JUDGE NOT THIS
It’s up to the Legislature, not the courts, to decide whether to keep NM’s prohibition on assisting suicide in place or to permit aid for the dying.
“I share to some degree the concern that it’s not up to three judges to decide what the Legislature has done. They prohibited assisted suicide. Why is this not best argued in the legislative environment?”
— N.M. Court of Appeals Judge Miles Hanisee
Judge Hanisee is correct that New Mexico jurists should not be the ones who decide who, if anyone, should get help from a physician in going gentle into that good night.
That responsibility should lie with the state Legislature, which in 1963 adopted a law making assisted suicide a fourth-degree felony.
The sparse, and outdated, language of statute 30-24 has no definitions, does not address the issues of terminal illness or dueling diagnoses, patient competency or care-giver coercion, age of consent or guardianship. It too-simply states “Assisting suicide consists of deliberately aiding another in the taking of his own life. Whoever commits assisting suicide is guilty of a fourth-degree felony.”
Yet in the 51 years since New Mexico’s assisted suicide law was put on the books, the worlds of medicine and personal decision-making rights have changed. It’s why there’s a huge debate over extreme treatments vs. palliative care near the end of a life. It’s why there is now a differentiation between aid in dying and assisted suicide, with the former referring to help to hasten an inevitable, and sometimes painful, death and the latter now a pejorative term referring to help to achieve a permanent, and irrational, solution to a temporary situation. It’s why legislatures in three states — Oregon, Washington and Vermont — have authorized physician assistance in dying.
And it’s why two oncologists, Katharine Morris and Aroop Mangalik, and cancer patient Aja Riggs, who is in remission, filed suit. If/when Riggs’ endometrial cancer reappears, she wants the option of having her physician be able to prescribe a lethal dose of a prescribed barbiturate; physicians want to be free from prosecution for easing death for a mentally competent, terminally ill patient.
Last year, 2nd Judicial District Judge Nan Nash ruled in the case that physicians could prescribe medications to allow a peaceful death, based on her conclusion that the state constitution enshrined such a right. Her decision is being appealed by the New Mexico Attorney General’s Office and amicus briefs have been filed on both sides, including seven disability groups that say assisted suicide is part of a long and tragic history against people with disabilities and the state has a critical interest in ensuring decisions to die are not coerced.
Last week, Special Assistant Attorney General Scott Fuqua argued before the appellate court that the case “needs to be decided by the Legislature.” The underlying arguments for more guidance from a public representative body elected to establish laws after analysis, debate and amendment — rather than a judicial yes or no — are sound ones. Judges are ill-equipped to lay out the necessary framework governing this situation. For example, what is “terminal?” Who is “competent?” How do we avoid coercion? Courts decide only the issue before them. They would have to develop this kind of framework piecemeal, case by case. And that’s unacceptable.
The New Mexico Legislature, duly elected by the residents of New Mexico, decided 51 years ago that assisted suicide was illegal. It is that same body that should determine what constitutes aid in dying — and whether the 1963 law needs to be changed or clarified.