By Dave Andrusko
Editor’s note. My family and I will be on vacation through September 7. I will occasionally add new items but for the most part we will repost “the best of the best” — the stories our readers have told us they especially liked over the last five months. This first ran July 1.
A unanimous New Mexico Supreme Court Thursday gave opponents of assisted suicide a huge victory.
On a 5-0 vote, the justices upheld an appeals court decision which ruled that Bernalillo County District Court Judge Nan Nash had erred in 2014 when she struck the decades-old New Mexico Assisted Suicide law which protected the state’s citizens from assisted suicide.
“If we were to recognize an absolute, fundamental right to physician aid in dying, constitutional questions would abound regarding legislation that defined terminal illness or provided for protective procedures to assure that a patient was making an informed and independent decision,” Justice Edward Chavez wrote for the court.
Justice Chavez was joined by Justices Barbara Vigil, Petra Jimenez Maes , Chief Justice Charles Daniels, and Fifth Judicial District Judge James Hudson of Roswell who was designated because Justice Richard Bosson had announced his retirement when the case was submitted.
The justices were clearly receptive to the case presented at oral arguments by the New Mexico Attorney General’s Office –that the final decision on the legality of the assisted suicide belonged not with the courts but with state lawmakers.
The origins of the case go back to 2012 when Dr. Katherine Morris and Dr. Aroop Mangalik, two University of New Mexico Hospital oncologists, later joined by Aja Riggs, a woman who had been battling stage 3 cancer, and whose prognosis was terminal, challenged the 1963 Suicide Act.
Four years later, Ms. Riggs’ cancer is in remission.
In January 2014 Judge Nash, ruling in a lawsuit brought by the ACLU of New Mexico and Compassion & Choices, concluded that that killing a terminally ill patient with that person’s consent is a “fundamental right” under the state constitution. As NRL News Today reported, , Judge Nash asserted in her 14-page opinion that prescribing lethal drugs to a patient, or as she defines it, “aid in dying,” is merely another type of medical treatment.
Last August the New Mexico Court of Appeals overturned Judge Nash in a stinging 142-page decision. The three-member panel concluded that Judge Nash had erred in concluding that “aid in dying is a fundamental liberty interest.”
“We are not persuaded by Plaintiffs’ position that a modern desire to hasten death under the rubric of medical privacy can be inferred to take priority over the express fundamental interest in life,” it concluded. “Any development of the importance that society may eventually attribute to dying with autonomy and dignity remains inferential and secondary to life…”
Judge Timothy Garcia added, “At its core, aid in dying challenges the longstanding and historic interest in the protection of life until its natural end as well as the equally longstanding prohibition against assisting another in hastening that process.” Further, “This treasured right to life is not only considered sacred under the common law but is also recognized as an inalienable right, even for those condemned to death.”
Writing about yesterday’s decision for the Albuquerque Journal Scott Sandlin noted
Although the law was challenged under the state constitution, the New Mexico justices in making their decision considered the U.S. Supreme Court’s 1997 ruling in a case from Washington state that looked at physician assistance to terminally ill patients seeking to end their lives. In that case, Washington v. Glucksberg, the constitutionality of Washington’s assisted suicide law was affirmed.
More specifically, the High Court unanimously rejected the claim that there was a constitutional “right” to assisted suicide. Having that as a backdrop was and is critical.
However as Jennifer Popik, JD, of the Robert Powell Center for Medical Ethics, has written
But many of the concurring Justices suggested they agreed only because there was not yet enough evidence to show that states could not rationally fear abuses.
Moreover, in one concurring opinion in Glucksberg, then-Justice John Paul Stevens made a point of saying that he did not intend to “foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.”
In addition to this open-ended invitation to bring a case in the future, Supreme Court Justices have also indicated that they like to look at trends.
Thus future changes in the Supreme Court’s membership will be critical.
Moreover, as always, the pro-assisted suicide forces are undeterred. “Rep. Bill McCamley, D-Las Cruces, said Thursday he has formed a working group to look at legislation to allow the practice and expects to have a bill ready for the January 60-day session,” Sandlin reported.
But for now, the last word belongs to those fighting Compassion and Choices and the ACLU.
Catherine G. Foster, an attorney with the Alliance Defending Freedom who represented legislators urging the court to uphold the Court of Appeals and find no right to aid in dying, called the Supreme Court decision “a win for all New Mexicans.
“Physician-assisted suicide threatens all people and turns the focus from treatment to terminality and death,” said Foster, executive director of Euthanasia Prevention Coalition USA. “Simply put, diagnoses and prognoses aren’t foolproof, and no law can protect our weakest citizens, particularly the elder and disabled communities, from the coercion and abuse that go hand-in-hand with (it).”