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NM Court of Appeals reverses ‘aid in dying’ approval

Copyright © 2015 Albuquerque Journal

A divided New Mexico Court of Appeals on Tuesday reversed a court ruling that allowed mentally competent, terminally ill patients to choose their own time to die with aid from a physician.

Katherine Morris, a doctor part of 2012 lawsuit seeking protection for physicians.

Katherine Morris, a doctor part of 2012 lawsuit seeking protection for physicians.

But the 144 pages in three separate opinions on “aid in dying” – as distinguished from “assisted suicide” – virtually guarantee, or at least invite, the issue to be revisited by the New Mexico Supreme Court, which chooses the cases it will hear.

Court of Appeals Judge Linda Vanzi said in a dissenting opinion that she would uphold the January 2014 ruling by 2nd Judicial District Chief Judge Nan Nash, which permanently barred the state from prosecuting a physician who provides aid in dying.

But Judges Tim Garcia and Miles Hanisee, in separate opinions, found “no (such) fundamental liberty interest under the New Mexico Constitution.”

The underlying lawsuit was filed in 2012 by two physicians at the University of New Mexico Hospital – Dr. Katherine Morris and Dr. Aroop Mangalik – and later joined by patient Aja Riggs, a Santa Fe resident diagnosed with uterine cancer, seeking aid in dying. That is defined as a willing physician providing a mentally competent, terminally ill patient with a lethal dose of medication, which will allow a peaceful death and avoid suffering.

Riggs’ cancer is now in remission, but she testified at trial that she wants the peace of mind of knowing she can choose to end her suffering should it return.

After a bench trial that included evidence about the two decades of experience with Oregon’s Death with Dignity Act, Nash found the practice to be legal and protected by a right or at least an interest under the due process provisions of the Constitution.

“If decisions made in the shadow of one’s imminent death regarding how they and their loved ones will face that death are not fundamental … then what decisions are?” Nash said in her ruling.

On appeal, groups with interests for and against the decision weighed in – the Catholic Church, some Republican state senators and Christian medical and dental associations urged the appellate court to reverse the decision, while the New Mexico Psychological Association, the American Medical Women’s Association and New Mexico Public Health Association and the ALS Association New Mexico Chapter took the opposite view.

In his opinion for the majority, Garcia relied heavily on a 1997 U.S. Supreme Court case, Glucksberg v. Washington, saying it was the only case to directly answer the question “whether aid in dying is a constitutional right, fundamental or otherwise.”

Dr. Aroop Mangalik, a doctor part of 2012 lawsuit seeking protection for physicians.

Dr. Aroop Mangalik, a doctor part of 2012 lawsuit seeking protection for physicians.

“Despite its share of criticism over the years … no court, federal or state, has held that the concept of death … is rooted within the protections of bodily integrity under the constitution,” he wrote. Garcia said Glucksberg was not just a guidepost, but rather “the only existing precedent regarding the nearly identical constitutional question that is posed in this case.”

Hanisee’s concurring opinion said the state Constitution incorporated “no right – fundamental or otherwise – to legal narcotics medically prescribed for the sole purpose of causing the immediate death of a patient.” He also said a different branch of government “is vastly better suited to consider and resolve the lawfulness of aid in dying in New Mexico than is the judiciary.”

Vanzi rejected the invocation of the 1997 case, quoting from the 2015 U.S. Supreme Court opinion that found a fundamental right to marry guaranteed to same-sex couples by the due process and equal protection clauses: “If rights were defined by those who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

She noted that physicians in New Mexico may legally administer terminal sedation and remove life-sustaining nutrition, hydration or mechanical life support, but the majority opinion criminalizes a doctor writing a prescription to achieve the same result.

The judiciary may review a statute for its constitutionality, Vanzi said, and arguing otherwise “is little more than a bald assertion that the Legislature may constitutionally criminalize conduct simply because ‘ ’twas ever thus.’ ”

Citizens may disagree about “the profound implications” of a terminally ill individual’s decision to end her suffering by ending her life, Vanzi’s opinion said, but the judiciary has an obligation to protect the liberty of all New Mexicans consistent with constitutional guarantees.

“Other choices and decisions central to personal autonomy have long enjoyed the status of constitutionally protected liberty interests,” she said, writing that the state Constitution’s due process clause “affords New Mexico citizens a fundamental, or at least important, liberty right to aid in dying from a willing physician.”