By Jennifer Popik, JD, Robert Powell Center for Medical Ethics
On Monday, Judge Nan G. Nash of the Second District Court in Albuquerque struck the decades-old New Mexico law which protected the state’s citizens from assisted suicide.
Ruling in a lawsuit brought by the ACLU of New Mexico and Compassion & Choices, Judge Nash concluded that that killing a terminally ill patient with that person’s consent is a “fundamental right” under the state constitution. The state attorney general’s office said is still in the process of deciding whether to appeal Nash’s ruling to the State Supreme Court.
New Mexico now joins a small minority of states that have legal doctor-prescribed suicide. Currently, the practice is legal in only Oregon, Washington, and Vermont–and may have some legal protection in the state of Montana, due to a court decision in state supreme court.
Other efforts to legalize the practice, which would put countless patients at risk, have been defeated in dozens of state legislatures, most recently in Massachusetts.
In 1997 the U.S. Supreme Court ruled that there is no federal constitutional right to assisted suicide, but there has been an aggressive campaign underway by Compassion and Choices (formerly the Hemlock Society) to have state courts “redefine” assisting suicide as somehow being medical treatment.
In her 14-page opinion, Judge Nash did just that. She asserted that prescribing lethal drugs to a patient, or as she defines it, “aid in dying,” is merely another type of medical treatment.
Under the guidance of Compassion and Choices and the ACLU of New Mexico, two physicians and a cancer survivor served as the plaintiffs in the lawsuit. They sought to have the courts find that doctor prescribed suicide somehow did not fit the state’s longstanding prohibition criminalizing assisting suicide.
Following a two-day bench trial in December, Judge Nash’s opinion adopted this argument and is riddled with dangerous legal consequences. For example, Judge Nash claims that this option is available to competent “terminally ill” individuals.
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However, the court’s reasoning contains no logical basis for restricting its application to them. Assume there is indeed a “fundamental right” to have one’s suicide assisted. Numerous court decisions have held that an incompetent person has a “fundamental right” to reject treatment that surrogates must be permitted to exercise supposedly on their behalf. Judge Nash’s opinion creates a strong precedent to extend that logic—to hold that incompetent people who never asked to die can be actively killed at the direction of relatives or other surrogates.
People who could live indefinitely if provided life-preserving treatment but who would die without it, could be deemed to fit the definition of “terminally ill.” Shockingly, this could result in authorizing the killing of many whose death is not inevitable.
Looking at one example , under this definition insulin-reliant diabetics who stop taking their medication could qualify for a lethal prescription. Nor is there any requirement that a terminally ill individual’s death be imminent, or even near. Pro-death doctors could well argue that Judge Nash’s decision shields them from being held accountable if they kill any patient with an illness that has a statistical chance of shortening life.
Then there are the lessons from laws in other states. Oregon and Washington State, at least purportedly, contain such safeguards as waiting periods, the possibility of a psychological examination, and requiring that the suicide victim personally take the lethal drug, although in practice these have proved meager and often unenforceable. More on the failure of safeguards can be found here.
But like the Vermont statute , the New Mexico ruling provides for no “safeguards” whatever, not even a written and witnessed consent by the victim. Nor does it even require that the victim be an adult. A doctor may kill a “mentally-competent, terminally ill” minor without the consent of or even notice to the child’s parent.
This ruling puts New Mexico citizens in a dangerous position, with a doctor-prescribed death law, and no way to monitor abuse or protect the vulnerable. How is a doctor supposed to determine competence? Are there consequences if the doctor diagnosis someone as terminally ill when they are not? How will the state ensure that vulnerable populations like persons with disabilities are not pressured on the basis that a doctor thinks they have a “low quality of life”?
These questions will go unanswered, and doctors will be allowed under the ruling to start prescribing and administering lethal medication to patients. (Since the means of killing is not limited, doctors are equally immune if they shoot, gas, or suffocate their patients as if they inject them with a lethal drug.)
Judge Nash wrote in her opinion that “Some terminally ill patients find the suffering caused by their illness to be unbearable, despite the best efforts of the medical profession to relieve their pain and other distressing symptoms.” This ought to be a burning shame with today’s medical knowledge of pain management that people still suffer. The solution should never be to kill the patient when the problem is pain management.
New Mexico residents are urged to contact Attorney General Gary King to appeal Judge Nash’s ruling and reinstate the decades-old legal protections against doctor-prescribed death and other forms of assisting suicide. Failure to take swift action could result in the deaths of vulnerable countless older people and those with disabilities.
 For more about Vermont’s law, passed last year, see “Vermont passes most dangerous assisted suicide bill in United States.”