As many of our readers have heard by now, a New Mexico Second Judicial District Judge has ruled that the state constitution establishes a fundamental right of people who are diagnosed as terminally ill to receive a lethal prescription from a doctor, with a corresponding right of the doctor not to be prosecuted under the state law that prohibits assisted suicide.
The judge admitted that the conduct involved would fall within the prohibition on assisted suicide enacted by the state legislature, and that the legislature was aware of the public debate on the issue and wrote the law in a way that clearly included physician assisted suicide. She even admitted that calling it “aid in dying”, as assisted suicide proponents advocate, doesn’t change the fact that it is prohibited by the statute. But she ruled that the state constitution makes “aid in dying” a fundamental right. On that basis, she carved it out of the statute, asserting that no state interest justified limiting the fundamental right, thus declaring the statute unconstitutional as to “aid in dying.”
Stephen Drake has been talking about the proponents’ word game in promoting the term “aid in dying” for years. I’ll refer readers to his entertaining piece entitled Using and Promoting Change of Language to Make the Objectionable Acceptable.
The effort to sell this language as a way of avoiding substantive concerns did not get anywhere in Connecticut. As I pointed out in my blog on a 2012 interview about the New Mexico case with Health Policy Solutions (Doctors, patient challenge New Mexico assisted suicide ban), the Connecticut court viewed this as more appropriate for legislative than judicial action, stating:
Legislative determination is particularly important given the significant medical legal and ethical concerns about legalized physician assisted suicide that have been raised across the country. Among the other difficult and important public policy concerns that the legislature would have to evaluate – and is uniquely positioned in our system of government to evaluate – are the following:
– Whether physician-assisted suicide threatens the most vulnerable in society, including the poor, the elderly, and the disabled, who are at risk of being threatened, coerced, or influenced to end their lives to spare their families the financial costs and emotional strain of caring for them; …
– Whether physician-assisted suicide shifts the focus of physicians and insurers away from vitally important measures such as identifying and treating depression and providing end-of-life pain control and palliative care; . . . – Whether physician-assisted suicide undermines the physician-patient relationship and the integrity of the medical profession by eroding patient trust in the doctor’s role as healer;…
– Whether physician-assisted suicide opens the door to the possibility of involuntary euthanasia, as has occurred in the Netherlands, because “what is couched as a limited right to ‘physician-assisted suicide’ is likely, in effect, a much broader license which could prove extremely difficult to police and contain,” Washington v. Glucksberg, 521 U.S. 702, 733 (1997). (Blick Decision on Motion to Dismiss.)
The New Mexico judge didn’t seem to feel the need to get into all that. In fact, the “Findings of Fact” read like C&C platitudes and propaganda rather than objective statements of fact. Just to highlight two of them:
[Finding of Fact] 31. Where it is permitted, the application for an aid in dying prescription must be made by the mentally competent, terminally ill patient and cannot be made by a surrogate decision maker.
But the Oregon, Washington and Vermont statutes all say that your request for a lethal prescription can be made by someone else familiar with your manner of communicating, which would include the typical surrogate. The disability experience is that doctors all too often prefer to talk to a relative or other companion rather than the person with a disability.
[Finding of Fact] 32. Where it is permitted, an aid in dying prescription must be self-administered by the mentally competent, terminally ill patient and cannot be administered by a surrogate decision maker.
As elder law attorney Margaret Dore has pointed out, assisted suicide statutes provide that the person must be competent at the time of the request for a lethal prescription, but say nothing about the time the dose is administered. More importantly, no independent witness is required at the death, and without such witness, there’s no way to know whether the fatal drugs were administered by the person or their surrogate.
It all comes back to the conclusion I reached about the New Mexico case when I last wrote about it:
The New Mexico plaintiffs are all people who seem privileged enough to be justified in their confidence that the patient in this case will not be coerced into assisted suicide, will not be denied care that she wants, will not be treated like an unwanted burden on those around her, and is not at risk of being administered the lethal drugs without her consent.
It would be nice if everyone with a difficult illness could have the same confidence. But in the real world, where elder abuse is on the rise, C&C’s platitudes should not distract us from our collective obligation to consider the impact on everyone, not just the privileged few.
What needs to happen next is an appeal by the New Mexico Attorney General. Please contact AG Gary King through his Director of Communications Phil Sisneros at psisneros@nmag.gov to urge that essential next step. – Diane Coleman
Frightening that this judge would interpret The Constitution to circumvent the intent of laws already on the state books and in federal law that discourage assisted death and not even look at the arguments and the higher court’s statements about assisted suicide! The absolute power of the judge should be challenged by the Attorney General in this instance but will the Attorney General of the State appeal this decision if it is already public policy in New Mexico to encourage and hasten death of elderly/disabled Medicare/Medicaid patients for the fiscal expediency of Medicare, the state Medicaid programs and the private for-profit interests AND the suicidal patient?
Do you suppose that the federal law of 1997 that forbids the use of public funds to fund assisted suicide, euthanasia, mercy killing, etc.. is still representative of the Congress and the federal government’s aversion to legalizing assisted suicide? Since the Congress refuses to clarify the provisions of the 1991 Patient Self Determination Act as to the right to die and the right to live, and the Courts have “artfully” avoided the subject matter, we have the MESS that exists today. ,
Yes! elder abuse is increasing as life is cheapened by assisted suicide laws and rampant and random violence against the growing older populations of the World. The intentional violence against the elderly/disabled on Medicare and Medicaid in the United States that is demonstrated by the misuse of unilateral overt(default) Do Not Resuscitate Status and covert DNR code status that is not stopped or prosecuted and not actionable as a tort because it is a crime is truly alarming to me..
The UK, who doesn’t even have a for-profit system, recently stopped their Liverpool Pathway program that eased the elderly/disabled into faster and easier deaths because their free Press revealed that the elderly/disabled were often being killed just because their caretakers thought that they would be “better off dead” and this would save local resources but of course there were empty beds available and it wasn’t a matte of using “scarce” resources that could be used for younger and healthier patients. . .
I’ve come to understand through my research that the bioethicists in the Ivy League have hidden behind the concept of medical futility since The PSDA was passed in 1991 to enable over treatment for profit and to confuse the “medical futility issue” to establish that unilateral DNRs are merely lapses of ethics of the hospitals and the physicians and never crimes or torts, or even malpractice. Google Medical Futility-Medical Murder for further discussion.
I agree! This matter should have been decided by the Legislature but obviously the judge spared the New Mexico legislature any ” democratic ” debate about the will of the people and the impact on the people, to include the elderly and the disabled, when assisted suicide is sanctioned by the state.
Sorry, I most vehemently disagree with the views expressed on this website. I held my mother’s hand as she died with dignity at age 90 12 years ago after agonizing pain. I watched my father slip from deep dementia into a coma on a respirator. I have had close relatives and friends go through torturous, agonizing moments before death from cancer with ineffective pain relief, having to break the law to use marijuana since nothing worked, and I have sworn that I will not be a burden to my family and have left advance directives not to keep me artificially “alive”, if you call it that, when no longer sentient, conscious, nor cognitive. I will NOT waste away in some nursing home or sterile institution draining my childrens’ and grandchildrens’ inheritance, even if I have to surreptitiously arrange for someone to kill me, and YOU have NO RIGHT to misuse the law to deny me my ability to choose how I die!!!! If you ever saw the movie “Kevorkian” you would realize that he was a compassionate man who wanted only to end human suffering and I would like to have someone like that attending to me when my time comes.
I have done more than see the movie “Kevorkian” – I’ve read several of the man’s books and many of his journal articles. Movies are packaged to make the main subject more likeable. Kevorkian’s own works and words reveal a man obsessed with being able to orchestrate deaths – not for mercy – but for the opportunity to further medical experimentation. They mostly kept that major passion out of the media whitewashes of the man.
We don’t object to having advance directives but do feel you have to be careful about what you put in them – in other words, be careful what you wish for.
It’s hard to address a lot of other things that you write, in that it’s hard to know if you’re talking about withdrawal of treatment, active euthanasia – or voluntary vs involuntary and it could be the case that you’re not clear yourself. Sorry for the delay on this – your message escaped my notice until recently.
@Mike Winestine! You miss the point here! Nobody is trying to prevent elderly/disabled patients from exercising their right under the 1991 Patient Self Determination Act to CHOOSE to shorten their lives to shorten their suffering unto a certain death that is eased by The Hospice Entitlement –and paid for out of the People’s Medicare Purse.
But! under the law, it is the autonomy of the patient and the right of the patient that should be respected and the UNILATERAL shortening of life should be unlawful UNLESS the withheld procedure is deemed to be “medically futile” under some due process procedure invoked by the hospital, and approved under state law. Surely, you don’t want to give hospitals the right to decide that “you are better off dead” because they aren’t being reimbursed, do you?
Possibly, your Mom was over treated for the profit motive, and not told that it was her right to refuse treatments and opt to do nothing and then transition to Hospice and comfort care, as necessary, which was the intent of the 1991 Patient Self Determination Act that the physicians and bioethicists did not want to be implemented into State Law.
Apparently, since 1991, the for-profit practices and incorporated clinics have not felt that they had any legal duty to SEEK informed consent from their elderly/disabled patients for Curative Care as opposed to Palliative Care/transition to Hospice. And, the physicians/hospitals don’t SEEK informed consent for palliative care that precludes any life-saving and life-extending treatments in the hospital if there are complications from the outpatient care, etc..
I was shocked to read a study done by Ivy League Bioethicists entitled “What’s the Point” that included a paper “Uncertainty and Futility: A case Study” by Thomas P. Duffy, that condoned the withholding from the patient of material information concerning a terminal diagnosis that was condoned .as “Therapeutic Privilege” but which unnecessarily put a patient through terrible “futile” pain —-and while the physician didn’t do it for profit, his practice did profit because of the reimbursement for the chemotherapy and the radiation.
Obviously, this “futile” treatment of a patient that was condoned by prominent physicians in the Ivy League resulted in reimbursement policy being developed by Medicare and private insurance that would NOT reimburse for non beneficial over treatment, mistakes, errors, exceeding the Diagnosis Related Group Caps (DRG Cap) etc.. —–.And then hospitals, in defense of their bottom lines, unilaterally hastened death with covert and overt(default) DNR code status to cap their unreimbursed costs.
Suicide, of course, is not against the law but WHY should physicians be given the power to write lethal prescriptions for instant death that can be misused or abused? If you want to commit suicide and are NOT terminal, do it on your own time and money. If you are terminal, use the Hospice Entitlement and start a “final fast” and you will be dead soon enough. .
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In reading the opinion made available by Thaddeus Pope on his Medical Futility Blog, the only excellent history of “medical futility” and the law, I see that there was no mention of the core entitlement, Hospice, as such, when the ACLU and C&C argued to the Judge that there was already a “form: of legal suicide available under the federal law for terminal patients that wasn’t recognized as suicide under the federal law. .
Their reasoning, therefore, is that ALL TERMINAL patients who elect to hasten their death or shorten their lives to avoid further suffering are NOT committing suicide because this act of shortening life under the federal 1991 PSDA has been exempted by The Congress when the Congress enacted the 1997 law that prohibits the use of public funds for assisted suicide, euthanasia, mercy killing. This “form” of assisted suicide on Hospice is legalized and reimbursed with public funds.
I have argued myself that The PSDA together with the Hospice Entitlement already legalizes a “form” of suicide and WHY doesn’t Compassion and Choices disclose this to the public from whom they raise funds to lobby the state legislatures for assisted suicide laws.
I have argued that “assisted suicide laws” and especially physician assisted suicide is dangerous to the elderly and the disabled and why is it necessary to give physicians the power to write lethal prescriptions for instant death when there will be no funds dedicated by the legislatures to prevent abuse?
I have argued that a “final fast” on Hospice is available and just as certain if not quite as fast as the legal prescription. The legal fast on Hospice ( if requested by the patient) represents a more autonomous act by the patient than the lethal prescription that goes home with the patient and is not monitored.
From my personal standpoint, since physicians have been using unilateral DNRs to hasten death of patients for fiscal expediency of the hospitals, I don’t want to give physicians any more power than they now have.