In a case in New Mexico District Court, District Court Judge Nan G. Nash made a finding that Montana is among those states where assisted suicide is legal and, “there is no uncertainty in the law and the practice has developed as one of the standard of care options for mentally competent, terminally ill patients at the end of life.”
That finding is incorrect and the judge should have done her homework better.
A Montana case referred to as the “Baxter” case in the Montana Supreme Court found that physicians could raise the consent of the patient as an affirmative defense to the prosecution of the act of assisting the suicide. The Montana Supreme Court did not find that a constitutional right to aid in dying existed in Montana.
Subsequent to the Baxter decision, proponents of assisted suicide brought a bill, SB 167, to provide safe harbor protections to physicians who participated in assisted suicide, as the sponsor noted “under current law, … there’s nothing to protect the doctor from prosecution.”
I repeat, the legal status of assisted suicide is not clear in Montana.
The sympathy for facing the reality of imminent death and dealing with intractable pain is the tactic that the supporters of assisted suicide use to argue for permitting assisted suicide.
But adoption of a major policy of this type belongs to the people of New Mexico acting through their Legislature. This is not an action that should be undertaken by the judicial system.
Our review in Montana of the Oregon and Washington statutes that are pointed to as model measures for assisted suicide showed that all the so-called patient protections in place to ensure that the patient was acting voluntarily to end his or her life were illusory, as they ended with the prescription of the death agent by the doctor.
The Oregon and Washington schemes permit the patient to be alone with one other person and no other witnesses at the time that the life ending agent is administered. If the sole witness has the motive, for example, to end the life of the patient to preserve their own inheritance, is this not a prescription for euthanasia rather than assisted suicide?
Elder abuse is unfortunately on the rise, and assisted suicide under the Oregon and Washington schemes can be the end of a continuum of elder abuse and abuse of the disabled.
Your courts cannot fashion protections for the helpless and vulnerable. Those matters must rest with the Legislature.
Please use your power of electing judges to restrain the judiciary and protect the vulnerable in New Mexico.