On July 11, the online publication Solutions, “a project of the Buechner Institute for Governance at the School of Public Affairs at the University of Colorado Denver,” included an article by Diane Carman entitled “Doctors, patient challenge New Mexico’s assisted suicide ban.”

The New Mexico court case was brought by Compassion and Choices attorney Kathryn Tucker on behalf of two doctors and a woman with cancer and, according to the article, asks what is the meaning of “assisted suicide”?  Carman begins by asking:

If a terminally-ill patient refuses a ventilator or a feeding tube and the physician yields to that decision, is that assisting suicide? If the patient is in excruciating pain and requests total sedation and no nutrition or fluids, can the doctor be held accountable for his death? What if the patient seeks a prescription from her physician so that when the pain of dying is overwhelming she can seek the ultimate relief on her own?

Throughout the 1980’s and across the country, courts repeatedly and unequivocally answered “no” (i.e. no problem) to the first two questions, but Compassion and Choices (C&C) often raises the specter of being hooked to unwanted tubes and forced to endure unwanted medical treatments when advocating for something completely different than the well established right to refuse treatment.  Despite nearly 25 years of widespread public education about using advance directives to refuse unwanted treatment, C&C counts on people to forget these facts and conflate the issues.  C&C is pushing for the term “aid in dying” to include not only refusing treatment, palliative care, and hospice, but also assisted suicide, rolling it all into one focus group tested phrase.

C&C claims that state laws banning assisted suicide were never intended to refer to doctor assisted suicide of a person given a terminal prognosis.  The article discusses two other cases that have looked at this issue, one in Montana and the other in Connecticut.

Baxter v. Montana was decided by the Montana Supreme Court in 2009.  According to the article, “In a 5-to-2 ruling, the Montana court said that physician aid in dying was protected under the law providing for living wills.”  More accurately and narrowly, the court held that the patient’s consent to assisted suicide would constitute a defense that a physician could raise if they were charged with homicide.  (Baxter v.Montana at page 25 – available at the Court’s website.)  A court or jury would still be able to consider all the facts and circumstances (e.g. misdiagnosis, malpractice) in deciding whether to acquit or convict.

The Connecticut case more closely resembles the New Mexico case in that it considered whether a state ban on assisted suicide could be applied to doctor assisted suicide of a person with a terminal prognosis.  As Carman reports it, the case was “dismissed by the state Superior Court in 2010. In its ruling, the court said, ‘taking one’s life even for a sympathetic reason is suicide’ and therefore physician immunity from prosecution does not apply.”  The actual reasoning of the Connecticut court has quite a bit more substance, including a discussion of why the legislature is the better venue for evaluating a policy change like assisted suicide:

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 resident who wants the option of getting a doctor’s assistance to commit suicide reportedly says that “it’s important to remember that the only patients who would be allowed to obtain physician assistance in suicide would be those who are terminally ill and mentally competent.  ‘This is something the patient chooses and does for herself. It’s not the doctor doing it,’ she said.”

On a superficial level, that sounds good.  But what about people who are not terminally ill or depressed?  In reality, such persons, or indeed any suicidal person, could ask for doctor assisted suicide, but the doctor has to decide who is eligible for their assistance and who is not.  Assisted suicide laws like Oregon’s grant blanket legal immunity to the doctor’s decision to prescribe lethal drugs, along with immunity for any witnesses and other participants who are involved in the death. 

Carmen included a fair representation of some of the disability community’s concerns about assisted suicide.  One of the risks of such a law is that an heir or burdened care giver could take the ill individual to the doctor to request assisted suicide, be a witness to the signature, pick up the prescription and, once the pills are in the home, administer the lethal dose with or without the person’s consent.  With no independent witness required at the time of death, who would know?

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. – Diane Coleman