On June 30, New Mexico became the latest state to throw out a challenge to a law banning physician-assisted suicide. In Morris v. Brandenburg, proponents of the right-to-die movement contended that medical aid in dying was a fundamental right, meaning that any law that restricted the right should be presumed to be invalid unless the state had a compelling reason for the restriction.
In a unanimous decision, the New Mexico Supreme Court held that there was no such right under that state’s constitution, and that even if the right had existed, the state had several compelling reasons to restrict it: to protect “the integrity and ethics of the medical profession”; to protect “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 to protect “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.”1
Dr. Annette Hanson
Let me repeat that last point:
If aid in dying is a constitutional right, then medical euthanasia is inevitable. In other words, if a patient is too disabled to commit suicide on his or her own, a physician would be obligated to kill the patient.
Proponents will dismiss this last statement as alarmist and unfounded. They will point to a 20-year history of legalized aid in dying in Oregon, and insist there has never been a problem and no attempt to expand the practice to include euthanasia.
What they don’t mention is that such an attempt would be politically disastrous for the right-to-die movement. In 2015, 25 states and the District of Columbia considered legalization bills.2 After careful consideration and debate, these bills failed in every state except California, and in that state it passed only because of an extraordinary and unusual legislative maneuver. The bill initially failed in regular session, but passed in special session when the California Medical Association (CMA) shifted to a neutral stance. That shift would never have happened had CMA members been aware of the legal inevitability of euthanasia. At this stage of the political process, the goal of the right-to-die movement is to get laws on the books in as many states as possible before pushing for more.
The New Mexico opinion echoes a similar decision issued this past May by a New York appellate court. The plaintiffs in that case were three terminally ill New Yorkers and five doctors, as well as two euthanasia advocacy groups. The arguments were virtually identical to those made in New Mexico, asserting a fundamental right to medical aid in dying based upon personal autonomy. They additionally sought an exception to New York criminal law, which defined assisted suicide as second-degree manslaughter. In Myers v. Schneiderman, the court observed that no appellate court had ever found medical aid in dying to be a fundamental right and that no new developments justified a change in this interpretation.3 While the court acknowledged some change in public opinion as reflected in telephone surveys, it correctly gave little weight to this argument: “Plaintiffs fail to allege whether those public polls reflect the opinion of people who are fully informed of the arguments espoused by those who caution against permitting aid-in-dying, such as those articulated in the New York State Task Force on Life and the Law.”
This task force issued the following recommendation in its 1994 report,4 “When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context”: “The Task Force members unanimously recommend that existing law should not be changed to permit assisted suicide or euthanasia. Legalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. The Task Force members concluded that the potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved” (Chapter 6, p. 120).
The New York aid-in-dying bill did not progress out of committee by the time the session ended in June.
Lastly, both of these cases concluded that medical aid in dying was suicide. In Myers, Judge Angela M. Mazzarelli stated: “The word ‘suicide’ has a straightforward meaning, and a dictionary is hardly necessary … It is traditionally defined as ‘the act or instance of taking one’s own life voluntarily and intentionally.’ ... Whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits that literal description.”