (1983), the Second District Court of Appeal held that physicians who removed the intravenous feeding tubes from a comatose patient at the request of his family could not be prosecuted for homicide. One year later, in Bartling v. Superior Court, (1984), the Second District again (but a different Division) held that “a competent adult patient, with serious illnesses which are probably incurable but have not been diagnosed as terminal, has the right, over the objection of his physicians and the hospital, to have life support equipment disconnected, despite the fact that withdrawal of such devices will surely hasten his death.”

In Bartling, the court addressed and decided the issue notwithstanding the fact that the patient had died shortly before the case was argued. Two years later, the same court that had decided Barber reaffirmed the holding in Bartling in the case of a live patient, Bouvia v. Superior Court, (1986). As in Bartling, Bouvia involved a seriously ill patient who was not terminal and was not comatose. Ms. Bouvia, was an articulate fully alert and competent young woman who, although seriously ill, had a life expectancy of fifteen to twenty additional years with sufficient nourishment which was provided through a nasogastric tube. The court held that Ms. Bouvia’s right to have the tube removed, regardless of any motivation to end her life, was a “basic and fundamental” part of the right of privacy under the state and federal constitutions. In 1988, the same principles were reaffirmed in Conservatorship of Draybick, (1988), where the Sixth District upheld the right of a comatose patient, through his conservator, to end his life by removal of a respirator.

b. The Characterization Of Plaintiff’s Election As Suicide Does Not Diminish His Right To Die As He Chooses.

Defendant argued, from dicta in Bartling and Bouvia, that those cases do not apply here because the action by those plaintiffs were not suicide while the action proposed by plaintiff is. This purported distinction is a fiction.

Bartling and Bouvia held that those plaintiffs had the absolute right to the removal of life support apparatus notwithstanding that the removal would kill them. Having established the plaintiffs’ right at the constitutional level, the question of whether or not the act permitted was suicide was not an issue. In this context, the references to suicide in both cases is seen as an explicit statement of what the court did not decide. Thus, Bartling emphasized that “this is not a case, however, where real parties would have brought about Mr. Bartling’s death by unnatural means. . .” Similarly, Bouvia emphasized that “it is not necessary here to define or dwell at length upon what constitutes suicide.”

To the extent that either case appears to characterize those plaintiffs’ decisions to end their lives as other than suicide, it is now recognized that this was more a matter of circumspection than an issue of substance. In truth, it is romanticized nonsense. The point is made by Professor Alexander:

As is often true in times of social transition, case law has created fictions to avoid affronting previously accepted norms. In life-support termination, there is a fiction of medical determinism. Patients are seen as passive victims of their illness. They do not choose to die; death overtakes them. Their physicians do nothing to help them die. Death overwhelms them, too.

The fiction requires that any action taken which will lead to death be described as, at worst, surrender to the futility of further treatment.

Blaming the underlying disease rather than the act of life- support removal is romantic but illogical. A person who removed a feeding tube from a recovering patient temporarily dependent on it, would have a difficult time persuading anyone that the resulting death was caused by the underlying illness, not by the removal of the tube.

The fiction was acknowledged and criticized by Justice Compton in his concurring opinion in Bouvia:

In order to seek the assistance which she [Bouvia] needs in ending her life by the only means she sees available — starvation — she has had to stultify her position before this court by disavowing her desire to end her life in such a fashion and proclaiming that she will eat all that she can physically tolerate. Even the majority opinion here must necessarily “dance” around the issue.

Elizabeth apparently has made a conscious and informed choice that she prefers death to continued existence in her helpless and, to her, intolerable condition. I believe she has an absolute right to effectuate that decision . . . . The fact that she is forced to suffer the ordeal of self-starvation to achieve her objective is in itself inhumane.

Ironically, the very authorities cited by defendant would agree that the characterization of Bartling’s and Bouvia’s actions as anything other than suicide is pure fiction.

Suicide may be defined as doing something which results in one’s death, either from the intention of ending one’s life or the intention to bring about some other state of affairs (such as relief from pain) which one thinks is certain or highly probably can be achieved only by means of death or will produce death.

Now, in 1991, one would hope we would no longer need to engage in fictions or euphemisms to make a fundamental right more palatable. The plaintiffs in Bartling, Bouvia (and every other reported case) demanded the right to choose a dignified death over a painful and miserable life. The court acknowledged that right not because the method employed was or was not suicide, but because the constitutional right to privacy guarantees that the choice is theirs to make. Plaintiff Donaldson here demands and is entitled to the right to make the same choice.

c. The Right To Die Includes The Assistance of Others.

In Bouvia, Justice Compton commented on the fact that Bouvia needed the assistance of others to implement her choice.

The right to die is an integral part of our right to control our own destiny so long as the rights of others are not affected. That right should, in my opinion, include the ability to enlist the assistance from others, including the medical profession, in making death as painless and quick as possible.

A necessary corollary to the terminally ill patient’s right to end his or her life is the right to secure the assistance of others where necessary to carry out such a direction. Barber v. Superior Court (1983) Whether it is carried out by the “passive” removal of the nasogastric tube as in Bouvia or the “active” sedation and lowering of body temperature for cryonic suspension here, the only material distinction between lawful assistance and murder is plaintiff’s consent. Absent such consent, neither would be any more or less a crime because it is was either “passive” or “active.”

2. In This Case, Plaintiff’s Interests In Exercising His Right To Die As He Chooses Are Paramount To Any Interests Of The State.

Defendant acknowledges that plaintiff’s right to end his suffering in the matter he has chosen “centers around a balancing of the asserted constitutional right against the pertinent interest of the State.” Defendants then argued that “when that balance is struck, . . . plaintiff’s asserted claim to a right to enlist others to take his life in an assaultive manner must be rejected.” While defendants’ argument recited the abstract interest of the State in preserving life, it failed entirely to address any of Donaldson’s interest in ending his. Defendants’ one- sided analysis, therefore, presented no balancing of interest at all. [footnote – Certainly the state has an interest in preventing the involuntary termination of life as a necessary element of social order. Stated in the abstract, however, the state’s interest “in preserving life” or “in preventing suicide” is devoid of sufficient content to overcome a constitutionally protected right to privacy. Indeed, merely defending the state’s abstract interest to “life” is a throwback to the view articulated by Blackstone that suicide is criminal behavior because the suicide is seen “rushing into [God’s] immediate presence uncalled for . . .” Blackstone, Commentaries on the Laws of England, Book IV, ch. 14, sec. III.]

a. Donaldson’s Interests Are No Less Compelling Than Bartling’s Or Bouvia’s.

A comparison of Donaldson’s condition with Bouvia’s leaves one hard pressed to identify a material difference in the interest of either in ending his and her suffering. While Bouvia’s condition had reached a more debilitating state, the difference is only one of time and provides us with a glimpse of what lies ahead for Donaldson. . . . . Donaldson’s condition is terminal while Bouvia’s condition was not. Bouvia had a life expectancy of 15-20 years, which is substantially longer than Donaldson’s.

Notwithstanding these differences, the compelling comparison is that Donaldson, as did Bouvia, faces a certain future of pain and humiliation. While Donaldson may have fewer years left than Bouvia, the message from Bouvia is that it is not so much the amount of life left as it is the quality of the life remaining that counts.

Who shall say what the minimum amount of available life must be? . . . As in all matters, lines must be drawn at some point, somewhere, but that decision must ultimately belong to the one whose life is an issue.

b. The State Has No Greater Interest Here Than It Had In Bartling Or Bouvia.

Defendants asserted a greater state interest here than in Bartling and Bouvia based on the State’s interest in preventing suicide and murder. As discussed at [I.A.1.b.], supra, the characterization of Bartling’s and Bouvia’s decisions as other than suicidal are pure fiction. Nor is there any material distinction in the characterization of the means used as “passive” in one case and “active” in another. As Justice Scalia observed:

It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing.

In fact, one is hard pressed to identify any compelling interest of the state in depriving an incurably and terminally ill person the right to end his suffering sooner rather than later.

The compelling State interest to prevent assisted suicide is quite weak when the act is undertaken because of a terminal or severely handicapped illness, . . . [footnote – Smith, “All’s Well That Ends Well: Toward a Policy of Assisted Rational Suicide Or Merely Enlightened Self-Determination.” 22 UC Davis L. Review 275, 312 (1989), cited by defendant at Demurrer, p. 13.]

It is worthwhile at this juncture to examine some of the rationales advanced against assisted suicide and note their constitutional fragility in the contemporary world.

Prevention of crime. There is no doubt that every state has a legitimate and compelling interest in preventing one person from imposing death upon an unwilling victim. No organized society can long endure unless it can ensure the lives of its citizens. The nugget in the prevention of this kind of activity, however, only makes sense if it is geared toward the prevention of involuntarily imposed results. The chaos implicit in a society that permitted unconsented killings is largely absent when the concept of involuntariness is taken out of the equation. Despite the occasional flat earth utterance that a state has a compelling interest in protecting “undifferentiated” life, the intellectually defensible position appears to be that civil society only has a legitimate interest in protecting against unwanted bodily intrusion.

. . . . The state has an obvious interest in preventing murders that are disguised as suicides. It does not require very much imagination to conjure up scenarios whereby interested parties would be very unreliable assistants to a prospective suicide. We are reluctant to accept the word of the sole heir of a suicide that his or her “assistance” was solicited by the deceased. The state could, therefore, require some reasonable scheme of vetting the bona fides of those who would assist another in committing suicide in order to assure that the prospective suicide is being done voluntarily and not as the result of undue influence, fraud or duress.

One court system has worked through this problem already. The Supreme Court of Holland, in a relatively recent decision, has outlined what it considers to be the necessary ingredients of a process to subject a prospective assisted suicide to a “disinterested” outsider’s view. The Dutch Supreme Court’s resolution, if not perfect, is workable. It simply anticipates a review by a disinterested party (a medical doctor) prior to the assistance being rendered to the suicide.

It is difficult to imagine a legitimate crime prevention interest that the state might have that would not be served by the Dutch model as outlined above. Similarly, constitutional liberty is not unduly compromised. By ordinary constitutional standards, a society can legitimately require some dispassionate demonstration of voluntariness before permitting a person to assist at a suicide. In simple words, the intrusion of government contemplated by the Dutch model would appear to be minimal and no broader than required to subserve legitimate governmental ends. It is the province of courts to fashion just such appropriate orders to serve the needs of the case at hand.

Civil duty. Some cases that discuss suicide tell us that suicide ought to be against public policy because it destroys the ability of the actor to perform his civic duties to his dependents and to other persons. Whatever theoretical merit that position may have in respect of the “ordinary” suicide, it has no pertinence to the assisted suicides which are the focus of this case. Our case involves someone who is or will be helpless at the time of his death. It follows that people who, because of physical or mental infirmity, are unable to effectuate their own suicide are not persons who are likely to be able to discharge civil duties in any event. They constitute a relatively small class of impaired persons from whom society cannot legitimately expect extensive and socially useful performance.

As applied to assisted suicide the logic behind the “civil duty” prohibition is tenuous, bordering upon non sequitur. (One also shrinks from the notion that a person ought to be kept alive and in traces like a draft horse until he dies from natural causes.) Proceeding from the assumption that suicide is a fundamental constitutional right, then the state is required to demonstrate a compelling state interest to outlaw or unduly interfere with the right. In the arena of civil duty, it is unlikely that the state could demonstrate that the class of persons who are the focus of this case — persons who are helpless to effectuate their own suicide — would be sufficiently likely to form a critical block of civil accomplishment so as to proscribe assistance at their suicides. Citizens are hardly civic chattel. See, generally, U.S. Constitution, Amendment XIII. A “civil duty” proscription against suicide (and particularly assisted suicide) would seem to violate the unbroken line of cases which suggest that the existence of civil duties — and the threatened breach thereof — cannot otherwise curtail fundamental liberty rights.

The miasmal dread of unperformed civil duties is not an appropriate basis to prohibit assisted suicide.

Religious and philosophical. If nothing else, law is one of many ways in which a society expresses its cultural or philosophical prejudices and preferences. There is nothing intrinsically the matter with that state of affairs. However, legal conflict is inevitable where, as here, philosophical values are in sharp conflict or so in need of reconciliation as to require the intervention of constitutional jurisprudence.

The philosophical and religious objections to suicide (perforce, assisted suicide) seem to fall into three broad categories: first, a residual holdover of Christian distaste for suicide; second, a somewhat undifferentiated and confused bias in favor of the “life force”; and third, the numbingly familiar “slippery slope” argument.

At common law, the courts accepted the religious proscription of the Church as a basis of decision. The common law text writers of course followed suit. Typical is Blackstone who informs us that suicide (“self murder”) is criminal in part because the suicide is seen as “rushing into [God’s] immediate presence uncalled for . . . .” Obviously, no court could get away with interfering with a suicide on the basis that it puts the suicide in the presence of God “uncalled for.” The establishment clause of the First Amendment scotches that notion. However, the generalized notion that suicide is “wrong” or somehow violative of public policy has endured. One still finds cases that, with absolutely no underlying explanation, declare that the state’s interest in “preventing suicide” and “preserving life” were self-evident propositions. This class of cases, being uncritical and unanalytical in the extreme, resist contrary argument. They are simply the residual effects — cast into judicial utterances — of a belief system which no longer is entitled to the enforcement of law. For the purpose of this brief it is simply appropriate to note that these cases exist and that their genesis defies both logic and analysis. It must be remembered that in California at least, a prohibitory statute must have a secular purpose. Wollersheim v. Church of Scientology, (1989).

The next subcategory is the generalized perception that the law should favor human “life” and pit itself against “death.” One finds statements such as that of Justice Rehnquist in declaring that a state has a legitimate interest in the “undifferentiated” preservation of life. A number of things are the matter with that philosophical proposition. The most glaring of the defects is that the a priori consignment of death to a “bad” category as opposed to the “good” category of life makes no objective sense. Barring the demonstrable advent of an afterlife (to which the mode of death in this mortal existence would have no pertinence) death is simply the inevitable end-point of the life processes enjoyed (or endured) by all living things including humans.

In the specific context of California constitutional jurisprudence, it is impossible to conjure up a defensible state interest that would compel an individual to treat his or her life as worth living even after the individual manifestly concludes that that is not so. The state is in no position to answer the ultimate “because” question: “We are forcing you to stay alive because _______________.” That blank space stares back at us accusingly. Just what is it about a person’s involuntarily continued mortal existence that advantages the state? Aside from the possibility of some merit in the “slippery slope” arguments discussed infra, Donaldson’s counsel have found no philosophically cogent arguments posited by any writer which would justify imposing an unwanted continuation of mortal existence on a Californian, protected as he is by the right to privacy. That is, the price which someone might pay with their body in terms of pain or degradation has never been demonstrated to advance an objective and secular interest of the state. The best that the cases have done is to advance the tautological proposition that life is good because life is good. In that context it is impossible to justify a policy of miasmal life enhancement which may — and very, very frequently does — visit upon a citizen a level of torment and pain which would not be tolerated as punishment for the most heinous and revolting criminal behavior. It would seem to be a strange society indeed that required innocent citizens to live in torment and evil ones to be largely free of physical discomfort.

The last category of philosophical objection to assisted suicide can be generally lumped under the heading of “slippery slope.” The central theme of all of the “slippery slope” arguments — with no exceptions Donaldson’s counsel have been able to uncover — is that any step along the path of euthanasia creates an unreasonable risk that the permissive society will ultimately condone involuntary euthanasia. But there is no evidence that any society has developed aberrant homicidal offshoots such as involuntary euthanasia because of a progressive deterioration in the society’s appreciation of the value of human life. The only historical precedents involve phenomena such as human sacrifices to propitiate the gods (ancient Aztecs) or the abandonment of the elderly because there is not enough food to go around (Eskimos).

If the underlying premise of Donaldson’s complaint is correct, i.e., that the right to suicide is a fundamental one, then it is respectfully submitted that the trial court was wrong in staying its hand: Making the “great leap” from the recognition of a fundamental right to decisions that implement that right is precisely what judges are supposed to do. It is inappropriate for a trial court to avoid deciding a case in the hopes (or dread) that a legislature will act. California judges have a duty to exercise their jurisdiction and to decide all cases properly before them. This is especially true of cases involving interference with constitutional rights. Even in the absence of recognized procedure, constitutional jurisdiction must be exercised even if it has to “make up” a procedure.

The issue raised by Donaldson’s case is now ripe for a reasoned decision. The pirouettes of “preservation of life,” “prevention of suicide” and avoidance of the “slippery slope” are no longer acceptable substitutes for a rational confrontation between compelling state interests of the secular variety and Donaldson’s fundamental constitutional rights.

c. The Commentators Cited By Defendant Would Each Support Plaintiff’s Right To Die.

Ironically, each of the commentators cited by defendants in their demurrer supports plaintiff’s right to carry out his plan.

In the note “Criminal Liability For Assisting Suicide,” the author proposes a model statute which would decriminalize assisting a suicide where the person ending his or her life was a competent adult who was suffering from a terminal or chronic illness or a permanent, serious physical handicap. As Donaldson’s condition is terminal, he could enlist the assistance of others under this standard.

In “Suicidal Competence and the Patient’s Right to Refuse Life Saving Treatment,” the author argues that the State has an interest only in preventing “irrational” suicides or those in which the decision to terminate life is not competently made. The author proposes a two-prong test . . . . Applying this test, the record would compel that Donaldson be entitled to carry out his plan.

Finally, in “All’s Well That Ends Well, etc.” , the author argues for an “enlightened self-determination” of an individual’s life plan as the fulfillment of liberty.

Again, given the dismal future in store for plaintiff, who could say that his decision to end his life with dignity at this stage is anything other but an exercise of “enlightened self-determination.” Certainly not the state.

3. Plaintiff Has The Right To Direct That His Body Be Cryonically Suspended.

a. California Recognizes One’s Right To Determine The Disposition Of His Body.

The right to determine the disposition of one’s own body attaches to the most fundamental values of a civilized society. It carries with it religious, moral, ethical, social and even environmental considerations which, instinct tells us, attach to basic human rights. While there are no reported appellate opinions focusing specifically on this issue, there is a substantial legal foundation for the concept of freedom of choice in directing the disposition of one’s own body.

The legislature has acknowledged this concept of liberty in Health & Safety Code sec. 7100 which provides, in pertinent part:

Sec. 7100. Right to control disposition of remains; duty and liability for interment; devolution; prior directions of decedent. Order of Devolution. The right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent, vests in . . . the following in the order named: [surviving spouse, children, etc. ] [Emphasis added. ] . . .

Directions of Decedent. A decedent, prior to his death, may direct the preparation for type or place of interment of his remains, either by oral or written instructions, . . . The person or persons otherwise entitled to control the disposition of the remains under the provisions of this section shall faithfully carry out the directions of the decedent subject only to the provisions of this chapter with respect to the duties of the coroner.”

While the last section of the statute uses the word “interment,” it is evident that that term was not intended as one of limitation on the types of dispositions. The first sentence of the section provides for the order of devolution of the right to control the “disposition” of remains, predicated upon the condition “unless other directions have been given by the decedent.” From this, it would appear that the legislature utilized the terms “disposition” and “interment” interchangeably. It would make no sense to confer upon family members the right to control the “disposition” of the remains subject to other directions by the decedent and, at the same time, confer a more limited right upon the decedent himself. The only logical interpretation of Sec. 7100 which would reconcile all of the provisions of that section is that the legislature intended to vest in each of us the right to determine the disposition of our bodies.

b. Plaintiff’s Right To Direct The Disposition Of His Body Includes The Right To Premortem Cryonic Suspension.

On at least three occasions, trial courts have addressed the issue of cryonic suspension and, in various contexts, have acknowledged, both implicitly and explicitly, the right of the individual to direct the cryonic suspension of his or her body.

In Kent, et al. v. Carrillo, et al., Riverside Superior Court Case No. R 191277, the Riverside Coroner threatened to thaw the remains of decedents in cryonic suspension at the facility of the Alcor Foundation. The focus of the coroner’s threat was the remains of Dora Kent who had recently died and had been placed in cryonic suspension. The plaintiff, who was the decedent’s son, sought to enjoin the actions threatened by the coroner.

In granting Kent’s application, on February 1, 1988, Judge Miceli specifically found that the action threatened by the coroner “would be in violation of the rights of the decedents” and that thawing the remains of the decedents at the Alcor Foundation “would produce irreparable injury.”

The second instance in which these issues were presented to a trial court occurred nine months later in Roe v. Mitchell, Los Angeles Superior Court Case No. C 697 147. Initially, the defendants in the case were a hospital and various employees of the state of California. The context was the advice by the hospital caring for a terminal patient that it would not honor his request to release his body to a cryonics organization at the time of his anticipated death. On October 14, 1988, Judge Mu¤oz issued a Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction(25) restraining the hospital from interfering with the application of the initial cryonic procedures (use of a portable resuscitator) at the hospital after pronouncement of Jones’ “legal death.” [footnote – The hospital later stipulated to make Judge Munoz’ restraining order the terms of a preliminary injunction, which remained in effect until Jones died. The hospital was dismissed from the litigation.]

In October, 1990, Judge Mu¤oz granted summary judgment in favor of Jones and issued a sweeping, comprehensive injunction prohibiting the state from interfering with cryonic suspensions in any way.

[The] farthest reaching, Superior Court action, occurred in December 1989, again in Riverside County, in the matter of Saul Kent, et al. v. Grover C. Trask, II, Riverside Superior Court Case No. 201022. That action involved a threatened prosecution of certain Alcor members who had participated in the cryonic suspension of Dora Kent for violation of the Business and Profession Code prohibitions against the unlicensed practice of medicine. The Alcor member defendants sought injunctive relief on the claim that the threatened prosecution created an impermissible “chilling” of the constitutional right of each Alcor member to direct the disposition of his body by cryonic suspension. In a lengthy opinion, Judge (now Justice) Timlin(26) concluded:

This court concludes that the Adherents, including Dora Kent, under Article I, Section 1 of the California Constitution and the Fifth and Ninth Amendments to the United States Constitution have a right to privacy, which includes the right to exercise control over his/her own body and to determine whether to submit his/her body, or any portion thereof, including the brain, to premortem cryonic suspension. (In ruling on the application, this court in no way comments directly or indirectly on the wisdom of such a choice.)

The moving papers submitted to Judge Timlin in the Kent v. Trask matter relied extensively on the “right to die” cases which consistently have conferred upon the individual the right to direct the discontinuance of life-support measures. While Judge Timlin distinguished those cases from the issues before him, the rationale of the “right to die” cases certainly provides an instructive insight into the direction the law has taken.

While it is not common in constitutional litigation for a plaintiff to take refuge in the technical rules of pleading, the court should be reminded that (1) the proceeding below was a hearing on a demurrer and that (2) one of the allegations of Donaldson’s complaint that the trial court must have accepted as true for the purposes of ruling on the demurrer is as follows:

17. As noted above, Donaldson’s progressive brain tumor will, unless checked, destroy a large part of his brain long before his heart stops beating and Donaldson could be declared legally “dead.” As a consequence, much or all of the physical structure of Donaldson’s brain which encodes memories (personality) will be lost unless he is cryonically suspended prior to that time. In the opinion of established scientists, [a representative list of such scientists and their curricula vitae was attached to the First Amended Complaint as Exhibit “A”] cryonic suspension portends a ponderable likelihood of ultimate success in being able to revive and treat and cure a person whose illness, in contemporary terms, would otherwise be deemed terminal. Further, it is a factual certainty that Donaldson’s post cryonic suspension prognosis would be markedly better — and the chances for his revival and survival would be also be markedly better — if he is placed in cryonic suspension well in advance of the time when his “natural” death would occur.

The development of the technology necessary to effect the repairs described in the subparagraph next above and to restore cryonic suspension patients such as Donaldson to health and vigor is viewed by the scientists (and others) identified in Exhibit “A” as highly probable. As a consequence, interfering with Donaldson’s cryonic suspension will, as a matter of probability, shorten his life span — particularly in view of the certain fact that his life expectancy, absent cryonic suspension, is zero.

Factually, Donaldson’s long-term prognosis is, beyond any statistical doubt, better with cryonic suspension than without it. It is anomalous to suggest that a process that augurs some measure of success is unlawful where the only alternative is a process that augurs no chance of success. More to the point, the demurrer ought not have been sustained unless the trial court was willing to say that cryonic suspension has no chance of working in the future or that there is no constitutionally protected right to suicide under any circumstance. It is unlikely that this court is willing to do either of those things.

B. PLAINTIFFS HAVE THE CONSTITUTIONAL RIGHT TO GIVE AND RECEIVE ADVICE AND ENCOURAGEMENT IN RESPECT OF A SUICIDE.

The salient portions of the first amended complaint are as follows:

29. Assuming arguendo that plaintiffs are not afforded judicial protection arising from their intention to tangibly (physically) aid Donaldson in achieving a “dead” state by cryonically suspending him pre-mortem, Donaldson, Mondragon and Roes 1-10 intend to do the things described in paragraph 30, infra.

30. Without the tangible (physical) assistance of any other person, Donaldson intends to procure sufficient appropriate drugs and intravenous injection equipment to permit him to administer to himself a lethal dose of some substance in order to rapidly bring about his death. Donaldson further intends to bring about his death in the presence of Mondragon and Roes 1 through 10 in order to minimize the time between his legal death and the onset of the cryonic suspension process.

For their part, Mondragon and Roes 1 through 10 (although disavowing any intention to render any tangible, “physical” aid to Donaldson) intend to “talk” Donaldson through the suicide procedure and intend to advise and encourage him in such ways as will assist him in achieving a state of “dead” by the means described above.

31. California Penal Code sec. 401 declares as follows:

“Every person who deliberately aids, or advises, or encourages another to commit suicide is guilty of a felony.” [Emphasis added].

32. Suicide is not listed as a crime or public offense in the California Penal Code nor in any other statutory scheme in this State. Moreover, suicide is not treated as a “common law” crime in this State, inter alia, because Penal Code sec. 6 declares as follows: “No act or omission, commenced after 12: 00 noon of the day on which this code takes affect as a law is criminal . . . except as prescribed . . . by this code . . . .”

33. Plaintiffs intend to advise and encourage Donaldson to effectuate his suicide in the way described in paragraph 30 above and by so doing will (definitionally) aid Donaldson in bringing about his own death.

34. Plaintiffs are informed and believe and on that basis allege that defendants Van de Kamp and Sneddon presently intend to prosecute any persons, such as the cryonic suspension team members, who would aid (even if such aid only consists of advising and encouraging) a fellow human being in moving from a state of “alive” to a state of “dead” within the meaning of Health and Safety Code sec. 7180.

Because suicide is not a crime or a public offense, plaintiffs Mondragon and Does 1 through 10 and Donaldson (as a recipient of any advice or encouragement), are protected by the First Amendment of the United States Constitution, and Article I, Section 2 of the California Constitution from any act or threatened act — including a threatened prosecution under Penal Code secs. 401 and 187 et seq. which would interfere with their right to free speech and expression.

At issue here is whether and to what extent the plaintiffs’ right to give and receive suicide advice (speech by any other name) can be curtailed by government fiat. We might also keep in mind that California Constitution Article I, section 2 constitutes a “protective provision more definitive and inclusive than the First Amendment [of the U.S. Constitution].” Wilson v. Superior Court, (1975). State action violative of the First Amendment is, a fortiori, violative of the California Constitution. Bill v. Superior Court, (1982).

Under the First Amendment, there is a two pronged test which must be utilized in order to justify imposing either a civil or criminal penalty upon speech: The court must be satisfied that the speech in question (1) is directed at the goal of producing imminent lawless conduct and (2) the speech is likely to produce such conduct. Hess v. Indiana, (1973). Suicide is not “lawless” in California. Suicide is not a crime. Suicide is not a tort. Suicide is not a breach of contract. It necessarily follows that speech which is intended to lead to an imminent suicide (and that is the case here) may not constitutionally be prohibited. Counsel for Donaldson have made a comprehensive review of the cases and have been absolutely unable to find a single case wherein the advocacy of lawful activity could be constitutionally proscribed.

Because of the foregoing analysis, Penal Code sections 401 and 187 et. seq. are unconstitutional as applied to the facts of this case. Further, section 401 is unconstitutional on its face precisely because it attacks expression rather than any underlying unlawful conduct. The cases cited below by the Attorney General are beside the point. Statutes prohibiting solicitation of crimes are simply not comparable to statutes (such as section 401) which proscribe the advocacy of lawful behavior. Solicitation statutes are constitutional; section 401 is not. The demurrer ought to have been overruled on this point.

C. THE COURT HAS THE POWER TO ENJOIN THE UNLAWFUL ENFORCEMENT OF A STATUTE

Defendant argued that the trial court does not have the power to enjoin actions taken by a public official pursuant to statutory authority. This is a correct statement of the law only so long as the statute or its enforcement does not contravene constitutional rights.

Plaintiffs’ complaint alleges that, if he exercises his right to die and to direct the disposition of his body in the manner he has chosen, defendants will prosecute those assisting plaintiff and will autopsy Donaldson’s body. As demonstrated in plaintiff’s argument, supra, such actions by the defendants would be unconstitutional and therefore can be enjoined.

D. PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW

Defendants lastly argues that plaintiffs have an adequate remedy at law because they can defend themselves against criminal charges. The simple answer is that so long as the chilling effect of the prospect of criminal prosecution is present, all plaintiffs will be denied the opportunity to exercise their constitutional rights. Moreover, even if an assistant were willing to take the risk, by the time charges are brought, damage already would have been done.

IV.
CONCLUSION

For all of the foregoing reasons, it is manifestly clear that the trial court erred in failing to recognize that both Donaldson has the right to an assisted suicide under the facts of this case (whether or not in the context of a cryonic suspension) and that Mondragon and those similarly [situated] have an absolutely protected Constitutional right to advise and encourage Donaldson in his efforts at suicide. For these reasons the trial court must be reversed and this case returned to the trial court with directions consistent with the positions of plaintiffs set forth hereinabove.

DATED: May 28, 1991
Respectfully submitted,
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
A Professional Corporation