An earlier version of this story incorrectly stated that the plaintiffs were asking a judge to allow a doctor to administer medication to aid people in dying.
Copyright © 2013 Albuquerque Journal
Plaintiffs say current law against assisted suicide is unconstitutional; woman seeks right to choose end to her life if cancer returns
Two physicians and a Santa Fe woman with uterine cancer want a judge to allow a doctor to prescribe medication to provide a peaceful death to a terminally ill patient – without the threat of possible criminal charges.
Testimony is to begin today in the case, which asks the court to clarify or find unconstitutional a provision in state law dealing with terminally ill patients. The law, called the Assisted Suicide Statute, makes it a fourth-degree felony to deliberately aid another in taking his or her own life.
Oncologists Katherine Morris and Aroop Mangalik, along with patient Aja Riggs, want District Judge Nan Nash of Albuquerque to rule that the 1963 law doesn’t apply to a physician who administers medications to ease death to a mentally competent, terminally ill patient. Or, if the statute does apply, they want Nash to rule it unconstitutional.
Riggs and the doctors contend the statute does not include a state-licensed physician providing the requested aid.
They argue that aid in dying isn’t suicide and that the cause of death is the terminal illness, not the aid. Such patients are seeking only control over the time and manner of their inevitable, impending death, according to their complaint.
But they want a court to make the declaration.
The defendants, District Attorney Kari Brandenburg and Attorney General Gary King, sought dismissal of the lawsuit, saying the law is consistent with the state constitution and that any changes should be made by the Legislature, not the judiciary.
“As plaintiffs describe it, the provision of ‘aid in dying’ is unquestionably assisted suicide” because it isn’t prescribed as a cure but rather “for a single purpose: the death of the patient,” the attorney general argued.
Plaintiffs responded that the statute doesn’t support prosecution of a physician in this context.
The court denied the motion to dismiss.
Riggs, 48, a Santa Fe resident, said she learned after surgery, chemotherapy and radiation that her cancer had spread, and she began thinking very differently about her end-of-life choices.
While the cancer currently is in remission, she knows it is likely to come back.
“I want the peace of mind of knowing I have choices at the end,” she said during a teleconference this week. “It’s not a choice between life and death. It’s about what kind of choice.”
Morris practiced medicine for five years in Oregon, which enacted the Death With Dignity Act in 1994. The Oregon law carves out legal distinctions between physician aid to a dying patient and assisted suicide, mercy killing or homicide, according to the plaintiffs. The statute was upheld by the U.S. Supreme Court.
The physicians and Riggs, represented by the American Civil Liberties Union of New Mexico and Compassion & Choices, a national advocacy group for end-of-life issues, got the assistance this week of the New Mexico Psychological Association.
A friend-of-the-court brief by Albuquerque attorney Frank Spring and nationally known health law expert Rob Schwartz of the University of New Mexico School of Law argues that aid in dying and suicide are “fundamentally different psychological phenomena” and “different categories of patients must be treated differently by the law.”
The psychological association board engaged in “protracted and serious discussion over several months” before deciding to support the plaintiffs because of “the importance of the resolution of this case to the quality practice of psychology in New Mexico.”
Compassion & Choices notes that there is a growing national movement in support of aid in dying. The Vermont Legislature approved legislation this year that offers civil and criminal protections to physicians who prescribe meds to terminally ill patients of sound mind so they can have a peaceful death.
A 2009 Montana case that reached that state’s Supreme Court found that public policy supported competent, terminally ill patients’ choice of aid in dying.
Either way Nash rules following the non-jury trial, scheduled today and Thursday, the ruling is likely to go up on appeal.