Case Information
*1
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: June 30, 2016
Docket No. S-1-SC-35478
KATHERINE MORRIS, M.D., AROOP
MANGALIK, M.D., and AJA RIGGS,
Plaintiffs-Petitioners,
v.
KARI BRANDENBURG, in her official capacity
as District Attorney for Bernalillo County, New
Mexico, and GARY KING, in his official capacity
as Attorney General of the State of New Mexico,
Defendants-Respondents.
ORIGINAL PROCEEDING ON CERTIORARI
Nan G. Nash, District Judge
Kennedy, Kennedy & Ives, LLC
Laura Schauer Ives
Albuquerque, NM
ACLU of New Mexico Foundation
Alexandra Freedman Smith
Albuquerque, NM
Disability Rights Legal Center
Kathryn L. Tucker
Los Angeles, CA
for Petitioners
Fuqua Law & Policy, P.C.
Scott Fuqua
Santa Fe, NM
for Respondents
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Emil J. Kiehne
Albuquerque, NM
Alliance Defending Freedom
Catherine Glenn Foster
Washington, DC
for Amici Curiae New Mexico State Senators Mark Moores, Steven P. Neville, et al. Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP Carolyn M. “Cammie” Nichols
Albuquerque, NM
Compassion & Choices
Kevin Diaz
Portland, OR
for Amicus Curiae Compassion & Choices
Montgomery & Andrews, P.A.
Lara Katz
Santa Fe, NM
Stephen F. Gold
Philadelphia, PA
for Amici Curiae Not Dead Yet, et al.
Coberly & Martinez, LLLP
Kristina Martinez
Santa Fe, NM
for Amicus Curiae The ALS Association New Mexico Chapter Robert Schwartz
Albuquerque, NM
for Amicus Curiae New Mexico Psychological Association Garcia Ives Nowara LLC
Molly Schmidt Nowara
Albuquerque, NM
Covington & Burling LLP
Christina G. Kuhn
Julia F. Post
Michael S. Labson
Washington, DC
for Amici Curiae American Medical Women’s Association, et al.
Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A.
Juan L. Flores
Jaime L. Dawes
Albuquerque, NM
for Amici Curiae Archbishop John Charles Wester of the Archdiocese of Santa Fe, et al.
OPINION
CHÁVEZ, Justice.
{1} Since at least 1963 it has been a crime in New Mexico to deliberately aid another in the taking of his or her own life. See NMSA 1978, § 30-2-4 (1963). Yet a physician who withdraws life-sustaining treatment from a patient, at the patient’s direction, and in compliance with the Uniform Health-Care Decisions Act (UHCDA), NMSA 1978, §§ 24-7A-1 to -18 (1995, as amended through 2015), is immune from criminal liability for such actions. Section 24-7A-9(A)(1). And a physician who administers pain medication to a patient in compliance with the New Mexico Pain Relief Act, NMSA 1978, §§ 24-2D-1 to -6 (1999, as amended through 2012), even if doing so hastens the patient’s death, is also immune from criminal liability. § 24-2D-3. The question in this case is whether a mentally competent, terminally ill patient has a constitutional right to have a willing physician, consistent with accepted medical practices, prescribe a safe medication that the patient may self-administer for the purpose of peacefully ending the patient’s life. If we answer yes to the question, a willing physician may assist the patient and avoid criminal liability because Section 30-2-4 would be unconstitutional as applied to the physician. If we answer no to the question, the alternatives for the patient are to (1) endure the prolonged physical and psychological consequences of a terminal medical condition that the patient finds intolerable; or (2) take his or her own life, possibly by violent or dangerous means. {2} It is not easy to define who would qualify to be a terminally ill patient, or what would be the criteria for assuring a patient is competent to make an end-of-life decision, or what medical practices are acceptable to aid a patient in dying, or what constitutes a safe medication. These concerns require robust debate in the legislative and the executive branches of government. Although the State does not have a legitimate interest in preserving a painful and debilitating life that will imminently come to an end, the State does have a legitimate interest in providing positive protections to ensure that a terminally ill patient’s *4 end-of-life decision is informed, independent, and procedurally safe. More specifically, the State has legitimate interests in (1) protecting the integrity and ethics of the medical profession; (2) protecting vulnerable groups—including the poor, the elderly, and disabled persons—from the risk of subtle coercion and undue influence in end-of-life situations, including pressures associated with the substantial financial burden of end-of-life health care costs; and (3) protecting against voluntary or involuntary euthanasia because if physician aid in dying is a constitutional right, it must be made available to everyone, even when a duly appointed surrogate makes the decision, and even when the patient is unable to self- administer the life-ending medication. Therefore, we decline to hold that there is an absolute and fundamental constitutional right to a physician’s aid in dying and conclude that Section 30-2-4 is not unconstitutional on its face or as applied to Petitioners in this case. I. BACKGROUND AND PROCEDURAL HISTORY Although her cancer is now in remission, Aja Riggs says that it would bring her “peace of mind” to have the option to end her suffering by choosing aid in dying if she eventually becomes terminally ill. Ms. Riggs was diagnosed with uterine cancer in August 2011. After a surgery several months later, doctors informed her that her cancer was more extensive than they had initially thought and was “the most aggressive kind.” At that point, she began chemotherapy. The chemotherapy caused Ms. Riggs to feel “extreme fatigue,” sometimes to the point where “it was too much effort to even talk.” She suffered serious adverse reactions to the cancer treatments, including several trips to the emergency room for an anaphylactic reaction, severe pain in her veins, and a nearly fatal infection. Several months into chemotherapy, her doctors discovered a cancerous tumor, and Ms. Riggs immediately began additional radiation therapy. She experienced many painful side effects from this treatment, including a burning sensation on her skin, constant nausea, and fatigue. During these excruciating treatments, Ms. Riggs says that she “began to think very seriously about what a death from cancer might be like,” and she was not sure whether she wanted “to go all the way to the end of a death from cancer.” She was afraid that eventually she would be “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.” She considered the possibility of a “more peaceful death,” but she still did not want to discuss it with her closest family and friends or her doctor because she “didn’t want to implicate anybody else in what might be a crime.” As a result, she thought that the choice to end her suffering would require her to “die alone and in isolation.” By contrast, Ms. Riggs believed that a good death would involve
having the presence of the people that I care about the most, who care about me the most; being at home, not being in the hospital; not having a lot of medical interventions that interfere with my ability to communicate or function as I would like to; to not have pain to the extent that it compromises my ability to connect with people or to be present in the moment; a sense of gentleness and peace to it.
{5}
According to Petitioners in this case, under certain circumstances, physician aid in
dying could afford Ms. Riggs precisely the peaceful death surrounded by family members
for which she hopes, rather than the agonizing, unpleasant, and lonely death that she fears.
Petitioners define aid in dying as “a recognized term of art for the medical practice of
providing a mentally-competent, terminally-ill patient with a prescription for medication that
the patient may choose to take in order to bring about a peaceful death if the patient finds his
[or her] dying process unbearable.” This practice is explicitly permitted and regulated by
statute in four states: Oregon, Washington, Vermont, and California. Oregon Death
with Dignity Act, Or. Rev. Stat. §§ 127.800 to .897 (1995, as amended through 2013); The
Washington Death with Dignity Act, Wash. Rev. Code §§ 70.245.010 to .220 & 70.245.901
to .904 (2008); Vermont Patient Choice at the End of Life Act, Vt. Stat. Ann. tit. 18, §§ 5281
to 5293 (2013, as amended through 2015); California End of Life Option Act, Cal. Health
& Safety Code §§ 443 to 443.22 (2016). Therefore, there is a minor but growing trend
among states to recognize physician aid in dying through legislation. Further, in 2009, the
Montana Supreme Court held that a terminally ill patient’s choice of physician aid in dying
can be a valid consent defense to a charge of homicide brought against a physician.
Baxter
v. State
,
Aroop Mangalik, clinical director at the UNM Cancer and Research Treatment Center, want to provide the option of aid in dying for their terminally ill patients in New Mexico. Dr. Morris previously practiced medicine in Oregon, where she provided physician aid in dying to two patients pursuant to that state’s Death with Dignity Act. She testified that when these patients received a lethal prescription they “expressed a feeling of peace that they had this option, and it seemed to relieve some of their suffering that was related directly to loss of control over their own bodies.” Dr. Morris detailed some of the physical ailments that these patients endured in the time immediately preceding death. One of Dr. Morris’s patients had a recurring tumor on her chest wall, parts of which would continually die and “essentially [become] rotting meat;” the smell from the tumor was right under the patient’s nose, which made it difficult for her to eat. Dr. Morris recalled that another patient, “a fireman, a really strong and vital guy,” had skin cancer that metastasized to his spine:
[H]e was in so much pain and we tried everything. We tried very aggressive pain management. We tried huge doses of narcotics, muscle relaxants, sedatives. We tried an implanted spinal pain pump. The best we could do for this poor man was make him unconscious. If he was awake, he was, literally, sobbing in pain.
Dr. Morris stated that terminal illness can also be psychologically challenging for patients due to a rapid loss of control over their bodily functions and a decline in their autonomy. Dr. Morris also testified about other end-of-life options that, unlike aid in dying, are explicitly permitted by statute in New Mexico. For example, the UHCDA permits patients *6 to provide advance directives to withdraw or withhold life-sustaining treatment and withdraw or withhold artificial nutrition and hydration. Sections 24-7A-1(G)(3)-(4); see § 24-7A-2. Dr. Morris testified that sometimes doctors will remove a patient from devices that are effectively keeping that patient alive. For example, a doctor may remove a patient from a dialysis machine, which will cause the patient’s kidneys to fail and the patient to die. A doctor may also remove a patient from a ventilator that assists the patient’s breathing, which then causes the patient to suffocate and die. The decision to end the patient’s life by withdrawing life-sustaining treatment is typically made by the patient, or through an advance directive from the patient if the patient is unconscious or incompetent, or in the absence of an advance directive, a family member or close friend must make the decision on the patient’s behalf. See § 24-7A-2. Once the decision has been made, the medical professional then actively removes the patient from the life-sustaining device. See §§ 24-7A-1(A), -2. {8} Similarly, the Pain Relief Act protects physicians who prescribe medication for purposes of pain relief under accepted standards of practice, even in situations where the patient’s death may be hastened by the treatment. § 24-2D-3. Accordingly, doctors may provide palliative sedation, also called “terminal sedation,” a practice that can hasten the patient’s death. For example, Dr. Morris stated that sometimes, when a patient is in severe pain, doctors will sedate that patient into an unconscious state, and that when people are sedated to that degree, “it suppresses their breathing and sometimes ends [a patient’s] life.” Similar to deciding to withdraw life-sustaining treatment, a patient, a patient through an advance directive, or a patient’s family member on the patient’s behalf may make the ultimate decision to submit to palliative sedation, a choice that could cause the patient to die soon thereafter. According to Petitioners, the statutory schemes that regulate aid in dying in other
states, particularly Oregon, could guide the standard of care employed by physicians in New Mexico who would practice aid in dying. In support of this argument, Petitioners offered testimony from Dr. Eric Kress, who practices aid in dying in Montana, where the practice is legal but is not regulated by statute. Dr. Kress testified that he spent between thirty and forty hours studying the standard of care developed for physician aid in dying in Oregon and consulting with physicians who practiced there because those physicians have developed “a body of knowledge” and it would have been malpractice not to do so.
{10} In addition to stringent requirements regarding eligibility and informed consent, see Or. Rev. Stat. §§ 127.800, 127.805, 127.820, 127.825, 127.830, the Oregon statute imposes waiting periods to allow time for a patient to change his or her mind, see id. §§ 127.840, 127.850. The patient must request the lethal prescription at least twice orally and once in writing. Id. § 127.840. The two oral requests must be at least fifteen days apart, and the patient must be given an opportunity to rescind his or her decision at the time of the second oral request. The written request must be witnessed by two people, at least one of whom is a disinterested person, which means a person who is (a) not a relative by blood or marriage to the patient, (b) not aware that he or she is entitled to recover anything from the patient’s estate, (c) not an employee of the health care facility where the patient resides, and (d) not *7 the patient’s physician. Id. § 127.897. The doctor can prescribe a lethal dose immediately following the three requests, subject to having met the two-day waiting period that follows the patient’s written request. § 127.850. The patient will then receive a lethal dose of barbiturates, such as Seconal or Pentobarbital, which the patient must then choose to self- administer. According to Dr. Nicholas Gideonse, a family practitioner in Oregon whose patients include those in need of aid of dying, these specific drugs are used “because of the high rate of certainty—not a hundred percent but 99.9 percent certainty—that [the] result of falling asleep and never waking up will occur” within minutes. Yet Dr. Kress noted that these various safeguards can also make aid in dying unavailable for those too close to death to satisfy the statutory requirements.
{11} Although the Oregon statute explicitly exempts from criminal and civil liability any doctor who provides aid in dying “in good faith compliance with” that statute, id. § 127.885(1), Dr. Gideonse explained that if physicians fall short of the standard of care and provide substandard or negligent care, they can still lose their licenses to practice medicine, face suits from a patient’s family, and/or face prosecution. Based on the undisputed testimony, Petitioners sought declaratory and injunctive
relief to the effect that either (a) Section 30-2-4, New Mexico’s criminal statute prohibiting assisted suicide, did not apply to the conduct defined by Petitioners as physician aid in dying; or (b) even if the statute did apply to physician aid in dying, such an application would be unconstitutional under various provisions of the New Mexico Constitution. The district court found that Section 30-2-4 applied to physician aid in dying, but agreed with Petitioners that any prosecution of that conduct would violate the patient’s “fundamental right to choose aid in dying pursuant to the New Mexico Constitution’s guarantee to protect life, liberty, and seeking and obtaining happiness, N.M. Const., art. II, § 4, and its substantive due process protections, N.M. Const., art. II, § 18.” Accordingly, the district court examined the application of Section 30-2-4 to physician aid in dying under strict scrutiny and held that the State had not proved that applying the statute in this manner furthered a compelling state interest. Because it had already invalidated Section 30-2-4’s application to physician aid in dying on due process grounds, the district court did not address Petitioners’ claims that applying Section 30-2-4 to that conduct would be “unconstitutionally vague or violate[] the guarantee of equal protection under the New Mexico Constitution.” A divided Court of Appeals agreed with the district court that Section 30-2-4 applied
to physician aid in dying.
Morris v. Brandenburg
,
another in the taking of his own life.” Unless it would lead to an unreasonable result, we
regard a statute’s definition of a term as the Legislature’s intended meaning.
Sw. Land Inv.,
Inc. v. Hubbart
,
of Section 30-2-4 and conclude that the Legislature did not intend that the criminal
prohibition on assisting suicide should apply to physician aid in dying. First, Petitioners
elicited detailed expert testimony explaining that the medical and psychological professions
do not consider a death from aid in dying to be a suicide
[1]
and that the medical profession
considers the underlying cause of death brought on by aid in dying to be the terminal illness
itself. According to Petitioners, Section 30-2-4 was only intended to address acts of suicide,
which are distinct from aid in dying. While Petitioners’ contentions regarding evolving
views on suicide and its distinctions from aid in dying are compelling, our analysis is bound
by the statutory language, which broadly defines suicide under Section 30-2-4 as “the taking
of [one’s] own life” and does not track such clinical and emotional distinctions urged by
Petitioners and recognized by professionals in the fields of medicine and psychology.
See
§ 30-2-4. Second, Petitioners put forth related arguments that the Legislature could not have
considered aid in dying in 1963 when it passed Section 30-2-4 because that practice did not
arise in New Mexico until later, and that applying Section 30-2-4 to aid in dying would be
contrary to New Mexico’s well-established public policy of favoring patient autonomy in
end-of-life decision-making, as exemplified by New Mexico’s 1995 adoption of the
UHCDA. Indeed, New Mexico was the first state to adopt the UHCDA after the National
Conference of Commissioners on Uniform State Laws approved an almost identical model
act in 1993.
Prot. & Advocacy Sys., Inc. v. Presbyterian Healthcare Servs.
*10
III. THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION
DOES NOT PROTECT THE RIGHT ASSERTED BY PETITIONERS Because we have determined that Section 30-2-4 could be applied to physician aid in dying, we must now examine Petitioners’ constitutional claims. Petitioners contend that application of Section 30-2-4 to physician aid in dying violates the due process provision in Article II, Section 18 and the Inherent Rights Clause in Article II, Section 4 of the New Mexico Constitution. We further note that Petitioners do not assert an equal protection violation before us. [3]
*11
{18}
Our state constitution’s due process guarantees are analogous to the due process
guarantees provided under the United States Constitution. Article II, Section 18 of the New
Mexico Constitution provides, in relevant part, that “[n]o person shall be deprived of life,
liberty or property without due process of law . . . .” The Due Process Clause of the
Fourteenth Amendment to the United States Constitution similarly provides that no state
shall “deprive any person of life, liberty, or property, without due process of law . . . .”
When analyzing a state constitutional provision with a federal analogue, this Court
employs the interstitial approach.
State v. Gomez
,
{20}
In
Washington v. Glucksberg
,
traditions, and practices. Id. at 710. The Court concluded that assisted-suicide bans are deeply rooted in the nation’s history and for the most part remain unchanged in the codified laws of the states. at 715-16, 719. The Court acknowledged that at the time it was considering the issue, states were engaged in “serious, thoughtful examinations of physician- process grounds. Therefore, an equal protection claim is not properly before us on appeal. *12 assisted suicide and other similar issues,” id. at 719, noting that many states permitted “ ‘living wills,’ surrogate health-care decisionmaking, and the withdrawal or refusal of life- sustaining medical treatment,” id. at 716 (citation omitted).
{22} The Glucksberg Court next turned to the Due Process Clause, inventorying the fundamental rights and liberties not enumerated in the Bill of Rights that are still entitled to heightened protection against government interference:
In a long line of cases, we have held that, in addition to the specific freedoms
protected by the Bill of Rights, the “liberty” specially protected by the Due
Process Clause includes the rights to marry,
Loving v. Virginia
,
preferences of the Court, the
Glucksberg
Court emphasized the importance of requiring
parties to give careful descriptions of the asserted fundamental liberty interests to protect the
fundamental rights and liberties that objectively are deeply rooted in the nation’s history, and
are such that neither justice nor liberty would exist if the right were sacrificed. at 720-21.
This approach was later criticized by the Court in
Obergefell v. Hodges
, ___ U.S. ___, ___,
prohibit doctors from prescribing medication to competent, terminally ill adults who wish
*13
to hasten their deaths,
{25}
The
Glucksberg
petitioners argued that the liberty interest they pursued was
consistent with the general tradition of “self-sovereignty” which included the “basic and
intimate exercises of personal autonomy,” primarily citing
Cruzan
and
Casey
in support of
their argument.
Glucksberg
,
Due Process Clause sound in personal autonomy,” but emphasized that this does not mean
that every important, intimate, and personal decision is so protected.
each is “unquestionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection.” Id. at 735. The Court concluded that the “earnest and profound debate about the morality, legality, and practicality” of physician aid in dying should continue, see id. , presumably in the legislative and executive branches of government. Although the Court held that the Washington law prohibiting assisted suicide did not
violate the Fourteenth Amendment “either on its face or as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors,” id. at 735 (internal quotation marks and citation omitted), the Court did not “foreclose the possibility that an individual plaintiff seeking to hasten [his or] her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge,” id. at 735 n.24 (internal quotation marks and citation omitted). What would constitute a “more particularized challenge” was not made clear by the Court, other than to suggest that “such a claim would have to be quite different from the ones advanced” in that case, id. , leaving a degree of uncertainty as to the extent and steadfastness of its holding.
{30} Justice Stevens, whose special concurrence in Glucksberg provoked the majority’s concession in footnote 24, offered some insight into why a particularized challenge might result in a different outcome. First, Justice Stevens noted that the three terminally ill patient- plaintiffs in Glucksberg died after the district court ruled in their favor, and therefore no individual plaintiff seeking to hasten her death or any doctor threatened with prosecution for assisting in the suicide of a particular patient was before the Court. Id. at 739 (Stevens, J., concurring). Accordingly, Justice Stevens agreed that history and tradition did not support “an open-ended constitutional right to commit suicide” or an absolute right to physician aid in dying. See id. at 740, 745. However, Justice Stevens noted that Cruzan made clear that “some individuals who no longer have the option of deciding whether to live or to die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the State’s interest in preserving life at all costs.” Id. at 745. Thus, a particularized showing might be made by a terminally ill patient who is “faced not with the choice of whether to live, only of how to die,” and “who is not victimized by abuse, who is not suffering from depression, and who makes a rational and voluntary decision to seek assistance in dying” after being adequately informed about patient care alternatives. at *15 746-48.
{31}
We conclude that
Glucksberg
controls, and therefore that the United States
Constitution does not categorically protect Petitioners’ asserted right, although an opening
remains for a more particularized protection. Having determined that the right Petitioners
assert is not protected under the United States Constitution, we now turn to Petitioners’
claim that New Mexico’s ban on physician aid in dying, as applied to them, violates the due
process and inherent rights provisions of the New Mexico Constitution. We may diverge
from the
Glucksberg
precedent if we determine that the federal analysis is flawed or that
New Mexico has distinct characteristics in the relevant area or that structural differences
between our government and the federal government exist.
Gomez
,
FLAWED The first reason we might depart from Glucksberg is if we conclude that the analysis is flawed. Petitioners contend that the Glucksberg analysis is flawed for three reasons. They argue that (1) the Glucksberg approach to substantive due process has since been abandoned; (2) Glucksberg reviewed a facial challenge that did not have the evidence we have today that demonstrates the safety of aid in dying; and (3) Glucksberg is in discord with New Mexico’s distinct state characteristics. Petitioners are correct that the Obergefell majority took the Glucksberg Court to task
for defining the right in the most circumscribed manner, referring to historical practices,
because the analysis was inconsistent with how other fundamental rights had been defined
by the Court.
See Obergefell
, ___ U.S. at ___,
Loving did not ask about a right to interracial marriage; Turner [ v. Safley 482 U.S. 78 (1987)] did not ask about a right of inmates to marry; and Zablocki [ v. Redhail , 434 U.S. 374 (1978)] did not ask about a right of fathers with unpaid child support duties to marry. Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. (internal quotation marks omitted). Despite the Court’s criticism of itself, we conclude
that the
Glucksberg
approach with respect to physician aid in dying is not flawed. It is much
more difficult to define the interest before us—as it was for the
Glucksberg
Court—because
unlike
Loving
,
Turner
,
Zablocki
, and
Obergefell
, which had as a tradition the fundamental
right to marry with all of the rights, responsibilities, and divorce procedures carefully
defined, we do not have such a tradition to fall back on regarding physician aid in dying.
Similarly, the
Cruzan
Court interpreted informed consent alongside the statutory prohibition
*16
of battery to encompass the right of a competent adult patient to refuse medical treatment.
See
497 U.S. at 269, 277-79. There is a marked difference between refusing medical
treatment, even if doing so will hasten death, and seeking treatment which has for its
exclusive purpose the taking of one’s life. This was the dichotomy faced by the
Glucksberg
Court.
See
by the
Glucksberg
Court in defining the right, we agree with its analysis concerning
legitimate government interests, particularly the following three interests. First, we agree
with the “interest in protecting the integrity and ethics of the medical profession,”
Glucksberg
,
V. THERE ARE NO DISTINCTIVE STATE CHARACTERISTICS WITH
RESPECT TO ARTICLE II, SECTION 18 OF THE NEW MEXICO CONSTITUTION THAT JUSTIFY OUR DEPARTURE FROM GLUCKSBERG Petitioners contend that New Mexico’s “long, proud, extraordinary history of
respecting patient autonomy and dignity at the end of life” is a distinctive characteristic
requiring additional state constitutional protections of the practice of physician aid in dying.
In support of this claim, Petitioners point to several New Mexico statutes which they contend
demonstrate the New Mexico Legislature’s “assiduous respect for the decision-making
autonomy of dying patients.” First, Petitioners note that New Mexico was the first state to
adopt the UHCDA. Pursuant to the UHCDA, patients may provide advance directives to
health care providers, including directives to withdraw or withhold life-sustaining treatment
and withdraw or withhold artificial nutrition and hydration.
See
§§ 24-7A-1(G), 24-7A-2.
Second, Petitioners observe that New Mexico was one of the first three states to recognize
advance directives in any form through its 1977 Right to Die Act, NMSA 1978, §§ 24-7-1
to -11 (1977, repealed 1997), which was replaced by the UHCDA.
See
1997 N.M. Laws,
ch. 168. Third, Petitioners point out that the Pain Relief Act protects a patient’s right to
obtain pain relief, even in situations where death could result. §§ 24-2D-1 to -6.
We agree that the UHCDA, the Right to Die Act, and the Pain Relief Act support the
conclusion that New Mexico has historically placed great importance on patient autonomy
and dignity in end-of-life decision-making. However, Section 24-7A-13(C) of the UHCDA
expressly disavows
assisted suicide
, undercutting Petitioners’ assertion that the interests of
patient dignity and autonomy protected by the UHCDA also extend to physician aid in
dying. Even practices specifically allowed under the UHCDA, such as withdrawal or
withholding of life-sustaining treatment, must proceed in line with the UHCDA’s safeguards,
or else health care providers and individuals may be held liable.
See generally
§ 24-7A-10.
For example, the UHCDA provides safeguards pertaining to the appointment of an agent to
carry out a patient’s end-of-life directives, § 24-7A-2(A)-(E), end-of-life decisions for
unemancipated minors, § 24-7A-6.1, the obligations of a health-care provider after receiving
a health-care decision or directive from a patient or a patient’s agent, § 24-7A-7,
determinations of a patient’s capacity with respect to such decisions, § 24-7A-11, and
disputes relating to end-of-life decisions, § 24-7A-14. These safeguards illustrate that New
Mexico also recognizes, as a companion to the core values of patient dignity and autonomy,
that end-of-life decisions are inherently fraught with the potential for abuse and undue
influence and that the law should provide positive protections to ensure that patients have
made a decision that is both informed and independent. The UHCDA may well provide a
road map for future legislators in determining the safeguards that are necessary to implement
a form of physician aid in dying, but the statute itself does not support the inference that
there is some special characteristic of New Mexico law that makes physician aid in dying
a fundamental right in this state. Far from being a distinct characteristic of New Mexico law
*18
or a departure from federal law, the UHCDA codifies the right to refuse unwanted lifesaving
medical treatment that the
Cruzan
Court assumed existed under the United States
Constitution.
VI. PHYSICIAN AID IN DYING IS NOT A FUNDAMENTAL OR IMPORTANT
RIGHT UNDER ARTICLE II, SECTION 4 OF THE NEW MEXICO *19 CONSTITUTION Petitioners also argue that Article II, Section 4 of the New Mexico Constitution is an
independent basis on which this Court could hold that there is a fundamental right to
physician aid in dying. Article II, Section 4 provides that “[a]ll 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.” Petitioners contend that, despite being
“seldom interpreted” by New Mexico courts, Article II, Section 4 protects “the right for a
terminal patient to choose a peaceful, dignified death through aid in dying.” Petitioners
argue that several opinions of this Court have acknowledged that Article II, Section 4
provides some unique sets of rights, even if the substance of those rights has remained
undefined. Petitioners also urge us to give effect to Article II, Section 4 and fulfill our duty
to construe our state constitution so that “no part is rendered surplusage or superfluous.”
Hannett v. Jones
,
“milieu” from which this provision emerged in an effort to shed light on how the framers of
our state constitution may have viewed it.
See State v. Gutierrez
,
Constitution was drafted can be conceptualized under two broad “themes.” See Ray, supra , at 390-94. First, most jurisdictions undertook a balancing test to weigh the exercise of the natural right against the State’s inherent power to regulate public health, morals, and welfare. Id. at 391 n.111 (listing cases). Second, other jurisdictions viewed natural rights provisions as codifying the common law maxim, “Sic utere tuo ut alienum non laedas ” (use your property in such a manner as not to injure that of another), which recognizes that “the natural rights clause would invalidate legislation adversely affecting personal liberty and happiness unless the[] exercise [of personal liberty or happiness] in some way harms or presents an actual and substantial risk of harm to another person.” at 391-94. However, historical interpretations of natural rights provisions provide “no conclusive evidence” as to the purpose and effect that those who drafted the New Mexico Constitution may have envisioned for Article II, Section 4. See Ray, supra , at 394. Adding to the ambiguous history of these provisions, some of the earliest cases
interpreting state constitutional natural rights clauses assumed that they protected a wide
variety of individual rights against state action. For example, at least five states relied on
the guarantee of their natural rights provisions that all men are born equally free to declare
slavery unconstitutional. Steven G. Calabresi & Sofia M. Vickery,
On Liberty and the
Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights
Guarantees
, 93 Tex. L. Rev. 1299, 1328-46 (2015) (describing cases). Similarly, the Maine
Supreme Court relied on the natural rights provision contained in the Maine Constitution to
hold that Native Americans living in Maine could enter into valid contracts,
Murch v. Tomer
including “pursuing trade and business for the acquisition of property, and . . . pursuing our
happiness in using [our liberty],” and held that Indiana’s legislature could not take away an
individual’s right to freely select what to eat or drink. at 557-59;
cf. Sheppard v.
Dowling
,
judicially enforceable rights.
See Gacke v. Pork Xtra, L.L.C.
,
Mexico cases analyzed Article II, Section 4 in the context of economic and property rights
and balanced an individual’s inherent rights against the state’s general powers to regulate
and to protect the public. In
State v. Brooken
,
{46}
In recent years, New Mexico courts have invoked Article II, Section 4 as a prism
through which we view due process and equal protection guarantees. For example, in
California First Bank v. State
, we recognized in dicta that Article II, Section 4 should not
be given the same breadth as the Due Process Clause in the United States Constitution
because of the specificity of the rights in Article II, Section 4.
Article II, Section 4 as a central component of our due process analysis in
Reed v. State ex
rel. Ortiz
.
through the lens of his right to seek and obtain safety under Article II, Section 4.
Reed
Reed faced the deprivation of his life without due process of law if he had remained in Ohio. The New Mexico Constitution cannot tolerate such an outcome. NM Const. art. II, §§ 4 & 18. Moreover, Reed was precluded from seeking safety in Ohio. . . . He fled to New Mexico for the express purpose of finding safety. For this reason, Reed properly comes under the protection of Article II, Section 4 of the New Mexico Constitution which guarantees the right “of seeking and obtaining safety.” Reed did not flee from justice. He sought refuge from injustice.
Reed
,
recovery in tort actions.
See, e.g.
,
Trujillo v. City of Albuquerque
,
{51}
No New Mexico case provides any meaningful support to Petitioners’ claim that
Article II, Section 4 establishes a fundamental right “for a terminal patient to choose a
peaceful, dignified death through aid in dying.” Although Article II, Section 4 should inform
our understanding of New Mexico’s equal protection guarantee,
see Griego
, 2014-NMSC-
003, ¶ 1, and may also ultimately be a source of greater due process protections than those
provided under federal law,
see Cal. First Bank
,
VII. THERE IS A RATIONAL BASIS FOR THE SECTION 30-2-4 PROHIBITION
OF PHYSICIAN AID IN DYING
{52}
Although we do not recognize a fundamental or important right to physician aid in
dying, Section 30-2-4 must still be rationally related to legitimate government interests to
be constitutional as applied to physician aid in dying.
See Wagner v. AGW Consultants
who would qualify for physician aid in dying. Oregon’s Death with Dignity Act, the basis for the standard of care guiding Dr. Kress’s practice, sets forth detailed guidelines and procedural protections that doctors must follow to legally provide this option to their terminally ill patients. To be eligible for aid in dying, the patient must be an adult, be suffering from a terminal disease, be an in-state resident, and have “voluntarily expressed his or her wish to die.” Or. Rev. Stat. § 127.805(1). “Terminal disease” is defined as an incurable and irreversible disease that “will, within reasonable medical judgment, produce death within six months.” Id. § 127.800(12). On behalf of Petitioners, Dr. Gideonse testified that doctors are accustomed to determining to a reasonable medical certainty whether a patient has less than six months to live because that prognosis is already required to place a patient into hospice care. In other words, a terminal diagnosis is not a feature unique to aid in dying. To be eligible, the patient must also have been judged “capable,” which means that in the opinion of the patient’s attending physician, a court, or the patient’s psychiatrist, the patient “has the ability to make and communicate health care decisions . . . including communication through persons familiar with the patient’s manner of communicating.” See id. § 127.800(3). There is no legal requirement that doctors in Oregon provide aid in dying to a qualifying patient, and individual health care providers can explicitly prohibit the practice. § 127.885(4)- (5). Further, under the Oregon statute, two physicians must separately determine the
patient’s eligibility for aid in dying. See id. § 127.820. Dr. Kress gave an example where he sought the opinion of five other physicians who had treated a patient—a gastroenterologist, an oncologist, a surgeon, a radiologist, and a family medicine physician—as to whether the patient was terminally ill. If any examining physician *26 determines that the patient is suffering from impaired judgment due to depression or a psychological disorder, that physician must refer the patient to counseling, and no physician can prescribe a lethal dose to the patient. See id. § 127.825. Indeed, Dr. Kress testified that under the proper standard of care, he will not prescribe a lethal dose unless the patient is “clear and assertive” in requesting aid in dying. Additionally, Dr. Gideonse testified that doctors often make judgments regarding a patient’s competency to make important medical decisions, and the aid in dying situation is not significantly different. The patient must also be informed of (a) his or her medical diagnosis; (b) his or her prognosis; (c) the potential risks associated with the fatal dose of medication; (d) the probable result of taking the medication, which usually results in a loss of consciousness and death within minutes; and (e) feasible alternatives including hospice care, comfort care, and pain control. See id. §§ 127.800(7), 127.830. In sum, it is apparent that the right described by Petitioners and, by extension, the standard of care essential to that right, has been thoroughly defined through legislation in states such as Oregon, where physician aid in dying is legal. The Obergefell Court concluded that defining rights in their most comprehensive
sense is the correct approach for the federal substantive due process analysis. ___ U.S. at
___,
to punish those who assist with suicide, with limited exceptions in the UHCDA and the Pain
Relief Act. However, these exceptions occurred as a result of debates in the legislative and
executive branches of government, and only because of carefully drafted definitions and
safeguards, which incidentally are consistent with the safeguards urged by Petitioners.
Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to
those previously identified in paragraph 35 of this opinion, the following reflect other
safeguards relevant to our analysis. “Life-sustaining treatment” is specifically defined.
Section 24-7A-1(K). An insurer is prohibited from conditioning the sale of insurance on the
execution of an advance health care directive. Section 24-7A-2.1(B). A health care provider
cannot condition the provision of health care to the patient on the patient signing or revoking
a health care directive. Section 24-7A-7(H). A health care provider may decline to comply
with a health care decision “for reasons of conscience,” but must treat the patient and make
reasonable efforts to transfer the patient to a provider who is willing to comply with the
patient’s directive. Section 24-7A-7(E), (G). The patient or his or her agent, surrogate, or
guardian may petition a court to enjoin or authorize a health care directive. Section 24-7A-
14. These and other provisions of the UHCDA further many of the government interests
recognized by the
Glucksberg
Court as unquestionably legitimate, and which made
Washington’s ban on physician aid in dying reasonably related to their promotion and
protection.
See Glucksberg
,
{57}
In
Trujillo
,
VIII. CONCLUSION Pursuant to New Mexico’s heightened rational basis analysis, and based on the
record before us and the arguments of the parties, we conclude that although physician aid in dying falls within the proscription of Section 30-2-4, this statute is neither unconstitutional on its face nor as it is applied to Petitioners. For the foregoing reasons, we reverse the district court’s contrary conclusion and remand to the district court for proceedings consistent with this opinion.
{59} IT IS SO ORDERED.
____________________________________ EDWARD L. CHÁVEZ, Justice WE CONCUR:
____________________________________
CHARLES W. DANIELS, Chief Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
BARBARA J. VIGIL, Justice
____________________________________
JAMES M. HUDSON, District Judge
Sitting by designation
Notes
[1] For example, Dr. David Pollack, a licensed psychiatrist who teaches at the Center for Ethics and Healthcare at Oregon Health and Science University, opined that a death from aid in dying is not the same as a suicide. Suicide is typically brought on by a “psychiatric condition” such as depression and is characteristically an “impulsive” and “solitary act.” Accordingly, the family of a suicide victim will usually experience “surprise, . . . shock and disbelief or anger, a whole set of emotional reactions . . . reflecting a lack of connection between the person who committed suicide” and those closest to that person. By contrast, aid in dying is characterized by a “deliberative process,” which “almost always involves the person discussing [aid in dying] with [his or her] family and friends.” According to Dr. Pollack, patients choose aid in dying “to alleviate symptoms, to spare others from the burden of watching them dwindle away or be a shell of their former self [sic] or to feel like they are in control, have some autonomy and some control over the way that they die.” As a result, family members of patients who choose aid in dying and ultimately end their lives in that manner “go through this process” with the patient, and are therefore “more prepared for the person’s death and more at peace in relationship to it,” as compared with the family of a suicide victim.
[2] Petitioners have not raised the issue of whether a physician who provides aid in
dying could have a valid common law consent defense to homicide in New Mexico;
therefore, we do not address it here.
Cf. State v. Fransua
,
[3] Petitioners raised an equal protection claim before the district court, but the district court did not address Petitioners’ equal protection claim and issued its decision solely on due
[4] In Glucksberg , the American Medical Association concluded that “ ‘[p]hysician- assisted suicide is fundamentally incompatible with the physician’s role as healer.’ ” 521 U.S. at 731 (alteration in original) (quoting American Medical Association, Code of Ethics § 2.211 (1994)). We note that in New Mexico, as recently as November 2014, the New Mexico Medical Board refused to adopt a standard of care for aid in dying; because there was not a statute in place, some members were concerned that it would be premature to create a standard of care for aid in dying before the Board knew whether it was a legal practice. New Mexico Medical Board, Regular Board Meeting, Nov. 13-14, 2014, Final Minutes at 10, available at their website, http://www.nmmb.state.nm.us (last visited June 29, 2016). The Board minutes further note that the Board was “forced to [establish guidelines] for chronic pain, but that was because there [was] a statute in place, and so unless a law is passed requiring the Medical Board to have oversight of all compassionate end of life assistance, then . . . this was bad for the practice of medicine.” We therefore appreciate that some members of the medical community understand this to be a legislative issue, and that the question of whether aid in dying is truly an accepted medical practice currently remains the subject of debate within the New Mexico medical community.
[5] For example, provisions recognizing the inherent right to seek and obtain happiness and safety appear in the constitutions of Iowa (Iowa Const. art. I, § 1); California (Cal. Const. art. I, § 1) (amended in 1972 to include a right to privacy); Colorado (Colo. Const. art. II, § 3); Idaho (Idaho Const. art. I, § 1) (recognizing the right to pursue happiness and seek safety); Massachusetts (Mass. Const. Pt. I, art. 1); Nevada (Nev. Const. art. I, § 1); New Hampshire (N.H. Const. Pt. 1, art. 2) (recognizing the right to seek and obtain happiness); New Jersey (N.J. Const. art. I, § 1); North Dakota (N.D. Const. art. I, § 1) (amended in 1984 to include right to bear arms); Ohio (Ohio Const. art. I, § 1); Vermont (Vt. Const. Ch. I, art. 1); and West Virginia (W. Va. Const. art. III, § 1). Other state constitutions similarly guarantee “the pursuit of happiness” as a natural or inherent right. Joseph R. Grodin, Rediscovering the State Constitutional Right to Happiness and Safety , 25 Hastings Const.