By Diane Carman
Beginning sometime this week, terminally ill patients in Bernalillo County, N.M., should be able to obtain prescriptions for lethal drugs to end their lives on their own terms as a result of a New Mexico District Court ruling that declares aid in dying is “a fundamental right” under the state constitution.
District Court Judge Nan G. Nash issued her ruling on Jan. 13. The final declaratory judgment from the court, which will enjoin the county from prosecuting physicians for providing aid in dying to competent, terminally-ill patients, is expected to be filed within days.
“This was the first time in the country that the practice of aid in dying was presented in a court case like this,” said Laura Schauer Ives, legal director of the ACLU of New Mexico, and one of the lead attorneys in the suit filed by two oncologists and a terminally-ill cancer patient. “We were very pleased with the judge’s opinion.”
Proponents of physician aid in dying in Colorado and across the country have been watching the New Mexico case closely.
The suit challenged the applicability of New Mexico’s “assisting suicide” statute (NM Statute 30-2-4) to physicians who provide aid to patients in the process of dying from terminal illnesses. The statute classifies assisting suicide as a fourth-degree felony.
The Attorney General’s Office has not yet decided whether to appeal the ruling. One reason attorneys may pursue the appeal is to clarify the limits of the judgment.
“This ruling will enjoin the 2nd Judicial District, but it does not apply outside that district,” said Scott Fuqua, director of the litigation division in the New Mexico Attorney General’s Office. “Judge Nash does not have jurisdiction outside the 2nd Judicial District, but a ruling from the Court of Appeals would have statewide application.”
At this point, the only place patients could lawfully receive physician aid in dying in New Mexico is Bernalillo County, which includes Albuquerque.
If New Mexico ultimately applies Nash’s ruling statewide, it will become the sixth state to allow physicians to prescribe aid in dying. Oregon, Washington and Vermont have enacted statutes to authorize the practice; the Montana Supreme Court ruled in favor of it; and Hawaii has no criminal prohibition against assisted suicide.
In her decision, Nash wrote, “This court cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying.”
Ives said the reaction to the ruling has been overwhelmingly positive.
“This is an issue where the public agrees with us,” she said. “Recent polling shows that a majority of Americans and a majority of New Mexicans support this right of a terminally ill patient to make this decision for themselves.”
The New Mexico Catholic bishops disagree strenuously with the concept of a right to aid in dying, however.
“What people have a right to is a right to good medicine and to a good doctor who helps them,” said Allen Sanchez, executive director of the New Mexico Conference of Catholic Bishops, in an article last week by the Catholic News Agency. “We would never concede that there’s a right to take somebody’s life.”
Ives challenges the church’s interpretation of what’s allowed through the judge’s ruling.
Doctors still don’t have the right to take somebody’s life, she said. “Because the patient self-ingests, it’s a clear personal choice. There really isn’t any danger that this would be forced upon somebody.”
She cites the experience with aid in dying in Oregon and Washington where no evidence has been found that the practice has been abused.
She also challenged the notion that aid in dying should be legalized through a statute, rather than by a decision of the court.
“Physicians make decisions and advise patients about very important life and death matters all the time and it’s incredibly unusual – only in a very few instances – that practices are controlled with legislation,” she said. “The standard of care developed from practice in Washington and Oregon is what governs physicians.”
The Catholic bishops also have expressed a moral objection to physician aid in dying contending that it is suicide.
“We don’t consider it suicide,” Ives said. “It’s a medical treatment provided in a medical context.”
In an amicus brief supporting the lawsuit, the New Mexico Psychological Association said, “the practice of good professional psychology in New Mexico requires that the law … recognize that aid in dying is not a form of suicide.”
Ives said that the patients seeking aid in dying are very different from persons contemplating suicide. “The patient does this in coordination with a physician, not in desperation, in isolation,” she said. ”These are patients who, but for their terminal illness, would live and would want to live.
“They’re avoiding an unbearable dying practice, and to force the morality of some on others who don’t share the beliefs is fundamentally unfair.”
Aja Riggs, 50, one of the plaintiffs in the suit, was diagnosed with advanced uterine cancer in 2011. After surgery and aggressive treatment, the cancer is in remission, but Riggs knows that it could return at any time and has said she wants the right to choose what kind of death she has when the time comes.
“I am really pleased that the courts have recognized that terminally ill patients should have more choice in the manner of their death,” said Riggs in a statement released by the ACLU. “Knowing that I can choose a more peaceful and gentle death at the end gives me great comfort and peace of mind.”
Ives said that medical advances that have made it possible to extend patients’ lives despite serious illnesses and conditions have heightened the need for aid in dying.
“This decision becomes more imperative if you’ve had your life extended through medical advances and you’re suffering and there’s no hope for recovery. It’s a compassionate option to allow patients to end their suffering.”
The New Mexico Attorney General’s office has 30 days to file an appeal.