Morris v. BrandenburgMorris v. Brandenburg
GARCIA, Judge.
{1} A New Mexico statute makes “assisting suicide” a fourth degree felony and defines the proscribed conduct as “deliberately aiding another in the taking of his own life.”
BACKGROUND
{2} Plaintiffs are Dr. Katherine Morris, a surgical oncologist at the University of New Mexico (UNM); Dr. Aroop Mangalik, a UNM physician; and Aja Riggs, a patient who has been diagnosed with uterine cancer.1 In the course of their practices, Drs. Morris and Mangalik provide medical care to mentally competent, terminally ill adults who have expressed interest in what Plaintiffs call “aid in dying,” which the parties define as the “practice of a physician providing a mentally competent[,] terminally ill patient with a prescription for [a lethal dose of] medication which the patient may choose to ingest to achieve a peaceful death and thereby avoid further suffering.”
{3}
{4}
{5} Quality of life for terminally ill patients varies depending on the specific illness, its manifestations in the patient, and the patient‘s physical and psychological reserves. But progressive terminal illness, by definition, interferes with vital functions, such as eating and drinking, breathing, blood flow, and the basic functions of the brain. At any given moment, there are terminally ill patients in New Mexico “who find the suffering from their illness to be unbearable, despite efforts to relieve pain and other distressing symptoms.” Some of those patients find the current options in end-of-life care to be inadequate to relieve their suffering and want the option of aid in dying. The dying process is often extremely difficult for patients with terminal
{6} Dr. Morris testified that sedating people to this level “suppresses their breathing and sometimes ends their li[ves].” The removal of life-sustaining nutrition and hydration also hastens the death of the sedated patient. Experts at trial described the “double-effect” of this practice of terminal (or palliative) sedation, as it is called: Although the physician‘s “primary intent“—or more accurately, motive—is to eliminate pain, the physician “inevitably know[s]” that administering such high doses of consciousness-lowering medications—at times, tens or even hundreds of times the
{7} Apart from pain, there are other reasons why a terminally ill patient may choose aid in dying. In Oregon and Washington, where data on aid in dying are required to be kept by statute, see
{8} Plaintiff Aja Riggs, who has been diagnosed with life-threatening uterine cancer, testified that she did not know if she “want[ed] to go all the way to the end” and naturally die if the consequences of her cancer reached the terminal stages:
I think one of the images that I had that I didn‘t and I don‘t want to have happen is that I‘m lying in bed in pain, or struggling not to be in pain, or mostly unconscious with everybody that cares about me around me and all of us just waiting for me to die.
Ms. Riggs further testified that the legal availability of aid in dying would bring her peace of mind and help her feel that she can make controlled personal choices about her experience with cancer. This sentiment was echoed by Dr. Nicholas Gideonse who specializes in end-of-life care in Oregon:
I‘ve had patients who‘ve had breast cancer for [twenty years], been through rounds of fighting and succeeding and remission and then not. They know these illnesses well. And . . . if they get the chance to write that final chapter, to at least describe how the story will end on their own terms, it‘s a great relief to patients and their families.
{9} The trial testimony identified the existence and substance of a standard of care for determining terminality and eligibility for aid in dying in other states, derived
{10} The experience in Oregon has been that a number of patients who have been prescribed aid-in-dying medication never ingest it. According to the trial testimony, the availability of the medication nonetheless provides patients the comfort of knowing that there is a peaceful alternative to being forced to endure unbearable suffering. Still more patients do not request the medication after discussing the option with their physicians.
The District Court‘s Judgment
{11} After trial, the district court found that physicians have provided and continue to provide aid in dying to qualified patients in Oregon, Washington, and Vermont (pursuant to statutory authorization); Montana (pursuant to an opinion of the Montana Supreme Court); and Hawaii (where there is no criminal prohibition). The court also found that, when aid in dying is available, “end[-]of[-]life care for all terminally ill
{12} Ultimately, the district court concluded that
{13}
ISSUES AND ARGUMENTS ON APPEAL
{14} On appeal, the parties have stipulated to the factual record developed in the district court. The State argues that (1) there is no fundamental right to the deliberate assistance of a third-party in ending one‘s own life through aid in dying, and (2) the district court‘s ruling violates the doctrine of separation of powers by legalizing conduct that is designated to be a crime by the Legislature. In addition to disputing the State‘s contentions, Plaintiffs argue that
I. Statutory Construction: Section 30-2-4
{15} We begin with the text of the statute, which provides, “[A]ssisting suicide consists of deliberately aiding another in the taking of his own life. Whoever commits assisting suicide is guilty of a fourth degree felony.”
{16} Plaintiffs contend that the statute does not prohibit aid in dying. Citing
{17} The centrаl point of Plaintiffs’ statutory argument is that the Legislature‘s use of the term “suicide” in
{18}
{19} Citing the Uniform Health-Care Decisions Act,
{20} Plaintiffs’ arguments are unavailing in any event. Since enacting
II. The New Mexico Constitution
{21} Plaintiffs argue that
A. The Interstitial Approach to Interpreting the New Mexico Constitution
{22} Gomez made clear that “states have inherent power as separate sovereigns in our federalist system to provide more liberty than is mandated by the United States Constitution” and that “[w]e are not bound to give the same meaning to the New Mexico Constitution as the United States Supreme Court places upon the United States Constitution, even in construing provisions having wording that is identical, or substantially so, unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.” 1997-NMSC-006, ¶ 17 (internal quotation marks and citation omitted). While recognizing that “[f]ederal
Under the interstitial approach, the court asks first whether the right being asserted is protected under the federal [C]onstitution. If it is, then the state constitutional claim is not reached. If it is not, then the state constitution is examined. A state court adopting this approach may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.
Id. ¶ 19 (citation omitted); see State v. Garcia, 2009-NMSC-046, ¶ 34, 147 N.M. 134, 217 P.3d 1032 (rejecting widely criticized United States Supreme Court decision weakening a right “beyond a point which may be countenanced under our state constitution“); State v. Rowell, 2008-NMSC-041, ¶¶ 20-23, 144 N.M. 371, 188 P.3d 95 (declining to follow United States Supreme Court decisions criticized in legal literature as “devoid of a reasoned basis in constitutional doctrine“); N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶¶ 28-43, 126 N.M. 788, 975 P.2d 841
{23} Thus, our analysis of rights afforded by the New Mexico Constitution is not “inextricably tied” to federal constitutional analysis. NARAL, 1999-NMSC-005, ¶ 37; see Gutierrez, 1993-NMSC-062, ¶ 16 (stating that, in interpreting state constitutional guarantees, New Mexico courts may seek guidance from decisions of federal courts without being bound by those decisions). In seeking departure from federal due process precedent, Plaintiffs carried the initial burden to establish that greater due process protections should be recognized under Article II, Section 18 of our New
1. Our Supreme Court has already recognized greater protections under the New Mexico Constitution in “many instances[,]” citing Montoya v. Ulibarri, 2007-NMSC-035, ¶ 22, 142 N.M. 89, 163 P.3d 476 (recognizing that the New Mexico Constitution provides greater rights than those provided in the federal constitution in the areas of double jeopardy, search and seizure, and equal protection).
2. Our Supreme Court has recognized that some rights of a “personal nature” are entitled to constitutional protection, such as “the right of parents in the care, custody, and control of their children“; “the freedom of personal choice in matters of family life“; and “the right to family integrity,” citing In re Pamela A.G., 2006-NMSC-019, ¶ 11, 139 N.M. 459, 134 P.3d 746 (recognizing the interest of parents in the care, custody, and control of their children as a fundamental liberty interest); Oldfield v. Benavidez, 1994-NMSC-006, ¶ 14, 116 N.M. 785, 867 P.2d 1167 (recognizing the general right to familial integrity as a clearly established constitutional right but noting its parameters are not absolute, unqualified, or clearly established); and Jaramillo v. Jaramillo, 1991-NMSC-101, ¶¶ 15-21, 113 N.M. 57, 823 P.2d 299 (addressing the constitutional right to travel in the context of assigning the burden of proof between a relocating custodial parent and the non-custodial parent).
3. The protected liberty interest of a terminal patient dealing with imminent death that was identified in Cruzan ex rel. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 278-79 (1990), is more closely aligned with the liberty interest in this case and is entitled to protection under Article II, Section 18, despite not being protected under the Due Process Clause of the Fourteenth Amendment in Glucksberg.
{24} We note that as part of their interstitial argument, Plaintiffs also asserted that New Mexico has made an enhanced commitment to patient autonomy at the end of life, and Article II, Section 18 should recognize greater protections through the equal
{25} Prior to any hearings held by the district court, the State moved to dismiss Plaintiffs’ complaint based upon substantially the same governmental interests determined to exist by the United States Supreme Court in Glucksberg. See 521 U.S. at 703-04. While the State does not fully concede application of the interstitial approach suggested by Plaintiffs, the district court‘s findings nonetheless identified a basis for establishing greater protections in New Mexico by application of the interstitial approach. First, it held that the distinctive individual interests embodied under Article II, Section 4 are not enumerated as protections within the federal Constitution and these enumerated Nеw Mexico interests have been recognized to support the existence of other inherent rights by our Supreme Court. See Griego, 2014-NMSC-003, ¶ 1 (relying upon Article II, Section 4 to identify the inherent rights “enjoyed by all New Mexicans” that must then be legally measured because “it is the responsibility of the courts to interpret and apply the protections of the Constitution“). Second, its findings concerning the experiences in other states where aid in dying is legal support the notion that the federal analysis in Glucksberg may
B. Aid in Dying as Defined and Applied by the Parties
{26} Plaintiffs contend that aid in dying is “fundamental or, at the very least, important under the New Mexico Constitution.” On appeal, Plaintiffs identify the fundamental rights implicated in aid in dying as (1) the “right to autonomous medical decision making” and (2) the right to “a dignified, peaceful death.” The district court agreed that aid in dying is a fundamental liberty interest protected by the New Mexico Constitution. Constitutional interpretation is an issue of law we review de novo. State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830. In doing so, we must consider the claimed constitutional interest in the context in which the allegedly protected conduct
{27} Plaintiffs do not argue that there is a broad, categorical constitutional right to commit suicide that includes a right to third-party assistance in doing so. Rather, Plaintiffs precisely and narrowly define their claimed liberty interest as one that does not apply to any large classification of citizens. We understand Plaintiffs’ assertion to be that this narrowly defined interest is only fundamental where: (1) a mentally competent patient is capable of giving consent, (2) the patient is diagnosed as terminally ill, (3) the patient requests a prescription for medication that may be ingested to bring about an immediate end to his/her life, and (4) a willing physician applying the proper standard of care determines that it would be appropriate to provide and prescribes the terminal dose of medication for the patient to ingest and end the patient‘s life.
{28} The State concedes that citizens have a right to make their own end-of-life decisions and to bring about their own deaths without the aid or assistance of another person. There is also no dispute that a physician may lawfully act pursuant to statute to support a patient‘s desire to shorten the dying process by removing life-sustaining nutrition, hydration, or mechanical life support, and by administering palliative
C. Aid in Dying Is Not a Fundamental Liberty Interest Protected by the Due Process Clause of the New Mexico Constitution
{29} The Due Process Clause of the New Mexico Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law[.]”
1. The Federal Analysis of Due Process and Glucksberg
{30} In Glucksberg, the United States Supreme Court confirmed that the substantive component of the Due Process Clause under the Fourteenth Amendment protects certain aspects of personal autonomy as fundamental rights notwithstanding that they are not mentioned in the text of the Bill of Rights. Glucksberg, 521 U.S. at 720-21; see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (explaining that the United States Supreme Court has never accepted the view that “liberty encompasses no more than those rights already guaranteed to the individual against [governmental] interference by the express provisions of the first eight [a]mendments to the Constitution“). The Court stated that the government may not interfere with certain liberty interests unless the government meets its burden under a strict scrutiny standard—proving that the infringing statute is narrowly tailored to serve a compelling governmental interest. Glucksberg, 521 U.S. at 721. In Glucksberg, four
{31} Fundamental constitutional rights are enumerated and “specific freedoms protected by the Bill of Rights,” id. at 720, or those later identified by process of the United States Supreme Court‘s enforcement of equality and liberty guaranteed by the Fifth and Fourteenth Amendments. See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects[.]“).
{32} The constitutional question here—whether aid in dying is a constitutional right, fundamental or otherwise—has only been directly answered by one case, Glucksberg. Nearly twenty years have passed since Glucksberg concluded that a physician‘s “assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause” of the Fourteenth Amendment. 521 U.S. at 728. Despite its share of criticism over the years, see Dissenting Op. ¶¶ 98-99, no court, federal or state, has held that the concept of death, including a method of a more dignified premature death with the assistance of another person, is rooted within the protections of bodily integrity under the constitution.
{33} Glucksberg both recognized and relied upon “over 700 years [of] Anglo-American common-law tradition [that] has punished or otherwise disapproved of both suicide and assisting suicide.” 521 U.S. at 711. Glucksberg‘s determination that there exists no precipitate constitutional alleyway to the permanent nationwide legality of physician-assisted suicide also stated its awareness of “serious, thoughtful examinations” regarding aid in dying in various states. Id. at 719. It concluded by permitting “earnest and profound debate about the morality, legality, and practicality
{34} Before addressing Plaintiffs’ due process claim under Article II, Section 18, we are compelled to address the methodologies applied when litigants pursue due process interests they believe to be implied by the words chosen by the founders of our nation and its states. Prior opinions have expressed the legally analytic, yet structurally ideologic, tug-of-war that exists within courthouses across the nation, including the United States Supreme Court itself. Compare Glucksberg, 521 U.S. at 720-21 (weighing the constitutional stature of an asserted right by direct review of “this Nation‘s history and tradition” (internal quotation marks and citation omitted)), with Lawrence, 539 U.S. at 572 (“History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” (alteration, internal quotation marks, and citation omitted)), and Obergefell, __ U.S. at __, 135 S. Ct. at 2598 (“History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.“(citation omitted)). Yet in this instance, any philosophical attempt to resolve that bigger constitutional picture serves only to distract our focus from the real issues to be considered. The fact that Glucksberg‘s
{35} Obergefell suggests that the assisted suicide analysis in Glucksberg remains unchanged. See Obergefell, __ U.S. at __, 135 S. Ct. at 2602. The Obergefell majority briefly addressed aid in dying and distinguished that asserted right of physician assisted suicide from the asserted interest in marriage that was before it. Id. In Obergefell, every member of the United States Supreme Court, including those justices that the Dissenting Opinion identifies to embrace a more evolving due process concept of constitutional analysis and the developed interests in autonomy of self, passed upon an opportunity to question the majority‘s reference to the
{36} Irrespective of the new interpretive dimensions applied by the United States Supreme Court to address differing applications of due process, the substantive fundamental rights that are recognized to exist under the Due Process Clause of the Fourteenth Amendment have always originated from classic personal interactions or embedded principles in our democratic society. These protections include the
{37} Aid in dying, the medical concept of dying with autonomy and dignity, is a relatively recent human phenomena and deserves appropriate public evaluation and consideration. However, as a new legal consideration, it must also be carefully
{38} Lastly, regarding the constitutional stature of aid in dying, the ultimate arbiter of the meaning of the New Mexico Constitution is our New Mexico Supreme Court. See State v. ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 792 (1976), overruled on other grounds by State v. Rondeau, 89 N.M. 408, 412, 553 P.2d 688, 692 (1976) (recognizing that “as the ultimate arbiters of the law of New Mexico[,] [our Supreme Court is] not bound to give the same meaning to the New Mexico Constitution as the United States Supreme Court places upon the United States Constitution“). We have previously recognized that under circumstances where it
2. Inherent Rights Under Article II, Section 4
{39}
{40} At its core, aid in dying challenges the longstanding and historic interest in the protection of life until its natural end as well as the equally longstanding prohibition against assisting another in hastening that process. See Glucksberg, 521 U.S. at 710-16 (observing that our nation‘s historical approach has been to disallow assisting another person in the taking of his/ her own life regardless of the circumstances). This treasured right to life is not only considered sacred under the common law but is also recognized as an inalienable right, even for those condemned to death. See id. at 714-15 (citing Martin v. Commw., 37 S.E.2d 43, at 47 (Va.1946) (“‘The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable.‘“) and Blackburn v. State, 23 Ohio St. 146, 163 (1872) (“‘[E]ven the lives of criminals condemned to death, [are] under the protection ofthe law[.]‘“), overruled in part on other grounds by State v. Staten, 247 N.E.2d 293 (Ohio 1969)). Assisting a condemned criminal in taking his/her own life has also been subjected to punishment. Commw. v. Bowen, 13 Mass. 356 (1816). The inalienable right that defends life is also a prioritized constitutional interest in New Mexico. See Reed, 1997-NMSC-055, ¶ 103 (“When a person‘s life is jeopardized by the actions of the state without due process, no constitutional interest is of greater consequence. . . . The transgression is not only against a single human being but also the most basic principles upon which our system of government was founded.” (emphasis added) (citation omitted)); Trujillo v. Prince, 1938-NMSC-024, ¶ 15, 42 N.M. 337, 78 P.2d 145 (1938) (“The [c]onstitution and statute, allowing compensation for life lost through negligence of another, adopt a policy touching the most important subject of all government, in which it is recognized that human life should be protected as well from negligence as from crime. . . . It could scarcely be said that a man has any greater right in his own life now than he had before the adoption of the constitutional
{41} We understand Plaintiffs to assert that the process of dying during the final stages of life, defined as a terminally ill patient with six months or less to live, is now an accepted constitutional priority that falls within an intimate zone of privacy and that contemporary generations view aid in dying as a fundamental constitutional interest that deserves strict protection from governmental intrusion. However, death and the process of dying are notrights expressly enumerated within
{42} The Dissenting Opinion appears to argue that a new constitutionally recognized event now occurs upon the diagnosis of terminal illness. Id. First, a patient‘s right to privacy automatically creates an inferred end-of-life liberty interest under
{43} We are not persuaded by Plaintiffs’ position that a modern desire to hasten death under the rubric of medical privacy can be inferred to take priority over the express fundamental interest in life set forth in
3. The Exclusionary Defects in Plaintiffs’ Proposed Right to Aid in Dying
{44}
{45} Plaintiffs’ experts testified that in Oregon and Washington, patients who have ingested the medication are overwhelmingly white, married, college-educated,
{46} Furthermore, Plaintiffs’ narrowly defined asserted right to aid in dying would provide constitutional immunity fromcriminal prosecution to only physicians and no one else. For example, the asserted right would not protect a non-physician from criminal prosecution under
{47} Under
D. Whether Aid in Dying Is Protected by the New Mexico Constitution Under Plaintiffs’ Other Theories
{48} Plaintiffs challenged
{49} In applying its due process analysis under
{50} Although the initial burden still rests upon a plaintiff to establish that the legislation at issue infringes upon an important individual interest, the state‘s burden of proof under an intermediate scrutiny analysis is different from the burden required under a strict scrutiny analysis. Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing that the government bears the burden of proof under intermediate scrutiny to “prove
{51} We have discretion under certain circumstances to resolve any issue raised on appeal, regardless of whether the district court had an opportunity to resolve that issue. See Rule 12-216(A) (limiting appellate scope of review to issues where it “appear[s] that a ruling or decision by the district court was fairly invoked,” but granting appellate courts the discretion to consider unpreserved questions involving jurisdiction, general public interest, fundamental error, or fundamental rights of a party). However, we also have the discretion to remand a case to the district court to address alternative claims or theories raised by the parties that it declined to address at the trial level. See Pruyn v. Lam, 2009-NMCA-103, ¶ 17, 147 N.M. 39, 216 P.3d 804 (declining to address on appeal an alternative theory raised in the district court because the district court did not address the alternative theory and remanding the case to the district court to address that theory); State ex rel. Children, Youth & Families Dep‘t v. Frank G., 2005-NMCA-026, ¶ 40, 137 N.M. 137, 108 P.3d 543 (“The general rule in New Mexico for determining the finality of a judgment is whether all issues of law and fact have been determined and the case disposed of by the [district] court to the fullest extent possible.” (internal quotation marks and citation omitted)).
{52} To the extent that aid in dying may be an important interest on par with other important interestsrecognized by our courts, such as the right to access the courts and the right to an appeal, see Wagner, 2005-NMSC-016, ¶ 14, and the right to run for elected office, see Alvarez v. Chavez, 1994-NMCA-133, ¶ 21, 118 N.M. 732, 886 P.2d 461, overruled on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031, the district court should have analyzed
{53} Although these and Plaintiffs’ other alternative claims involve matters of profound public interest, see Rule 12-216, it is more appropriate in this case to
CONCLUSION
{54} We reverse the district court‘s ruling that aid in dying is a fundamental liberty interest under the New Mexico Constitution. Accordingly, we reverse the district court‘s order permanently enjoining the State from enforcing
{55} IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
J. MILES HANISEE, Judge (concurring in part)
LINDA M. VANZI, Judge (dissenting)
{56} I view the New Mexico Constitution to incorporate no right—fundamental or otherwise—to lethal narcotics medically prescribed for the sole purpose of causing the immediate death of a patient. I therefore concur in reversing the judgment of the district court, and join the majority conclusion that neither
{57}
Aid in Dying Is Not A Fundamental Right
{58} I agree with the Majority Opinion‘s analysis holding there to be no Article II-derived fundamental right to aid in dying in New Mexico. First,
{59} Secondly, among other inherent rights,
Aid in Dying Is Not An Important Right To Which Intermediate Scrutiny Applies
{60} It seems innately sensible that a constitutional right of any sort, even one that is non-fundamental but “important,” must be meaningfully rooted within some specific protection afforded by the document being interpreted, or elsewhere by law. Yet the theoretical constitutional origin of an important such right does not automatically emerge from an otherwise flawed constitutional assertion. As noted above, the interest that is aid in dying is not merely one unmentioned by the New Mexico Constitution, but one that contradicts its very language and a first principle for which it stands. See
{61} Furthermore, even were aid in dying suited for a determination of constitutional importance, it would squarely conflict with the State‘s own important
preventing a person from taking the life of another; preventing suicide; preventing assisted suicide; promoting the integrity, healing, and life preserving principles of the medical profession; protecting vulnerable groups from unwanted prеssure to considering aid in dying as the best alternative to other medical options; and promoting human life where aid in dying is not the appropriate medical option despite a patient‘s request for its use.
Majority Op. ¶ 37. It is difficult to envision legislation designed to foster indisputably legitimate state interests such as these to give way to a limited interest that is, as the Majority Opinion points out, societally undeveloped and within its legal infancy in state courts. Id. Of yet greater concern would be the dearth of any regulatory framework enforceable by the State to ensure the safety and efficacy of aid in dying were this judicial body to pronounce its legality. Unlike the three states that have legislatively permitted aid in dying, its practice in New Mexico would occur in a void only minimally filled by externally written and questionably enforceable “professional standards of practice” or some alternately nebulous “established standard of care.” Dissenting Op. ¶¶ 126, 127. In fact, the best examples of why the
{63} Regarding intermediate scrutiny, Griego is our New Mexico Supreme Court‘s most recent topical jurisprudence. Prior to Obergefell‘s ruling that same-sex marriage is protected by the United States Constitution, Griego applied intermediate scrutiny to hold that same-gender couples in New Mexico cannot be denied the “rights, protections and responsibilities of civil marriagе solely because of their sexual orientation.” Griego, 2014-NMSC-003, ¶ 6. But three circumstances distinguish Griego from the issue before us. First, Griego made clear that “none of [the] New Mexico[] marriage statutes specifically prohibit same-gender marriages“; however, each “reflect[ed] a legislative intent” to do so. 2014-NMSC-003, ¶¶ 4, 23. Here, Section 30-2-4 expressly criminalizes “deliberately aiding another in the taking of his [or her] own life[,]” a prohibition twice reiterated in ensuing legislation regarding end of life medical care. See also
{64} With no sensitive class or equal protection consideration like was present in Griego, application of intermediate scrutiny in this instance can only be premised upon the identification of aid in dying as a freshly minted constitutionally important right. See Wagner, 2005-NMSC-016, ¶ 12 n.3 (application of intermediate scrutiny “requires either an important right or a sensitive class“) (emphasis in original). If found to be such, aid in dying would immediately violate the very equality of application demanded of rights guaranteed by the New Mexico Constitution. One class of citizens—terminally ill, mentally competent adults—would possess a right that would be denied to other similarly but not identically situated New Mexicans at
Section 30-2-4 Is Reasonably Related To A Legitimate Government Purpose
{65} A constitutional challenge to governmental interference with an asserted right bestirs a process of review both federally and in New Mexico whereupon courts “decide what interest is involved or to whom the interest belongs[,]” Marrujo, 1994-NMSC-116, ¶ 9, ascertain state interest in prohibiting or curtailing the asserted right, Griego, 2014-NMSC-003, ¶¶ 56-62 (identifying and rejecting the state‘s interest in denying same gender couples the right to marry), and apply whichever of three ensuing standards of legal scrutiny is warranted to fairly balance the interests of the proponent with those of the State: strict, intermediate, or “rational basis.” Marrujo, 1994-NMSC-116, ¶¶ 9-12 (explaining each standard of review and stating that in New Mexico “the same standards of review are used in analyzing both due process and equal protection guarantees“). The rational basis test is “triggered by . . . interests . . . that are not fundamental rights, suspect classifications, important individual interests, [or] sensitive classifications.” Id. ¶ 12. “The burden is on the opponent of the legislation to show that the law lacks a reasonable relationship to a legitimate governmental purpose.” Id. (internal citation omitted). The test applies in circumstances of “personal activities that are not fundamental rights.” Id. Aid in dying is such an activity, and is subject to rational basis review.
{66} To justify its ban on aid in dying, the State relies on many of the same “unquestionably important and legitimate” governmental interests identified to be valid by Glucksberg: (1) preserving life; (2) “protecting the integrity and ethics of the medical profession“; (3) “ensuring adequate regulation of the practice“; and (4)
{67} Lastly, I note that the rational basis test reflects the deference owed by our third branch of government when legislative and executive processes combine to produce laws that govern society. Our uneven decision today amply illustrates why those processes provide better answers to societal questions such as the legality or illegality of aid in dying. Pursuant to them, the New Mexico Legislature may, upon consultation with constituents and citizens, study and propose any bill it deems to be in the best interest of New Mexicans. If such legislation withstands the rigors of bicameral scrutiny, it is next subjected to executive review, after which a governor may sign or veto it. By this exacting process, the people of our state speak to declare their wishes. If an ensuing enactment is legally challenged, courts are then far better positioned to exercise their constitutional role in a properly judicial context.
CONCLUSION
{68} It can be difficult to repress—as judges sometimes must—the innately human inclination to act when invited to provide a decisional option in circumstances where
{69} The question before this panel is not whether aid in dying should be legal, nor whether it can be legalized in a manner consistent with the New Mexico Constitution; we must simply answer whether the legаlity of aid in dying is constitutionally compulsory. It is not. The correct answer does not spring from our own individual or collective “policy preferences [as m]embers of this Court,” Glucksberg, 521 U.S. at 720, but from our informed fidelity to constitutional precedent, institutionally
{70} Based on my agreement that the New Mexico Constitution provides no fundamental right to aid in dying, I concur in the Majority Opinion‘s reversal of the district court‘s final declaratory judgment and order of permanent injunction. I would extend our ruling to additionally conclude that aid in dying is not a constitutionally protected important right or interest. Lastly, I would uphold Section 30-2-4 pursuant to the rational basis standard of review.
J. MILES HANISEE, Judge
{71} The question presented is whether
I. BACKGROUND
{72} Plaintiffs contend that the right to aid in dying is “fundamental or, at the very least, important under the New Mexico Constitution.” I understand the parties’ agreed definition of “aid in dying” to limit the right such that it is implicated only where: (1) a mentally competent adult who is capable of giving consent, and (2) who is terminally ill with a grievous and irremediable medical condition, (3) chooses to
{73} I pause to address the majority and concurring opinions’ attempt to use these limitations in support of the argument that there is no fundamental right to aid in dying, suggesting that recognizing the right would somehow be an act of “selective discrimination” because only “a select few” would have it and because it “also provides a very narrow benefit from prosecution that exclusively favors physicians.” See Majority Op. ¶¶ 44-47 (referring to the limitations as “exclusionary defects“); see also Concurring Op. ¶¶ 62, 64. The contention is untenable. The right to aid in dying, which I would hold is protected under our Constitution, belongs to all New Mexicans. The fact that it may be invoked only by some people who find themselves in certain circumstances is also true of other constitutional rights. The parental autonomy rights recognized by the Constitution (discussed below) apply to all citizens, even though
{74} Plaintiffs invoke two provisions of the New Mexico Constitution: the due process clause of
{75} The district court concluded that Section 30-2-4, as applied to aid in dying, violates
{76} The district court held that “[a] terminally ill, mentally competent patient has a fundamentalright to choose aid in dying pursuant to the
{77} On appeal, the State argues that: (1) there is no fundamental constitutional right to the deliberate assistance of a third party in ending one‘s own life; and (2) the district court‘s ruling violates the doctrine of separation of powers by legalizing conduct that was designated as a crime by the Legislature. Here, as in the district court, the State makes no attempt to justify Section 30-2-4‘s proscription against aid in dying as necessary to serve a compelling or substantial state interest; relying on Glucksberg, it asserts it does not have to. Our review is de novo. Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 52, 320 P.3d 1.
II. DUE PROCESS
{78} The due process clause of the New Mexico Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law[.]”
A. Federal Due Process Precedents
{79} Long before it decided Glucksberg, the United States Supreme Court interpreted the substantive component of the due process clause to protect aspects of personal autonomy as “fundamental rights,” notwithstanding that they are not mentioned in the text of the Bill of Rights, with which the government may not interfere unless it meets its burden under the strict scrutiny standard to prove that the infringing statute is narrowly tailored to serve a compelling governmental interest. See Casey, 505 U.S. at 847 (explaining that the United States Supreme Court has never accepted the view that “liberty encompasses no more than those rights already
{80} These previously recognized fundamental rights include the right to marry, see Loving v. Virginia, 388 U.S. 1, 2 (1967), and aspects of parental autonomy, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the rights to the companionship, care, custody, and management of one‘s children); Stanley v. Illinois, 405 U.S. 645, 651-52 (1972) (preserving the right to conceive, raise, and retain custody of one‘s children); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (decided on equal protection grounds, emphasizing the “fundamental” nature of individual choice about procreation and the сorresponding standard of “strict scrutiny“); Pierce v. Soc‘y of Sisters, 268 U.S. 510, 534-35 (1925) (recognizing the right to raise one‘s children); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (discussing the parental right to control children‘s education). The Court has also recognized a fundamental due process right to bodily integrity. See Casey, 505 U.S. at 849 (citing Washington v. Harper, 494 U.S. 210, 221-22 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952)).
{81} TheCourt has held that there is a fundamental due process right to reproductive autonomy, which includesthe right to purchase and use contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (recognizing a married couple‘s privacy right in their intimate relationship); Eisenstadt v. Baird, 405 U.S. 438, 443-44 (1972) (extending Griswold, under the Equal Protection Clause, to invalidate a state law against distributing contraceptives to unmarried persons), and the right to terminate a pregnancy, see Roe v. Wade, 410 U.S. 113, 165-66 (1973); Casey, 505 U.S. at 833. In Roe and its progeny, the Court recognized and then affirmed the right of a woman to choose whether or not to terminate her pregnancy, reasoning primarily from the personal nature of the decision and its consequences, which are best left to “the woman and her responsible physician.” 410 U.S. at 153; see Casey, 505 U.S. at 846 (affirming Roe‘s central holding).
{82} Writing separately in Roe and its companion case, Bolton, Justice Douglas broadly described, among other liberties, a “freedom to care for one‘s health and person[.]” Doe v. Bolton, 410 U.S. 179, 213 (1973) (Douglas, J., concurring). These cases establish that individuals have an “interest in independence in making certain kinds of important decisions[,]” Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (footnote omitted);see Carey v. Population Servs. Int‘l, 431 U.S. 678, 684-85 (1977), and that “[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter[,]” Casey, 505 U.S. at 847. This interest in self-
{83} Substantive due process decisions pre-dating Glucksberg also clearly recognized, as part of the protected liberty interest, the right to the necessary assistance of a physician. In Carey, 431 U.S. at 684-90, the Court emphasized, in holding that restrictions on the distribution of contraceptives must satisfy strict scrutiny because they clearly burden the fundamental right to make decisions concerning reproduction, that strict scrutiny also applies to state regulations that burden the fundamental right to make such decisions “by substantially limiting access to the means of effectuating that decision.” And the decisions in Roe and Casey held that the right encompasses the assistance of a physician necessary to exercise it, “vindicat[ing] the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.” Roe, 410 U.S. at 165-66. “If an individual
{84} Casey further clarified that, although “[i]t is . . . tempting . . . to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified . . . such a view would be inconsistent with our law.” 505 U.S. at 847; see also Rochin, 342 U.S. at 171 (“To believe that this judicial exercise of judgment could be avoided by freezing ‘due process of law’ at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges[.]“).
{85} In Cruzan, 497 U.S. at 278, the Court stated that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions” and “assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 279;see id. at 281 (“[T]he Due Process Clause protects . . . an interest in refusing life-sustaining medical treatment.“). As Justice O‘Connor explained in her concurring
{86} In Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003), the Court did an about-face, rejecting the substantive due process analysis it had previously applied in addressing fundamental rights. Recasting the respondent‘s claim as an asserted “fundamental right to engage in homosexual sodomy,” id. at 191, the Court dismissed the right as “at best, facetious,”
{87} In Lawrence, the Court overruled Bowers, emphatically rejecting its narrow characterization of the right at issue and its rigid adherence to, and exclusive focus on, an historical analysis in deciding substantive due process claims. Lawrence, 539 U.S. at 567, 577-78. The Lawrence Court adopted Justice Stevens’ dissent in Bowers, which recognized that “the fact that the governing majority in a [s]tate has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.]” Lawrence, 539 U.S. at 577-78 (internal quotationmarks and citation omitted).Stating that “[t]he issue is whether the majority may use the power of the [s]tate to enforce these views on the whole society through operation of the criminal law[,]” the Lawrence Court embraced Casey, quoting its statement that the Court‘s ” ‘obligation is to define the liberty of all, not to mandate
{88} Bowers, the Lawrence Court held, “was not correct when it was decided, and it is not correct today.” Lawrence, 539 U.S. at 578. Reiterating Casey‘s pronouncement that ” ‘[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter[,]’ ” Lawrence, 539 U.S. at 578 (quoting Casey, 505 U.S. at 847), Lawrence concluded,
Had those who drew and ratified the Due Process Clauses . . . known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in factserve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
{89} The Court cemented its rejection of a rigid historical analysis as dispositive of substantive due process rights in Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 (2015), in which the Court held that the federal due process clause protects a liberty interest in marrying a person of the same sex and requires states to license and
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a chapter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution‘s central protections and a received legal stricture, a claim to liberty must be addressed.
B. Washington v. Glucksberg
{90} In Glucksberg, which was decided after Bowers but before Lawrence and Obergefell, an alliance of physicians and terminally ill patients sought a declaration that a Washington statute criminalizing “promoting a suicide attempt,” defined as “knowingly caus[ing] or aid[ing] another person to attempt suicide,” violated the federal due process clause. Glucksberg, 521 U.S. at 707-08 (internal quotation marks and citation omitted). The plaintiffs had asserted “a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.” Id. at 708 (internal quotation marks and citation omitted). The Supreme Court recast the issue as “whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so[,]” id. at 723, and restricted its inquiry to whether that right had previously been recognized in the course of “our Nation‘s history, legal traditions, and practices,” id. at 710, 721. The Court concluded that a ” ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause” because “[t]he history of the law‘s treatment of assisted suicide in this country has been and
{91} The Court distinguished Cruzan on the ground that the right the Court assumed existed in that case was rooted in “the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment,” and thus “was entirely consistent with this Nation‘s history and constitutional traditions,” while “[t]he decision to commit suicide with the assistance of another . . . has never enjoyed similar legal protection.” Glucksberg, 521 U.S. at 725. The Court characterized the broad, rights-protective language of Casey as a general description of personal activities that had previously been identified as “so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment[,]” concluding without analysisthat the fact that “many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected[.]” Glucksberg, 521 U.S. at 727-28.
{92} Five Justices wrote separately, reserving the possibility that the Court might recognize a constitutional right to “physician-assisted suicide” in certain circumstances, while relying on different grounds and different reasoning. Justice Stevens concurred in the result, explaining that all of thе patient plaintiffs had died during the litigation and that the majority opinion held that “Washington‘s statute prohibiting assisted suicide is not invalid ‘on its face[.]’ ” Id. at 739 (Stevens, J., concurring). Justice O‘Connor joined the majority opinion “because [she] agree[d] that there is no generalized right to ‘commit suicide[,]’ ” stating that there was no need to reach “the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death” in the context of what she characterized as the facial challenges presented in Glucksberg and the related case, Vacco v. Quill, 521 U.S. 793 (1997).11 Glucksberg, 521 U.S. at 736 (O‘Connor, J., concurring). Justice Ginsburg concurred “substantially for the reasons stated by Justice O‘Connor.” Id. at 789 (Ginsburg, J., concurring). Justice Breyer also joined Justice O‘Connor‘s opinion, “except insofar as it joins the majority[,]” writing
{93} Thus, Justices O‘Connor and Stevens, and Justices Ginsburg and Breyer (to the extent they joined Justice O‘Connor‘s concurrence) viewed the majority opinion as having rejected a facial challenge. The majority opinion, moreover, agreed that its holding “would not ‘foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more
{94} I need not discuss Glucksberg in exegetical detail. Given that Lawrence and Obergefell emphatically rejected an analysis of unenumerated due process liberty interests upon which Glucksberg, like Bowers, relied (an analysis focusing solely on the historical roots of the asserted right) and just as emphatically embraced analytical principles that Glucksberg rejected (the liberty rights analysis of Casey and other decisions addressing due process liberty interests), it is impossible to conclude that the due process analysis applied in Glucksberg is dispositive of the issue today, even as a matter of federal law.
{95} The assumption that a fundamental right exists only if there is a history and tradition of protecting it, shared by Bowers and Glucksberg, does not comport with the Supreme Court‘s analysis of due process liberty rights in decisions issued before and afterward. As one noted constitutional scholar has pointed out, “laws prohibiting interracial marriage were far more ‘deeply rooted in this Nation‘s history and
{96} The opinion of the Court in Obergefell briefly addressed Glucksberg, in rejecting respondents’ argument that petitioners’ assertion of “a new and nonexistent” right was inappropriate in light of Glucksberg. See Obergefell, ___ U.S. at ___, 135 S. Ct. at 2602. The Court said that, although Glucksberg‘s requirement that liberty “must be defined in a most circumscribed manner, with central reference to specific historical practices . . . may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights[.]” Id. The majority and concurring opinions in this case seize on this statement as supporting their contention that Glucksberg‘s analysis still appliesto aid in dying. See Majority Op. ¶ 35; Concurring
{97} If the Obergefell Court had applied a Glucksberg analysis, it could not have identified a history and tradition protecting the right to marry another of the same sex, just as it could not identify a history and tradition protecting the right to engage in same-sex sodomy when it applied that restrictive analysis in Bowers. I can think of no principled reason why there should be two testsfor substantive due process rights; one for aid in dying, and one for everything else. Although the opinion of the Court in Obergefell left Glucksberg untouched (again it had no reason to reach out to overrule it), the dissent correctly acknowledged that the majority‘s position “require[d] it to effectively overrule Glucksberg.” Obergefell, ___ U.S. at ___, 135 S. Ct. at 2621 (Roberts, J., dissenting). It remains to be seen, of course, what the outcome would be if the Court were to address aid in dying again, but the conclusion is inescapable that the United States Supreme Court itself has disclaimed the substantive due process analysis upon which Glucksberg‘s holding rests.
{98} Reams of critical analysis by numerous commentators, preeminent constitutional scholars among them, also belie the State‘s conclusory contention that Glucksberg is not “flawed,” and so should be followed under our interstitial approach to analysis of rights afforded by provisions of our Constitution that have federal analogues (more on that later). See, e.g., Chemerinsky, supra, at 1506 (“The
{99} Commentators have noted, for example, the majority‘s recharacterization of the right asserted by the plaintiffs. See, e.g., Ruth C. Stern & J. Herbie Difonzo, Stopping for Death: Re-Framing Our Perspective on the End of Life, 20 U. Fla. J.L. & Pub. Pol‘y 387, 418 (2009) (“In neither the majority nor in the five concurring opinions did the justices correctly or coherently define the questions presented.“). Even scholars who have questioned whether Lawrence necessarily means that the United States Supreme Court will recognize a right to aid in dying have described Glucksberg‘s
{100} The State does not address the fractured nature of Glucksberg‘s concurring opinions. Indeed, counsel for the State said at oral argument that he was not “properly equipped to discuss . . . some of the nuanced views” stated in those opinions. And, although Obergefell was not decided until after oral argument, Lawrence had been decided, yet the State did not acknowledge that Lawrence unequivocally rejected the rigid historical analysis upon which Bowers and Glucksberg relied exclusively, and instead embraced a concept of liberty that protects “an autonomy of self,” which Glucksberg disavowed.
{101}
{102} But even accepting the State‘s conclusory assertion that Glucksberg is not “flawed,” neither the State nor the majority or concurring opinions offer any reason why it should be treated as persuasive, given the United States Supreme Court‘s current analysis of due process liberty interests and over seventeen years of experience (and evidence) with aid in dying, which the Glucksberg Court did not have before it. Whatever the status of Glucksberg in the federal courts, the bottom line is that it does not bind us here, and our analysis of rights afforded by the New Mexico Constitution—the only source of rights invoked by Plaintiffs—is not “inextricably tied” to it. See, e.g., N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 37, 126 N.M. 788, 975 P.2d 841; State v. Gutierrez, 1993-NMSC-062, ¶¶ 16, 50-56, 116 N.M. 431, 863 P.2d 1052.
{103} Our Supreme Court has previously interpreted the New Mexico due process clause more expansively than the United States Supreme Court has interpreted the federal due process clause, holding in Montoya v. Ulibarri, 2007-NMSC-035, ¶ 23, 142 N.M. 89, 163 P.3d 476, that New Mexico‘s due process clause requires that habeas petitioners must be permitted to assert freestanding claims of actual innocence. See also State v. Vallejos, 1997-NMSC-040, ¶ 32, 123 N.M. 739, 945 P.2d 957 (holding that all forms of entrapment violate New Mexico‘s due process clause; rejecting widely criticized U.S. Supreme Court precedent to the contrary as to the federal counterpart).13 And nothing in our Supreme Court‘s most recent interpretation of
{104} Thus, to the extent it is appropriate to be guided by federal law in determining whether New Mexico‘s due process clause protects aid in dying, the sound and persuasive analysis is that which embraces the view of liberty, autonomy, and privacy elucidated in the Casey/Lawrence/Obergefell line of cases and rejects the analysis of Bowers and Glucksberg. Even if Glucksberg remains good law, as a matter of
{105} The majority opinion asserts that “[i]n order to justify a departure from Glucksberg, Plaintiffs must have shown precisely why greater fundamental due
{106} For example, the majority opinion asserts that “there is no basis under the Gomez factors to permit the creation of an interstitial constitutional right under Article II, Section 4 of the New Mexico Constitution.” Majority Op. ¶ 43. But we use interstitial analysis to determine whether we should follow federal precedent in interpreting provisions of our Constitution that have federal analogues. See, e.g., Gomez, 1997-NMSC-006, ¶¶ 16, 21-23. Section 18‘s due process clause has a federal counterpart; Section 4 does not. I agree with the district court that Section 4 is a
{107} I also reject the concurring opinion‘s characterization of our interstitial approach as “narrow” and as permitting departure from federal precedent based only on a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics. See Concurring Op. ¶ 58. These grounds were stated in Gomez, of course, 1997-NMSC-006, ¶ 19, and have been frequently cited since then. But our Supreme Court has subsequently described these grounds as merely examples of reasons warranting departure from federal precedent. See Leyva, 2011-NMSC-009, ¶ 40 n.6 (describing these three grounds as “examples of reason for departure“); id. ¶ 49.
{108} The majority opinion appears to confuse the requirements for preserving a claim predicated on a provision of our Constitution that has a federal counterpart with
{109} Our interstitial approach does not require (or even permit) us to treat Glucksberg as dispositive of this case simply because it exists. See Gomez, 1997-NMSC-006, ¶ 17; see also Arizona v. Evans, 514 U.S. 1, 8 (1995) (“[S]tate courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.“). It obligates us to consider whether the federal analysis articulated in Glucksberg is persuasive because its underlying reasoning “is better calibrated to protect the rights
D. Article II, Section 4 of the New Mexico Constitution
{110} Plaintiffs also assert a right to aid in dying under the New Mexico Constitution‘s inherent rights guarantee, which provides, “All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.”
{111}
{112} Equally clear is that this case involves a great deal more than a vague reference to “safety and happiness.” Far more significant, and relevant here, is that the framers of our Constitution saw fit to include in their enumeration of rights guaranteed as “inherent” the right—and agency to effectuate the right—to “enjoy[] and defend[]”
{113} I think it is plain that Section 4 supplements and expands the liberty rights afforded by Section 18‘s due process clause to ensure maximum protection for the lives and liberty of New Mexicans. The express textual rights to “enjoy[] and defend[]” these interests can mean nothing less. I would hold that, whether construed on its own terms as a constitutional provision with no federal analogue, or deemed a “distinctive characteristic” of the New Mexico Constitution mandating rejection of a federal constitutional analysis affording less protection, see, e.g., NARAL, 1999-NMSC-005, ¶¶ 28-43, Section 4 affords New Mexico citizens the right and agency to defend their lives and liberty by availing themselves of aid in dying, as that term is defined herein.
{114}
III. THE ASSERTED STATE INTERESTS
{115} The determination that our Constitution affords New Mexicans a right to aid in dying does not end the matter. The next question is whether the State has carried its burden to prove that Section 30-2-4‘s infringement of that right is constitutionally justified. See Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 12, 137 N.M. 734, 114 P.3d 1050. We apply strict scrutiny when the interest at issue is a “fundamental personal right or civil liberty” guaranteed by the Constitution. Marrujo v. N.M. State Highway Transp. Dep‘t, 1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747. Strict scrutiny requires the government to prove that the infringing statute is narrowly
{116} Throughout this litigation, the State has relied exclusively on the governmental interests asserted by the State of Washington in Glucksberg: (1) preserving life; (2) “protecting the integrity and ethics of the medical profession“; (3) “ensuring adequate regulation of the practice“; and, for the first time on appeal, (4) preventing suicide and treating its causes. Beyond simply reciting these interests, the State has made virtually no effort to explain how any of them justify applying Section 30-2-4 to aid
A. Interests in Life and Preventing Suicide
{117} No one doubts, as a general abstract matter, that the government has a compelling interest in preserving human life. The specific question presented in this case, however, is whether the State has a compelling—or substantial—interest in prolonging the lives of mentally competent, terminally ill patients, the quality of whose lives can no longer be meaningfully improved by treatment, and whose dying process is so intolerable that they wish to end their lives. The State is unable to articulate an interest in prolonging life in this narrow circumstance and concedes that it has no interest in preventing the terminally ill from hastening their deaths and
{118} Nor does the law treat the safeguarding of human life as a governmental interest that is absolute, subject to no exceptions. For example, under current New Mexico law and United States Supreme Court precedent, any patient may refuse or withdraw life-sustaining treatment, may voluntarily stop eating and drinking, and may obtain from a qualified physician medication that will deeply sedate her—and thereby hasten death—to alleviate suffering. See generally
{119} The State‘s asserted interest in “preventing suicide and treating its causes,” raised for the first time on appeal, is unquestionably significant but irrelevant in this
{120} This unchallenged expert testimony is supported by amici New Mexico Psychological Association and the American Medical Women‘s Association, American Medical Students Association, and New Mexico Public Health Association, who agree that the reasoning on which a mentally competent, terminally ill person bases a decision to end his or her life is distinct from the reasoning a clinically depressed person uses to justify suicide. As Justice James C. Nelson eloquently summarized in Baxter v. Montana,
“Suicide” is a pejorative term in oursociety. . . . The term denigrates the complex individual circumstances that drive persons generally—and, in particular, those who are incurably ill and face prolonged illness and agonizing death—to [seek aid in dying]. The term is used to generate antipathy, and it does. [The patientsseeking aid in dying] do not seek to commit “suicide.” Rather, they acknowledge that death within a relatively short time is inescapable because of their illness or disease. And with that fact in mind, they seek the ability to self-administer, at a time and place of their choosing, a physician-prescribed medication that will assist them in preserving their own human dignity during the inevitable process of dying. Having come to grips with the inexorability of their death, they simply ask the government not to force them to suffer and die in an agonizing, degrading, humiliating, and undignified manner. They seek nothing more nor less[.]
2009 MT 449, ¶ 71, 354 Mont. 234, 224 P.3d 1211 (Nelson, J., specially concurring).
B. The Integrity of the Medical Profession and Adequate Regulation
{122} The State makes three arguments concerning its interest in the integrity of the medical profession and the necessity for regulations: (1) Glucksberg recognized the interest; (2) there are no preexisting legislative definitions of “mentally competent” and “terminally ill“; and (3) there is no regulation of the manner in which a patient makes the request. The stipulated factual record undercuts these arguments, and the State‘s unsupported conclusions are insufficient to justify
{123} The State‘s reliance on Glucksberg‘s stated concerns about protecting the integrity and ethics of the medical profession is unavailing. First, to the extent that the Glucksberg Court generally accepted that “the American Medical Association, like many other medical and physicians’ groups, has concluded that physician-assisted suicide is fundamentally incompatible with the physician‘srole as healer[,]”
{125} Third, the State ignores the fact that, for all practical purposes, physicians already participate in helping terminal patients to end their lives. Some doctors do this by ending medical care necessary to sustain life. And, as explained above, when doctors terminally sedate patients, they know that they are “hastening that moment at which that death will occur.”20 The State has not cited any example where the integrity and/or ethics of the medical profession have been called into question in jurisdictions in which aid in dying is practiced; the unspecified concern it adverts to here is speculative and bereft of evidentiary support.
{126} The State‘s asserted interest in adequate regulation rests on the flawed premise that such legislation is required. As a legal matter, the existence of regulations is surely not a prerequisite to the recognition of a constitutional right. As a factual
{127} Dr. Kress, who practices aid in dying in Montana, which has no regulatory framework, testified at length about how doctors in that state would be liable for malpractice were they to prescribe the medication without “tapping into” the existing standard of care for aid in dying that has developed over seventeen years of clinical experience in Oregon. Today, that established standard of care, which the State does not dispute exists and to which physicians in New Mexico would be held, includes the requirements that an eligible patient for aid in dying must be a terminally ill, mentally competent adult who has made repeated requests over multiple visits, and who is able to self-administer the medication. Mental competence means that the patient does not have any gross cognitive or psychological impairment and that she
{128} In addition to civil liability fоr failing to comply with the standard of care, as Dr. Kress described, all doctors in New Mexico are subject to regulation by the state medical board, which has been tasked by the Legislature with protecting the public from “the improper, unprofessional, incompetent and unlawful practice of medicine,” and which supervises the profession by licensing competent physicians and by disciplining those whose performance falls below its requirements.
{129} The State‘s attempt to justify the blanket prohibition of a liberty interest that it concedes is “important and fundamental,” solely on the basis that the Legislature has not enacted legislation to ward off dangers that have not before materialized, is without merit. Such an approach would obliterate constitutional recognition and protection of virtually any liberty interest requiring the intervention of the medical profession, including the right found in Roe, 410 U.S. at 155, and affirmed in Casey, 505 U.S. at 846. Although I conclude that the need for regulation of aid in dying is not necessary given the existing standard-of-care framework, the Legislature is free to enact appropriate guidelines to ensure that only the terminally ill who make a voluntary and informed decision may receive aid in dying. What it may not do is intrude upon the doctor-patient relationship21 as it relates to the constitutional right to aid in dying by criminalizing the provision of aid in dying by a willing physician at the request of a mentally competent, terminally ill patient.
C. Abuse of Vulnerable Populations and Slippery Slope
{131} Abuse of any sort is, of course, a legitimate governmental concern in general, but this “interest” is far too abstract to justify infringement of the constitutional right to aid in dying. First, the detailed protocols and established standard of care—requiring, among other things, the mental competence and informed consent of the patient, ability of the patient to self-administer the medication, a diagnosis of terminal illness by two physicians, and repeated requests with waiting periods in between—undeniably guard against the speculative dangers that amici raise. Moreover, amici fail to explain how the circumscribed right to aid in dying would
{132} And again, as previously noted, the State and amici have not provided a single example of abuse in any United States jurisdiction where aid in dying is legal. The record contains no such evidence, and almost two decades of substantial data from Oregon and elsewhere are to the contrary. See Or. Pub. Health Div., Oregon‘s Death with Dignity Act Rep. (2014); Wash. State Dept. of Health, 2013 Death with Dignity Act Rep., Exec. Summary (2014). According to the data and evidence described above, issues of coercion, insidious bias, and societal indifference have not occurred and have not threatened the safety of people who are poor, elderly, uninsured, or disabled.23 See Oregon‘s Death with Dignity Act Rep., supra, at 1-6; Wash. State Dept. of Health 2013 Death with Dignity Act Rep., supra, at 1-12; see also Margaret P. Battin, et al., Legal Physician-Assisted Dying in Oregon and the Netherlands: Evidence Concerning the Impact on Patients in “Vulnerable” Groups, 33 J. Med. Ethics 591, at 591 (2007) (finding no evidence of “heightened risk” to patients with
{133} Trial experts testified that the potential for mistaken diagnoses are low. Physicians have established referral pathways to learn about safe ways to prescribe the medication, including methods for ensuring terminality and competency—medical diagnoses and determinations they are historically and routinely called upon to make outside the context of aid in dying. For instance, physicians frequently assess competency in order to obtain informed consent for surgical and other medical procedures. Doctors are typically capable of differentiating between clinical depression and a sincere, informed decision to seek aid in dying, and they are required by the standard of care to take a patient-centered approach to the issue,
{134} In my view, the potential for abuse is far more likely in other circumstances not proscribed by law. For example, the State suggested at oral argument that patients could legally stockpile their medication and ingest it to end their lives. And, as discussed, doctors already help patients end their lives by withholding essential medical care and by practicing terminal sedation, neither of which are subject to
Indeed, the same concern [about abuse] can be raised about the right to refuse medical care. A person could choose to terminate treatment because of pressure from family members or to reduce their emotional or financial burdens. Notwithstanding this concern, the [United States Supreme] Court recognized a right to refuse medical care in Cruzan. There is no reason why the concern is weightier or more powerful in the context of [aid in dying].
Besides, if the concern is pressure, the solution should be to lessen the risk of pressure, not to prohibit [aid in] dying. And if the government is concerned that individuals might feel pressure to save their families from large expenses, then the government should ensure that the costs of medical care are adequately covered.
Chemerinsky, supra, at 1512.
{136} Finally, amici raise a host of slippery slope arguments, including that aid in dying will assuredly lead to such horrors as euthanasia (voluntary and non-voluntary) of adults and children, that it will be administered by non-physician third parties, and that courts will soon be asked to extend the constitutional right to aid in dying to any competent person, regardless of whether or not the person is terminally ill. These cataclysmic predictions provide no basis to deny a constitutionally protected right to aid in dying. As the United States Supreme Court observed in Cruzan, “it is the better part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject.” 497 U.S. at 278 (alteration, internal quotation marks, and citation omitted); see also Marozsan v. United States, 852 F.2d 1469, 1498 (7th Cir.1988) (Easterbrook, J., dissenting) (stating that “[t]he terror of extreme hypotheticals produces much bad law“). The State has had “ample opportunity to articulate a constitutionally adequate justification” for prohibiting aid in dying. Griego, 2014-NMSC-003, ¶ 68. It has not done so.
IV. THE REMAND PROPOSAL
{138} The author of the majority opinion, having concluded that the right asserted by Plaintiffs is not a fundamental right, would remand for the district court to (1) determine whether the State has met its burden to justify
{139} First, the question whether a constitutional right exists is a pure question of law, as is the standard to be applied in determining whether a governmental infringement of that right is constitutionally justified, i.e., the level of scrutiny to be applied to the challenged statute. State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489 (“[The appellate courts] review issues of statutory and constitutional interpretation de novo.“); Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 15, 138 N.M. 331, 120 P.3d 413 (“The determination of which level of scrutiny is applicable under the Constitution is a purely legal question, and is reviewed de novo.“); Hyden v. N.M. Human Servs. Dep‘t, 2000-NMCA-002, ¶ 12, 128 N.M. 423, 993 P.2d 740 (stating that interpretation of the state constitution is reviewed de novo). This means that we consider the legal question whether our Constitution protects the right asserted without any deference to the district court‘s conclusions on the issue. In re Estate of Duran, 2003-NMSC-008, ¶ 14, 133 N.M. 553, 66 P.3d 326 (explaining that the appellate court is not bound by district court‘s legal conclusions and “may independently draw [its] own conclusions of law on appeal” (internal quotation marks and citation omitted)); Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, ¶ 5, 121 N.M. 471, 913 P.2d 659 (stating that the appellate court does not defer to district court‘s legal conclusions but “determine[s] whether the [district] court correctly applied the law to the facts of the case“). And that means that a remand would be utterly pointless; all the more so here because the district court‘s conclusion that the asserted right is protected by our Constitution as a fundamental right necessarily includes the conclusion that the right is at least important, and the State has conceded that it cannot meet its burden under intermediate scrutiny to demonstrate a substantial governmental interest sufficient to justify
[E]ven if the court is not alerted, of what real import is that to the resolution of a pure question of law? The factual record here is not subject to any material dispute. This Court can decide the . . . issue whether or not the trial court addressed it. While in a perfect world the trial court should address each issue first, that aspiration should not be determinative. The statewide interest in development of our state Constitution tips the balance in favor of proceeding, and we should not hesitate to do so.
Garcia, 2009-NMSC-046, ¶ 63 (Bosson, J., concurring). Although Justice Bosson‘s comments were made in the context of discussing the requirements for preserving a
{140} To the extent the author of the majority opinion believes that the district court should make further “findings,” the factual record is undisputed, and our review is de novo on this aspect of the case as well. See City of Albuquerque v. One 1984 White Chevy Ut., 2002-NMSC-014, ¶ 5, 132 N.M. 187, 46 P.3d 94 (explaining that the appellate courts review issues under de novo standard when there are no disputed material facts); State v. Esparza, 2003-NMCA-075, ¶ 13, 133 N.M. 772, 70 P.3d 762 (“Because the underlying facts . . . are not in dispute, we review the legal issues presented de novo.“). The majority opinion‘s concern with factual findings in a case in which the facts are entirely undisputed is baffling in itself. But even assuming a legitimate concern, the author of the majority opinion does not identify a single fact purpоrtedly necessary to resolve the legal issues presented in this case that is not already contained in the stipulated record; the opinion, in fact, does not address the factual record at all. Nor does the State argue that the record is incomplete, or that it lacked the opportunity to present its case in the district court. To the contrary, the State‘s counsel said below that “the issues are not fact disputes but legal disputes”
{141} The contention that remand is necessary so that the district court can rule on other constitutional theories raised by Plaintiffs that the court saw no need to reach in light of its ruling is contrary to elementary legal principles. Appellate courts routinely affirm district court rulings on purely legal issues where the record allows, even when the district court relied on different reasoning, and when the court did not consider the issue at all. State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (“[W]e may affirm the district court‘s order on grounds not relied upon by the district court if those grounds do not require us to look beyond the factual allegations that were raised and considered below.” (internal quotation marks and citation omitted)); State v. Snyder, 1998-NMCA-166, ¶ 8, 126 N.M. 168, 967 P.2d 843 (considering a state constitutional issue that was not considered or ruled upon in the district court); State v. Beachum, 1972-NMCA-023, ¶ 8, 83 N.M. 526, 494 P.2d 188 (“A decision of the trial court will be upheld if it is right for any reason.“). No one argues that the district court erred by failing to determine whether the right to aid in dying is “important” even if it is not “fundamental,” as the district court held it was. Nor does anyone claim that the district court erred by failing to rule on
{142} The law does not require “the doing of useless things.” State ex rel. Peters v. McIntosh, 1969-NMSC-103, ¶ 9, 80 N.M. 496, 458 P.2d 222. The facts and principles necessary to a correct holding are known. A remand would be pointless and would needlessly consume the resources of the parties and the courts while delaying final disposition by our Supreme Court.
V. SEPARATION OF POWERS
{143} The State contends that New Mexico courts may not consider whether the Legislature‘s criminalization of aid in dying is unconstitutional because doing so
{144} The State‘s argument based on the lack of existing regulations specifically governing the conduct of physicians who provide aid in dying has no merit. As a threshold matter, this argument has nothing to do with the separation of powers; rather, it concerns the type and scope of procedural safeguards the State says are necessary to govern the practice of aid in dying. The State‘s argument, moreover, is
{145} The State‘s argument that the district court impermissibly intruded upon the exclusive province of the Legislature evinces a fundamental misunderstanding of the role of judicial review. Indeed, a decision holding
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One‘s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Id. (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). The Court went on to recognize for the first time a right to same-sex marriage and held that our marriage laws were unconstitutional insofar as they applied only to opposite-sex couples. Id. ¶ 69; see also Obergefell, ___ U.S. at ___, 135 S. Ct. at 2605 (“The
{147} While I recognize that
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{148} The question at the heart of this case is who has the right to decide when and how a mentally competent, terminally ill New Mexican will end her life after the options for meaningful improvement of her terminal condition have been exhausted, such that “life” means being forced to endure unbearable suffering until death arrives.25 I recognize that citizens may disagree about the profound implications of a terminally ill individual‘s decision to end her suffering by ending her life, but our judicial obligation is to give effect to the liberty interests of all New Mexicans in accordance with the guarantees of our Constitution. Other choices and decisions central to personal autonomy and dignity have long enjoyed the status of constitutionally protected liberty interests. I would hold that the New Mexico
LINDA M. VANZI, Judge
Notes
Rule 12-201(C) reads:
An appellee may, without taking a cross-apрeal or filing a docketing statement or statement of the issues, raise issues on appeal for the purpose of enabling the appellate court to affirm, or raise issues for determination only if the appellate court should reverse, in whole or in part, the judgment or order appealed from.
As Justice Souter reasoned in Glucksberg:
There is . . . [another] reason for claiming that a physician‘s assistance here would fall within the accepted tradition of medical care in our society, and the abortion cases are only the most obvious illustration . . . . While the Court has held that the performance of abortion procedures can be restricted to physicians, the Court‘s opinion in Roe recognized the doctors’ role in yet another way. For, in the course of holding that the decision to perform an abortion called for a physician‘s assistance, the Court recognized that the good physician is not just a mechanic of the human body whose services have no bearing on a person‘s moral choices, but one who does more than treat symptoms, one who ministers to the patient. This idea of the physician as serving the whole person is a source of the high value traditionally placed on the medical relationship. Its value is surely as apparent here as in the abortion cases, for just as the decision about abortion is not directed to correcting some pathology, so the decision in which a dying patient seeks help is not so limited. The patients here sought not only an end to pain (which they might have had, although perhaps at the price of stupor) but an end to their short remaining lives with a dignity that they believed would be denied them by powerful pain medication, as well as by their consciousness of dependency and helplessness as they approached death. In that period when the end is imminent, they said, the decision to end life is closest to decisions that are generally accepted as proper instances of exercising autonomy over one‘s own body, instances recognized under the Constitution and the State‘s own law, instances in which the help of physicians is accepted as falling within the traditional norm.
Glucksberg, 521 U.S. at 779 (citations omitted).
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except [where constitutionally excepted].