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02.19.14

New Mexico Court Finds State Constitutional Right to Aid in Dying: State Becomes Fifth to Decriminalize Physician Prescription of Lethal Medications to Terminally Ill Patients

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New MexicoThis post was written by William Thanhauser, O’Neill Institute Research Assistant and Georgetown University Law Center J.D. Candidate ’14. For more information about this post, please contact wdt9@law.georgetown.edu.

Last month, in the case Morris v. Brandenberg, the Second Judicial District Court of New Mexico granted an injunction prohibiting the state from prosecuting physicians that provide “aid in dying” to competent, terminally ill patients.[1] Although issued by the lowest state court of general jurisdiction in New Mexico, the decision has nonetheless received national attention over the past month.[2] At the same time, the case has also revived, and significantly shifted, the aid in dying debate. As state legislatures and the public increasingly recognize the importance of patient self-determination, decisions like Morris may become more common, and aid in dying increasingly decriminalized.

Background

Aid in dying—the practice of physicians prescribing lethal medications for mentally competent, terminally ill patients to self-administer—has been long-debated, and long-opposed, in the United States. Through the late 19th century, medical technology largely rendered the practice unfeasible, although states, nonetheless, unanimously prohibited it (and any other method of assisted suicide).[3] In the early-20th century, the advance of pharmacology suddenly made relatively painless aid in dying possible;[4] but, states continued to proscribe the practice, equating it with euthanasia.[5] Finally, in the 1990s, aid in dying slowly began to gain judicial, legislative, and popular support.

Judicial support for aid in dying

On the judicial front, courts advanced aid in dying by recognizing constitutional rights closely associated with the practice. Thus, in 1990, the Supreme Court held that competent persons have a constitutional right to refuse life-sustaining medical treatment (LSMT).[6] Similarly, in 1997, the Court provided that terminally ill patients have a constitutional right to receive palliative sedation—the continuous administration of pain-relieving medication.[7] Although the Court would later decline to find a constitutional right to receive aid in dying, it allowed that states could opt to not prohibit that practice,[8] and later upheld a state law expressly permitting aid in dying.[9]

Meanwhile, state courts began to increasingly permit aid in dying and acts associated with the practice. In 2009, the Montana Supreme Court effectively legalized aid in dying by holding that the practice alone was not subject to state criminal laws.[10] And, in 2012, the Georgia Supreme Court struck a state law criminalizing the public advertisement of aid in dying.[11]

Legislative and popular support for aid in dying

On the legislative and popular fronts, aid in dying has similarly received increased support over the past two decades. In 1994, Oregon voters approved the Oregon Death with Dignity Act, legalizing aid in dying for terminally ill, state residents.[12] In 2008, Washington voters passed their own statute authorizing aid in dying, the Washington Death with Dignity Act, despite substantial contributions being raised in opposition to the Act.[13] And, last year, the Vermont Legislature ratified its own aid in dying statute.[14]

Today, a majority of Americans favor the legalization of aid in dying, and advocates promoting its expansion anticipate near-term success.[15] In 2014, at least four state legislatures—Massachusetts, New Jersey, Pennsylvania, and Kansas—are expected to consider bills decriminalizing aid in dying.[16] And, ballot measures seeking voter authorization for aid in dying laws may increasingly reach the public.[17]

New Mexico’s Decision on Aid in Dying: Morris v. Brandenberg

Against this backdrop, the Second Judicial District Court of New Mexico’s decision in Morris can be read as part of a growing trend towards decriminalizing aid in dying. In Morris, the court was presented with a petition to enjoin the state from prosecuting physicians providing aid in dying. New Mexico law NMSA § 30-2-4 proscribes “assisting suicide,” classifying it as a fourth-degree felony subject to an eighteen-month imprisonment and a $5,000 fine.[18] Dr. Morris—a physician interested in providing aid in dying—and Aja Riggs—a patient interested in receiving aid in dying in the near future—filed their petition to ensure this law would not be applied to their participation in aid in dying.[19]

Judge Nan G. Nash, ruling for the Second Judicial District Court of New Mexico, awarded Morris and Riggs injunctive relief, enjoining New Mexico from enforcing NMSA § 30-2-4 against physicians providing aid in dying.[20] Judge Nash reasoned that the Due Process Clause of the Constitution of the State of New Mexico gave “competent, terminally ill patient[s]” the right “to choose aid in dying”; and, as applied to physicians providing aid in dying, NMSA § 30-2-4 infringed on that right.[21] Importantly, in recognizing this novel substantive due process right, Judge Nash acknowledged that the U.S. Supreme Court had denied the existence of such a right under the U.S. Constitution,[22] but distinguished the Constitution of the State of New Mexico as “provid[ing] greater rights to New Mexico defendants than those rights provided in the federal constitution in many instances.”[23]

In dicta, Judge Nash also lauded the value of aid in dying. Judge Nash commented that, for terminally ill patients, the treatment provides a measure of control that they would otherwise lack, and a means to avoid the pain and indignity felt in dying; for terminally ill patients’ family and friends, the treatment relieves them of the stress of having to watch their loved ones suffer through illness; and, for the practice of medicine, availability of the treatment leads to increased referrals to hospice and improved end-of-life treatment discussions between physicians and patients.[24] Moreover, throughout the opinion, Judge Nash emphasized the moral importance of aid in dying, framing the case as one of a patient “seek[ing] a peaceful, dignified death.”[25] Because of this purposeful approach, Morris is important not just for its legal reasoning, but its supportive statements on aid in dying.

Future Implications

The immediate impact of Morris is perhaps small. The District Attorney of Bernalillo County had 30 days to appeal the decision,[26] but appears to have declined that opportunity.[27] As such, aid in dying is now legal in Bernalillo County, N.M. (over which the Second Judicial District Court of New Mexico has jurisdiction), and most likely the rest of New Mexico.[28] With a population of just over 670,000 in Bernalillo County, and 2,000,000 in the state overall, the practical reach of Morris should be relatively minimal.[29]

At the same time, Morris may have an expansive impact on aid in dying in the United States. Prior to Morris, only four states permitted aid in dying—Oregon, Washington, Montana, and Vermont. These four states demonstrated two possible means for allowing aid in dying: (1) expressly authorizing the practice via statute (either through ballot measures, as in Oregon and Washington, or through legislation, as in Vermont); and, (2) finding, through state court decision, criminal laws to not apply to the practice (as in Montana).[30] In Morris, Judge Nash has supplied states with a third means for decriminalizing aid in dying: finding a state constitutional right protecting the practice. The potential scope of this method of decriminalizing aid in dying may be substantial. Over the past two decades, various state courts have recognized under their constitutions such substantive due rights as the right to economic liberty,[31] the right to not be limited by a statutory damages cap,[32] and an expansive right to privacy.[33] Assuming other states, like New Mexico, afford greater substantive due process rights under their state constitutions, Morris may be replicated elsewhere, and aid in dying similarly decriminalized.


[1] Morris v. Brandenberg, No. D-202-CV 2012-02909 (N.M. 2d Jud. Dist. Jan. 13, 2014). A copy of this decision can be found at: https://newmexico.tylerhost.net/ServeDocument.ashx?SID=0730da82-c2ce-4331-9d34-98fe74190124&RID=001664dd-e045-4d6c-b5ce-1294189b0a7a
[2] See, e.g., Erik Eckholm, New Mexico Judge Affirms Right to ‘Aid in Dying, N.Y. Times, Jan. 13, 2014, at A16; Lateef Mungen, New Mexico Doctors Can Help Terminal Patients Die, Judge Says, Cnn (Jan. 14, 2014), http://www.cnn.com/2014/01/14/justice/new-mexico-assisted-suicide/; Maya Rhodan, ‘Aid in Dying’ Ruled OK in New Mexico, Time (Jan. 13, 2014), http://nation.time.com/2014/01/13/aid-in-dying-ruled-ok-in-new-mexico/.
[3] See Washington v. Glucksberg, 521 U.S. 710-19 (1997) (noting that “for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide,” and recounting this lengthy history).
[4] See Michael D. Manning, Euthanasia and Physician-Assisted Suicide: Killing or Caring 12 (1998).
[5] See, e.g., Thomas J. Marzen et al., Suicide: A Constitutional Right, 24 Duq. L. Rev. 1, 76 (1985).
[6] Cruzan v. Dir., Mo. Dep’t of Health, 496 U.S. 261, 286-87 (1990).
[7] Kathryn L. Tucker, When Dying Takes Too Long, 33 Whittier L. Rev. 109, 115 (2011) (citing Vacco v. Quill, 521 U.S. 793, 803–05 (1997)).
[8] Washington v. Glucksberg, 521 U.S. 735-36 (1997). The court famously closed by commenting, “Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this date to continue, as it should.” Id.
[9] Gonzales v. Oregon, 546 U.S. 243, 275 (2006) (finding the U.S. Attorney General lacked authority under the Controlled Substances Act to prohibit physicians from prescribing lethal medications under the Oregon Death with Dignity Act).
[10] Baxter v. State, 2009 MT 449, 354 Mont. 234, 224 P.3d 1211 (Mont. 2009).
[11] Final Exit Network, Inc. v. Georgia, 722 S.E.2d 722 (Ga. 2012) (holding that state law violated the First Amendment of the U.S. Constitution as a content-based restriction of speech). The court, however, did not consider the constitutionality of the state’s law proscribing “assisted suicide.” Id.
[12] Kathryn L. Tucker, supra note 7, at 115. Several years later, in 1997, Oregon voters affirmed their support for aid in dying by overwhelmingly voting against a ballot measure that would have repealed the Act. Id. at 138.
[13] Id. at 123, n.54.
[14] Vt. Stat. Ann. tit. 18, § 5290 (West 2013).
[15] See id.
[16] These four states are: Massachusetts, New Jersey, Pennsylvania, and Kansas. Death with Dignity Nat’l Ctr., Death with Dignity Around the U.S. (Jan. 10, 2014), available at https://www.deathwithdignity.org/take-action/.
[17] Since Washington voters passed the Washington Death with Dignity Act, only one state ballot measure has reached voters; and, it, admittedly, failed. In 2012, Massachusetts voters narrowly rejected the Massachusetts “Death with Dignity” Initiative (52% to 48%). Ballotpedia, ). Similarly, in 2000, Maine voters narrowly rejected the Physician-Assisted Deaths Act (51% to 49%). Ballotpedia, ).
[18] N.M. Stat. Ann. §§ 30-2-4 (1978) (prohibiting “assisting suicide” as a “fourth degree felony”) and 31-18-15 (providing the “basic sentence” for conviction of a “fourth degree felony”).
[19] Morris v. Brandenberg, No. D-202-CV 2012-02909, ¶¶ 12-15 (N.M. 2d Jud. Dist. Jan. 13, 2014).
[20] Id. at ¶ OO.
[21] Id. at ¶¶ II, NN. Judge Nash found that the state did not have the requisite compelling interest to sustain this infringement. Id. at ¶ LL.
[22] See Washington v. Glucksberg, 521 U.S. 702, 728 (1997).
[23] Morris, No. D-202-CV 2012-02909 at ¶ Z.
[24] Id. at ¶¶ 24–28.
[25] Id. at ¶ 13.
[26] NMRA § 12-201(A)(2).
[27] As of February 18, 2014—36 days following the decision—there is no public indication that the D.A. has appealed.
[28] Under article 6, section 13 of the Constitution of the State of New Mexico, District Courts of New Mexico have original jurisdiction over all matters and causes in their districts. However, as Judge Nash’s ruling applies to a state law, its holding may be treated by the state as applying throughout New Mexico.
[29] U.S. Census Bureau, http://quickfacts.census.gov/qfd/states/35/35001.html; http://quickfacts.census.gov/qfd/states/35000.html.
[30] Four other states—Nevada, North Carolina, Utah, and Wyoming—have no specific laws prohibiting “assisted suicide,” and do not expressly recognize the common law’s prohibition on the practice. See ProCon.org, http://euthanasia.procon.org/view.resource.php?resourceID=000132. Nonetheless, performing aid in dying in these states could result in criminal prosecution.
[31] Florida and Illinois. See Anthony B. Sanders, The “New Judicial Federalism” Before It’s Time, 55 Am. U. L. Rev. 457, 489–92 (2005).
[32] South Dakota. See Ronald A. Parsons & Sheila S. Woodward, The Heart of the Matter: Substantive Due Process in the South Dakota Courts, 47 S.D. L. Rev. 185, 223 (2002).
[33] See, e.g., Jegley v. Picado, 80 S.W.3d 332, 335 (Ark. 2002) (finding this right under the Constitution of the State of Arkansas).

Comments

  • William Thanhauser says:

    New Mexico has now appealed the Second Judicial District Court’s decision:
    https://www.abqjournal.com/367423/ag-king-appeals-ruling.html

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