United States Magistrate Judge Scott Varholak issued a Recommendation on Tuesday in a lawsuit challenging Colorado’s medical aid-in-dying law, United Spinal v. Colorado, that the Plaintiffs’ claims be dismissed and the pending Motion to Intervene be denied without prejudice. The Magistrate Judge concluded that the Plaintiffs lack standing because none can demonstrate an actual, concrete, or certainly impending injury caused by Colorado’s aid-in-dying law. 

The case concerns a lawsuit seeking to invalidate Colorado’s End of Life Options Act.  Compassion Legal: The End-of-Life Justice Center at Compassion & Choices, and O’Melveny & Myers, LLP filed a motion to intervene on behalf of a terminally-ill patient, a physician who participates in medical aid in dying, a licensed counselor specializing in eating disorder treatment, and Compassion & Choices Action Network so that people with terminal illnesses will continue to have the option of medical aid in dying in Colorado. 

“The court made the right decision to recommend the dismissal of this misguided case and ensure the full range of end-of-life healthcare options in Colorado remains,” said Jess Pezley, Senior Staff Attorney for Compassion Legal.  “Colorado’s End of Life Options Act (EOLOA) expands options for all dying people, whether they wish to use medical aid in dying or not. We should allow people with terminal illnesses to make decisions about their own end-of-life journeys, and respect that they have the capacity to do so.”

Having found that the Court lacks subject-matter jurisdiction due to the Plaintiffs’ failure to establish standing, the Magistrate Judge declined to consider Compassion Legal’s Motion to Intervene and instead recommended that it be denied without prejudice, allowing the motion to be refiled in the event that the district court or an appellate court later determines that jurisdiction exists.

While the Magistrate Judge is not empowered to issue a final ruling on the Motion to Dismiss and the Motion to Intervene, the United States District Court is likely to adopt the Magistrate Judge’s recommendations to dismiss the case and deny the pending Motion to Intervene. 

The proposed intervenors are:

• Charlie Baratta, who has terminal prostate cancer with metastasized neuroendocrine tumors and who fears the option of medical aid in dying will not be available, as a result of the lawsuit, if or when he needs it; 
• Kerry Broderick, M.D., an emergency-medicine physician who has acted as a consulting provider to patients seeking medical aid in dying, and who wants to ensure qualified terminally-ill patients have the full-range of end-of-life options; 
• Kelly Kee, M.A., L.P.C., a Colorado-licensed professional counselor who specializes in the treatment of individuals with eating disorders, who is personally in recovery from an eating disorder, and whose professional expertise does not support anorexia as an irreversible and incurable disease under Colorado’s Act; and 
• Compassion & Choices Action Network, which advocates and lobbies for laws that protect and expand end-of-life options. C&C Action Network seeks to intervene in this case because it sponsored the End-of-Life Options Act, the statute being challenged in this litigation.

In filing their request, the proposed intervenors took a stand to protect the rights and dignity of Coloradans facing terminal illness. They are fighting to ensure the End of Life Options Act, approved by voters to give qualified individuals the freedom to make personal, compassionate choices at the end of life, remains firmly in place. While they are disappointed in the denial of their Motion to Intervene, they are thankful for the Magistrate Judge’s recommendation to dismiss the underlying case.

“United Spinal and their allies are pursuing a nationwide campaign to undermine medical aid in dying laws and scare people away from supporting authorization, implementation, and access,” said John Kappos, co-counsel on the motion to intervene and partner at O’Melveny and Myers, LLP. “These tactics will not stand up in a court of law.” 

“This lawsuit is part of a broader effort to dismantle medical aid in dying across the country—but so far, similar challenges have failed because the plaintiffs could not show they are actually harmed by aid-in-dying laws,” added Ms. Pezley.  “They are not harmed because the law is completely voluntary for patients and physicians alike, and has numerous safeguards to ensure that voluntariness.”

In 2016, Colorado voters overwhelmingly approved Proposition 106, “Access to Medical Aid In Dying,” creating the Colorado End-of-life Options Act. Proposition 106 passed by 65% of Colorado voters, making it one of the most popular ballot measures in state history, with the support of over 1.7 million Coloradans. 

79% of voters nationwide with disabilities support medical aid in dying, which is authorized in 13  states and Washington, D.C.

For more information and frequently asked questions about medical aid in dying, visit: compassionandchoices.org/resource/frequently-asked-questions