How Big Are Your Rocks?
Did you have a sling shot when you were a kid? I did, and I used to pick up rocks and pebbles from our driveway to use as ammunition when I plinked tree trunks, scared birds away from eating our garden and knocked cans off a stone wall.
by David Stevens, MD, MA (Ethics)
Did you have a slingshot when you were a kid? I did, and I used to pick up rocks and pebbles from our driveway to use as ammunition when I plinked tree trunks, scared birds away from eating our garden and knocked cans off a stone wall.
Somehow I imagined that the sling shot of David the shepherd boy (two strips of leather and a pocket) propelled the same sort of missile, until I recently visited the Museum of the Bible in Washington, D.C., a must see if you visit the area. The museum had real stones used by slingers in warfare back in biblical times. They were chiseled rocks of heavy stone the size of baseballs. After seeing them, there was no doubt in my mind that hitting a giant in the head with one would fracture his skull and kill him. Of course, Saul’s army still had little faith David would kill Goliath.
I confess I had no more faith than one of Saul’s soldiers when the Life Legal Defense Foundation, a faith-based pro-life legal group in California, contacted CMDA more than two years ago to ask if we would be willing to work with them to sue the state of California to reverse its legalization of physician-assisted suicide.
My first thought was we had as much chance of success as finding a snowball in the Sahara Desert. After all, suing the government was relatively new territory for us.
OUR FIRST FORAYS INTO THE LAWSUIT BATTLE
Until 2016, CMDA had never sued a state or the federal government. That all changed when the state of Vermont tried to force doctors to refer patients to other physicians who would aid them with physician-assisted suicide. We contacted Alliance Defending Freedom and worked with them to sue the state. Ultimately, the state backed down and settled the case. We filed our second lawsuit when the U.S. Department of Health & Human Services asserted that the word “sex” in the non-discrimination clause of the Affordable Care Act was interpreted to mean “gender.” That led to a new Transgender Mandate stating that if a physician provided a procedure or medication to any patient for any reason, that same service had to be provided on demand to transgender patients if they wanted to “transition.” In other words, if you performed mastectomies for breast cancer, you were required to then perform a mastectomy on a woman who wanted to appear like a man. If you prescribed a puberty-blocking drug for precocious puberty, you had to provide it to children struggling with their gender identity if their parents asked for it. This was inappropriate interference in the doctor-patient relationship, not to mention bad science. Studies show that up to 94 percent of children who have delusions about their gender naturally grow out of it before adulthood.1 “Transitioning” does not solve the mental distress for those struggling with their gender identity. In fact, they have almost a 20-fold increase in suicide rate even in countries where the practice is widely accepted.2 And what was the penalty for not complying with this regulation? The physician would be stripped of all Medicaid and Medicare reimbursement. Certainly ironic, given that both of those programs do not pay for medicines and surgery for “transitioning” since their expert committees concluded there was not adequate science to support the practice.3
In addition, a healthcare professional could be sued for using a non-preferred pronoun when dealing with a transgender patient. In fact, at that time, there was already a suit against a physician in California for their pronoun usage. Working with the Becket Fund, CMDA brought suit and, by God’s grace, received an injunction banning enforcement of the regulation. The federal judge who made the ruling was based in Texas, but because CMDA has members in every state, the ruling affected the entire country. HHS was granted the opportunity to rewrite the regulation. Two years later, we are still waiting for that rewrite.
FACING THE GOLIATH OF CALIFORNIA
Despite our successes in these cases, California seemed like a much bigger deal. I thought their extremely progressive courts were unlikely to rule in our favor no matter what evidence we presented. All the same, I felt prompted by God to take on the Goliath of California. We needed to risk it. Our lawsuit alleged that the legalization of physician-assisted suicide didn’t provide equal protection under the law. It treated Californian citizens differently based on whether a physician thought they would die in the next six months. They could assist them in “self-murder,” the definition of suicide, in one instance, but were obligated by law to protect them from their suicidal ideation in all other circumstances. We also alleged that the legislature passed the law unconstitutionally. The California constitution states that only the governor can call an extraordinary session, and the governor must state clearly the reason for which it is called. The End of Life Option Act was passed during an extraordinary legislative session convened to address California’s Medicaid funding shortfall, as well as services to the disabled and home health support. This act had nothing to do with that stated purpose.
With the Life Legal Defense Foundation, we filed our suit the day after assisted suicide became legal in June 2016. It was motioned and countermotioned in the courts in the days that followed. The state claimed the American Academy of Medical Ethics (AAME), CMDA’s state policy arm, didn’t have standing to sue, even though we have more than 1,000 members in California. We won that battle, but the court dates were few and far between and dealt with mainly procedural matters until February 2018. That was when our lawyers informed me that California’s Attorney General’s office wanted to depose me.
I had testified in court for assault and murder cases while serving as a missionary in Kenya, but I had never given testimony nor been deposed in the U.S. Fortunately, I have been fighting the legalization of physician-assisted suicide in the public square since 1994, but I still had lots of preparation to do.
I arrived in California a day early to complete a mock deposition with our legal team. The next day the state’s Deputy Attorney General deposed me for five hours. During the deposition, there were two interesting moments. The first was when I opened my computer to confirm a reference I had jotted down on a summary document of the points I wanted to make. The Deputy Attorney General accused me of communicating with my lawyers, though I hadn’t even touched the keyboard. I explained what I was doing and he demanded to see my computer and took it with him as his team “recessed” to look at it.
It was a God thing, because when he returned he had printed off my summary and used it as outline for his questions, giving me the opportunity to make each of my arguments.
The second moment was later on in the deposition. When he asked why I thought the law was passed unconstitutionally, I asked a rhetorical question, “The extraordinary session was called to deal with healthcare funding. Is the state asserting that by letting physicians assist terminal patients in killing themselves they will save on the high cost of end-of-life care?” He didn’t answer my question so I added, “Even if they are, the state won’t save much. Under 200 people exercised this new ‘right’ last year out of the more than 250,000 who died in the state.”
In March 2018, the Life Legal Defense Foundation team filed a motion for a “judgment on the pleadings,” seeking to have the law “enjoined” and voided as unconstitutional. That is a request for summary judgment based on the written materials provided by both sides without a further court hearing.
In May, Judge Daniel Ottolia ruled in our favor. He stated that the End of Life Options Act “does not fall within the scope of access to healthcare services” and “is not a matter of healthcare funding.” This was not a preliminary ruling but a final order that invalidated the law.
The state immediately appealed and arguments are scheduled to be heard in summer 2018, but a panel of judges denied the Attorney General’s request to allow physician-assisted suicide to continue in the meantime. (The results of those hearings were not available at publication print date.) Compassion & Choices (an organization actively seeking to legalize physician-assisted suicide across the U.S.) sent out a press release stating the law was still in effect, but they later backed up and stated it was “suspended.” The truth was it was invalidated.
Frankly, I was amazed. So amazed that when someone texted me and asked, “Did you see the news that the judge ruled the California physician-assisted suicide law in constitutional?” I wrote back and said, “I did not. Not surprised.” I was so ambivalent in my response because I thought he meant to say it was constitutional. An hour later I found out we had won!
Wow! I thought we were hurdling pebbles at a giant, but when God intervenes, your pebbles turn into baseball-sized rocks that can kill a dangerous law!
WHAT’S NEXT IN THE COURTS
Just after I initially wrote this article, the 4th District Court of Appeals reinstated the law, allowing physician-assisted suicide while the ruling is appealed. The rulings will continue to be appealed in the coming months, and I suspect it will be appealed to the California Supreme Court. That is going to take time. If the state’s Supreme Court concurs it was passed unconstitutionally, the legislature will take it up again. It didn’t get through the full legislature last time because it was stalled in the health committee. The extraor-dinary session gave proponents the chance to hand select a health committee of supporters of physician-assisted sui-cide. It is not a sure thing it will pass the legislature if it goes back there.
My faith has been strengthened by what God did. I hope yours has as well. I don’t know what “giants” you are facing, but as you give each situation you face to the Lord, He will guide your hand and enlarge your “rocks.”
No matter how big your Goliath, he can still fall.
1 Summary of Studies Regarding Risks Associated With Transgender Medical Interventions. (n.d.). Retrieved June 25, 2018, from http://www.transgender- mandate.org/research
2 Dhejne, C., Lichtenstein, P., Boman, M., Johansson, A. L., Långström, N., & Landén, M. (2011). Long-Term Follow-Up of Transsexual Persons Undergo-ing Sex Reassignment Surgery: Cohort Study in Sweden. PLoS ONE, 6(2). doi:10.1371/journal.pone.0016885
3 Proposed Decision Memo for Gender Dysphoria and Gender Reassign-ment Surgery (CAG-00446N). (2016, June 2). Retrieved June 25, 2018, from https://www.cms.gov/medicare-coverage-database/details/nca-pro-posed-decision-memo.aspx?NCAId=282
DAVID STEVENS, MD, MA (ETHICS), serves as the Chief Ex ecutive Officer for CMDA. From 1981 to 1991, he served as a missionary doctor in Kenya help ing to transform Tenwek Hospital into one of the premier mission healthcare facilities in the world. Subse quently, he served as the Director of World Medical Mission, the medical arm of Samari tan’s Purse. As a lead-ing spokesman for Chris tian healthcare professionals, Dr. Stevens has conducted hundreds of television, radio and print media interviews. He holds degrees from Asbury Uni-versity, is an AOA graduate of University of Louisville School of Medi cine and is board certified in family practice.