NDY Letter to New Mexico Attorney General Gary King Urging Appeal of Assisted Suicide Case

I am writing to you in my capacity as President and CEO of Not Dead Yet, a national disability rights group that opposes legalization of assisted suicide, to urge you to appeal the Second Judicial District’s ruling in the Morris assisted suicide case.

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.”

We believe that there are a number of compelling state interests that justify overturning this ruling.

Compassion and Choices made a similar effort to sell the “aid in dying” language as a way of avoiding substantive concerns in Connecticut, but they didn’t get anywhere with this manipulation of words.  As I pointed out in a 2012 interview with Health Policy Solutions and my subsequent blog about the New Mexico case (See http://notdeadyet.org/2012/07/ndy-quoted-in-article-on-new-mexico-assisted-suicide-case.html), 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.)

These issues are equally valid concerns in New Mexico, though Judge Nash ignored them completely.  In fact, Judge Nash’s “Findings of Fact” read like Compassion and Choices’ 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.  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.  (See https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=07&Year=2011&AID=article10.htm.) 

It all comes back to the conclusion I reached about the New Mexico case when I wrote about it in the Not Dead Yet blog:

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.

There is a compelling state interest in protecting devalued elders and people with disabilities from the abuses that legalization of assisted suicide allows.  Please contact me if our organization can assist in any way.

Thank you for your time and attention.

Diane Coleman, JD, MBA
Not Dead Yet
497 State Street
Rochester, NY 14608
708-420-0539 C