[Editor’s Note: We’ve previously reported on the New Mexico district court ruling on assisted suicide here and here, among others. The state Attorney General (AG) has appealed the ruling. NDY’s press release about our brief submitted in support of the AG, joined by 6 other national disability rights groups, is both below and online at PRWeb. The brief itself is available as an attachment to the PRWeb release and on the NDY site under “Court Cases” here.]
On August 22, 2014, Not Dead Yet submitted a Disability Rights friend-of-the-court brief in support of the New Mexico Attorney General’s appeal seeking to overturn a district court ruling that the New Mexico constitution contains a right to assisted suicide (Morris v. King, Case No. 33,630, Court of Appeals of the State of New Mexico). Six other national disability rights organizations joined in the brief: ADAPT, the American Association of People with Disabilities, the Autistic Self Advocacy Network, Disability Rights Education and Defense Fund, the National Council on Independent Living, and the United Spinal Association (collectively “the Disability Rights Amici”).
The Disability Rights Amici are represented by Lara Katz of Montgomery and Andrews in Santa Fe, New Mexico, and Steve Gold, a nationally known disability rights attorney based in Philadelphia. The Motion that accompanies the brief states why the groups believe that the disability rights perspective should be considered by the Court of Appeals:
Their members, as well as other people with severe disabilities, are the potential targets of physician-assisted suicide. Their members have faced family and physicians who have actively deprived them of fundamental rights and liberties that others take for granted. They have members whose physicians have mistakenly told them they have six months to live, but have lived far beyond that prognosis. . . . Some members’ families have been urged by physicians to remove life-sustaining treatment at a critical juncture and, after their families fought such recommendations, have survived and gone on to value their lives. Some members initially contemplated suicide following a severe and life-threatening injury, but were denied that option under prior law, and went on to value their lives.
Each of the Disability Rights Amici brings a specific perspective to the policy debate about assisted suicide. For example, the primary mission of ADAPT is to ensure that seniors and people with disabilities are not forced into nursing facilities, but have the choice to receive consumer directed long term care services in their own home. “If the only alternative to death that those in power offer people who require assistance is poverty and segregation in nursing facilities, then it makes no sense to talk about assisted suicide as a ‘choice’”, said Bob Kafka, an ADAPT organizer based in Austin, Texas.
“As a person with a disability and a wheelchair-user, I’m proud that the disability community has overwhelmingly opposed the legalization of assisted suicide,” said Marilyn Golden, senior policy analyst with the Disability Rights Education and Defense Fund in Berkeley, California. “It’s a deadly mix with our broken, profit-driven health care system, where financial pressures already play far too great a role.”
Many people with disabilities acquire them as a result of accidents or trauma, and their prognosis is often uncertain in the early stages. “If assisted suicide had been legal in the past, even if it were supposedly only for those with ‘terminal’ conditions, many of us would not be here today,” said Kelly Buckland, executive director of the National Council on Independent Living. “I might not be here today, and I’m grateful that assisted suicide was not legal back then, and I’m committed to keeping it that way.”
“There is significant evidence that proponents of physician assisted suicide have never intended to stop at the terminally ill,” noted Ari Ne’eman, executive director of the Autistic Self Advocacy Network. “Legislation introduced in New Hampshire in 2014 and prior years includes a definition of terminal illness so broad as to allow for a lethal prescription in response to any condition which shortens lifespan without a known treatment – even if the individual in question might have years or even decades of life remaining. Assisted suicide advocates have been adept at using an incremental strategy by focusing on people who are terminally ill, but their broader policy agenda is already well documented.”
“Our basic position is that when some people get suicide prevention while other people get suicide assistance, and the difference is the person’s age, disability or health status, that’s a problem,” said Not Dead Yet’s president and CEO, Diane Coleman. “It’s a problem of devaluation of people who are being told that others not only agree with their suicide, which is bad enough, but will even help them carry it out. It’s a deadly form of discrimination and, as our brief says, it violates the Americans with Disabilities Act.”
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good on you!
Thank you for posting this “friend of the court brief” for all to read. I certainly agree with all of the arguments for the repeal of this ruling of the District Court Judge in New Mexico that would certainly open the door even wider to involuntary euthanasia of the elderly/disabled/poor and mentally ill who get their insurance coverage from Medicare/Medicaid, our social SAFETY NET. Why is our social safety net being privatized under the managed care and managed death concept to provide “profits” for the private entities? How can we defend against this?
As a lay person who loves to read the law and who tries to understand its intent, this case that was brought to court by the ACLU alarmed me. I, like so many Americans, have admired SOME of the cases the ACLU has brought into court but not all of them. I, once, many years ago asked them for help in a case that I thought illustrated a civil rights violation involving the violation of due process of law protections for a certain class of persons but they wouldn’t talk to me. (Apparently, when due process of law protections in federal and state law are undermined by existing rules/ordinances passed by the cities and their law enforcement to keep the peace and to protect private property and private business interests, the private rights of the individual citizens are sacrificed to the “greater good” of all —-the public good? Somehow these cases never get into the higher courts which must be by agreement of the legal community?)
Anyway, I got to thinking. I”m sure that the ACLU wouldn’t bring a Medicare/Medicaid patient or the surrogate of a patient into court who wanted to protest a unilateral Hospital DNR as being a violation of their constitutional right to “emergency” treatment to save their life under their Medicare/Medicaid contract and EMTALA. OR, maybe just file a lawsuit for “elder abuse” as defined under statute in Missouri Law as a crime, a felony or a misdemeanor.
I’m sure that the higher courts in the deliberation of the Nancy Cruzan case and in view of the 1990 ADA and the 1991 PSDA and the 1997 federal law that denies the use of public funds to accomplish euthanasia, mercy killing, and assisted suicide did not intend that physicians be given immunity by the states for shortening the lives of patients with lethal prescriptions —or injections? In fact, in some of the deliberations of the higher court in the Cruzan case, the court warned about the dangers of physicians “ever” being able to legally shorten life by any active means. As a result, under Missouri law, the consent to the DNR order by the patient or the surrogate is supposed to be witnessed by two individuals, not relatives, before it is placed into the hospital chart. But, apparently, in view of my personal experience, the unilateral DNR is not considered a violation by the Department of Health and SENOR services of Missouri if the hospital ethics committee forgives the physician and/or nurse who entered the unilateral DNR into the chart. .
Isn’t the Hospice entitlement under Medicare “optional” and “elective” and “reversible” in order to respect the rights of hospitalized patients under public and private insurance to those rights protected by the 14th Amendment to The Constitution?
Has all of the discussion about “medical futility” etc. for over 23 years since the PSDA was passed into law been just cover to avoid having the discussion about how the 14th Amendment that prevents states from depriving citizens of “life, liberty, and the pursuit of happiness——-” effects or impacts those on “public” Medicare/Medicaid. Is the muddy law surrounding the DNR in the medical chart in and out of the hospital setting intentional? All of those in the medical profession/hospitals and in insurance know that the DNR has been problematic for over 40 years. Yet, for 40 years, there has been no effort to define the legal parameters of the DNR in law? In fact, it looks to me like the bioethicists have contributed to the “muddying” of the law by insisting that the unilateral DNR is “only” unethical and that it can be dealt with by the “in-house” ethics committees.
These in-house ethics committees have a serious conflict of interest, don’t they? Doesn’t all of this worry you. Doesn’t the trial that is being conducted by CMS on “original” medicare patients this year wherein these patients will have concurrent entitlement to “curative care” AND “hospice care” at the same time bother you? What does the Congress and CMS have in mind — If the trial is successful and Congress changes the law, -will Hospice no longer be optional and elective and be the ONLY option? Because, when managed care and managed death for profit by private insurance continues to grow and grow its influence on original Medicare and Medicaid, what will happen to the elderly, the disabled, the poor, and the mentally ill who are already targeted for savings? Will the Advantage Insurers sit on the IPAB?
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