CHICAGO (CAPITOL NEWS ILLINOIS) – Illinois is set to become the first Midwestern state to allow terminally ill adults to take life-ending medication prescribed by physicians when the law goes into effect late this week.

But a federal judge is weighing whether to block the End-of-Life Options for Terminally Ill Patients Act, or EOLA, from its Sept. 12 operative date after hearing arguments Friday in a lawsuit that alleges EOLA discriminates against people with disabilities. The suit also claims the law runs afoul of federal law including the Americans With Disabilities Act and the Affordable Care Act.

Thomas Geoghegan, who represents the disability rights groups, physician and disabled Illinoisans who brought the case, told U.S. District Judge John Tharp that the law upends the millennia-old tradition of the Hippocratic oath, a pledge doctors make to “first do no harm.” As a result, Geoghegan argued, EOLA will result in the “severe impairment” of the relationship a patient with disabilities has with his or her physician.

Read more: Advocates, patients file lawsuit to block ‘medical aid in dying’ law in Illinois

“It’s our view, ultimately, this is authorizing a different standard of care,” he said.

Disability rights advocates fiercely opposed the two-year effort to pass the law, warning that physician bias in perceived quality of life may make doctors more inclined to encourage life-ending treatment over other options for people with disabilities.

On Friday, Geoghegan contended this risk of coercion could be exacerbated by the reality of the American healthcare system, in which people with disabilities are often also poor or on public aid. Other countries that allow medical aid in dying, like Canada and some of Europe, have socialized medicine systems, he pointed out.

“It’s a whole different bag in the United States,” Geoghegan said. “Because you can go out into the street right now and run into someone who’s a defendant in a medical debt case. A whole lot of Americans are uninsured or … underinsured.”

But the attorney defending EOLA on behalf of the state argued that the law contains a key stopgap: Physicians are only allowed to discuss lethal options with a terminally ill patient if the patient is the one who brings it up.

EOLA only applies to adults with less than six months to live — a prognosis that must be confirmed by two independent physicians. Patients must make the request for lethal medication both verbally and in writing, and doctors are required to inform them of alternate hospice care and pain control options.

Additionally, a patient requesting the medication must pass a mental evaluation by a physician to determine that they are mentally capable of making the decision and not facing undue influence. Patients must also be physically able to self-administer the medication.

Read more: Pritzker signs ‘medical aid in dying’ bill amid religious opposition | Legislature passes ‘medical aid in dying’ bill that governor says he will review

But Geoghegan argued that the law doesn’t require enough state oversight to the doctors determining whether a patient is a candidate for “medical aid in dying,” a term proponents of the law often use. Opponents, which also include religious groups like the Catholic Conference of Illinois, prefer to describe it as “assisted suicide.” Because EOLA doesn’t contain “an objective, state-engaged standard” for doctors to make those determinations, Geoghegan told the judge the law amounted to a violation of due process rights for people with disabilities.

Tharp asked Elizabeth Morris, a high-ranking litigator in Attorney General Kwame Raoul’s office, to respond to Geoghegan’s argument that EOLA lacks a “process to assess the validity and legitimacy of actions that might be taken under the statute.”

“I would argue the act itself sets forth this very thorough process to slow things down and give doctors the opportunity to assess patients,” Morris said, noting that doctors are trained to walk patients through informed consent, which she also said is “explicitly spelled out” in the law.

And because doctors are “responsible to the state” both to maintain their medical licenses and under medical malpractice law, Morris argued Illinois “has already put these guardrails in place.”

Tharp said he would make a decision on whether to grant the preliminary injunction before the Sept. 12 effective date.

Another challenge is pending

In a separate challenge to EOLA filed last month by religiously affiliated healthcare systems and doctors, another federal judge in Chicago approved a temporary restraining order agreed to by all parties. The stipulated TRO exempts the plaintiffs from having to discuss lethal medication with patients until the 7th Circuit Court of Appeals decides a case concerning similar themes.

In that case, stemming from a 2016 law requiring that, if requested by the patient, providers who don’t perform abortions must refer, transfer to or give patients written information about providers who do. A federal judge in Rockford issued a mixed ruling in the case last year, which the parties swiftly appealed. The appellate panel heard arguments this spring and could issue a ruling any time now.

Read more: 7 years after passage, Illinois’ first in string of recent abortion protections gets day in court

Democratic lawmakers pushed EOLA through to passage in October and Gov. JB Pritzker signed it into law in December. The statute is also referred to as “Deb’s Law,” named for former social worker Deb Robertson, a Lombard resident living with an aggressive case of neuroendocrine carcinoma.

In her arguments Friday, Morris noted the multi-year effort by advocates to fill the “gap in end-of-life care” options in Illinois, asserting that the “public interest in denying the motion for preliminary injunction here is strong.”

 

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