By Dave Andrusko
When last we reported on the lawsuit challenging the decades-old New Mexico law protecting the state’s citizens from assisted suicide, the attorney general had just announced he was appealing Judge Nan G. Nash’s decision that killing a terminally ill patient with that person’s consent is a “fundamental right” under the state constitution.
Yesterday Judges Tim Garcia, Linda Vanzi, and Miles Hanisee heard oral arguments from plaintiffs Aja Riggs and Drs. Katherine Morris and Aroop Mangalik (under the guidance of Compassion and Choices and the ACLU of New Mexico), and from the state of New Mexico, represented by Scott Fuqua.
Since we could not be there, we are basing what happened yesterday before the New Mexico Court of Appeals on media accounts.
First, some background.
In 1997 the U.S. Supreme Court ruled that there is no federal constitutional right to assisted suicide. Ever since—and increasingly of late– 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.
The plaintiffs 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 2013, Judge Nash’s opinion adopted this argument and is riddled with dangerous legal consequences, as Jennifer Popik, JD, of the Robert Powell Center for Medical Ethics, warned. (See below.)
Yesterday’s oral arguments, before a packed courtroom, lasted an hour and a half. According to Stephanie Claytor, of KOB Eyewitness News 4,
One of the judges admitted it was a tough decision. They seemed to understand both sides, but two of the judges expressed concerns about legislating from the bench.
“I think people ought to be able to make the choice on their own terms,” said Riggs. “Not to have somebody do something to them when they’re in that extreme pain. That should be avoided.”
Riggs’ cancer is in remission.
Fuqua argued that change, if any, should be made by the state legislature.
“This is an issue that raises questions that the judiciary isn’t that equipped to handle about specifically how a practice like this should be administered,” Fuqua said, according to Claytor. “Those kinds of specific directions have to come from the legislature.”
As Popik explained in an article written for NRL News Today
Judge Nash claims that this option is available to competent “terminally ill” individuals. 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.