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End-of-life options for terminally ill likely to be weighed in Legislature

Editor’s note: This is the first in a series of stories on issues expected to be debated in the 2017 legislative session.

SANTA FE – When the state Supreme Court decided last year that terminally ill New Mexicans do not currently have a right to a physician’s assistance in dying, it said the issue called for “robust debate” in the Legislature.

That’s what appears to be on the horizon for the coming session.

Lawmakers will be asked to approve a bill allowing competent, terminally ill patients to obtain prescriptions from doctors for drugs the patients would self-administer.

“I think it ought to be a normal part of the options for end-of-life care,” said Rep. Deborah Armstrong, D-Albuquerque, who plans to sponsor the legislation in the 60-day session that starts Jan. 17.

The debate in the Capitol is likely to mirror the courtroom fight, with some medical and public health groups and the American Civil Liberties Union of New Mexico supporting the legislation and the Roman Catholic Church and some disability rights groups opposed.

Under a 1963 law, assisting in a suicide in New Mexico is a fourth-degree felony.

But after two oncologists and a cancer patient challenged that, a state district judge in 2014 ruled that medical aid in dying is a right under the state Constitution.

The Court of Appeals reversed the ruling in 2015, and the state Supreme Court the following year upheld the assisted suicide ban.

Justice Edward Chavez wrote that it wasn’t easy to define a terminally ill patient, or determine how to ensure competency, or to define acceptable medical practices or safe medication.

“These concerns require robust debate in the legislative and the executive branches of government,” Chavez said.

The patient who was a plaintiff in the lawsuit, Aja Riggs of Santa Fe, was in remission by the time the high court ruled in June 2016.

The opposing sides on the issue don’t even use the same terminology. Advocates talk about medical aid in dying; opponents call it physician-assisted suicide.

“They get all mad at me when we call it assisted suicide, but it is,” said Allen Sanchez, executive director of the New Mexico Conference of Catholic Bishops.

Supporters of the legislation contend that’s inaccurate, because people using the option are not choosing to die – disease is already taking their lives – but rather are choosing not to prolong a difficult and painful process.

“I definitely would argue that when you’re imminently about to die, it’s not suicide,” said Erin Marshall, former New Mexico campaign manager for Compassion & Choices, who worked on the lawsuit.

Sanchez said the proposal “is riddled with too many ethical, legal and moral complications.”

He rattled off a list of some of the same objections used by the Catholic bishops and others in their opposition to the death penalty – for example, the possibility of human error. In the case of aid in dying, that could be an error in diagnosis or prognosis, he said.

“Because of the poverty in our state, we’re going to see older poor people being guilted into dying” to conserve money to leave their children, he also said.

Similar “Death With Dignity” legislation has been introduced a couple of times before in New Mexico but never got any traction.

“We believe that we can stop it” this year, said Sanchez, who is lining up witnesses to testify against it.

Bills are already being filed in advance of the session, but the aid-in-dying legislation is still being fine-tuned, according to Armstrong. She is a physical therapist and New Mexico’s former secretary of the Aging and Long-Term Services Department, and has been a caregiver for family and friends at the end of life.

She said she understands the concerns of opponents and the need for safeguards to protect vulnerable patients, but that “we need to start talking about it and we need to start educating people.”

Medical aid in dying has been authorized by statute or court ruling in six states – Oregon, Washington, Vermont, California, Montana and Colorado – and recently was approved by Washington, D.C., officials, although Congress has the final say.

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