Wednesday, January 15, 2014

New Mexico Lower Court Parrots the Language and Platitudes of Assisted Suicide Advocacy Groups

Disability rights group - Not Dead Yet, published the following commentary on their blog yesterday.

Link to: Attorney General must appeal Assisted Suicide court decision in New Mexico.

Link to the online petition: Protect New Mexico Citizens from Assisted Suicide.

Diane Coleman
By Diane Coleman:

As many of our readers have heard by now, a New Mexico Second Judicial District Judge has ruled that the state constitution establishes a fundamental right of people who are diagnosed as terminally ill to receive a lethal prescription from a doctor, with a corresponding right of the doctor not to be prosecuted under the state law that prohibits assisted suicide.

The judge admitted that the conduct involved would fall within the prohibition on assisted suicide enacted by the state legislature, and that the legislature was aware of the public debate on the issue and wrote the law in a way that clearly included physician assisted suicide. She even admitted that calling it “aid in dying”, as assisted suicide proponents advocate, doesn’t change the fact that it is prohibited by the statute. But she ruled that the state constitution makes “aid in dying” a fundamental right. On that basis, she carved it out of the statute, asserting that no state interest justified limiting the fundamental right, thus declaring the statute unconstitutional as to “aid in dying.”

Stephen Drake has been talking about the proponents’ word game in promoting the term “aid in dying” for years. I’ll refer readers to his entertaining piece entitled Using and Promoting Change of Language to Make the Objectionable Acceptable.

The effort to sell this language as a way of avoiding substantive concerns did not get anywhere in Connecticut. As I pointed out in my blog on a 2012 interview about the New Mexico case with Health Policy Solutions (Doctors, patient challenge New Mexico assisted suicide ban), the Connecticut court viewed this as more appropriate for legislative than judicial action, stating:
Legislative determination is particularly important given the significant medical legal and ethical concerns about legalized physician assisted suicide that have been raised across the country. Among the other difficult and important public policy concerns that the legislature would have to evaluate – and is uniquely positioned in our system of government to evaluate – are the following: 
-  Whether physician-assisted suicide threatens the most vulnerable in society, including the poor, the elderly, and the disabled, who are at risk of being threatened, coerced, or influenced to end their lives to spare their families the financial costs and emotional strain of caring for them; …  
- Whether physician-assisted suicide shifts the focus of physicians and insurers away from vitally important measures such as identifying and treating depression and providing end-of-life pain control and palliative care; . . .  
- Whether physician-assisted suicide undermines the physician-patient relationship and the integrity of the medical profession by eroding patient trust in the doctor’s role as healer;…  
- Whether physician-assisted suicide opens the door to the possibility of involuntary euthanasia, as has occurred in the Netherlands, because “what is couched as a limited right to ‘physician-assisted suicide’ is likely, in effect, a much broader license which could prove extremely difficult to police and contain,” Washington v. Glucksberg, 521 U.S. 702, 733 (1997). (Blick Decision on Motion to Dismiss.)
The New Mexico judge didn’t seem to feel the need to get into all that. In fact, the “Findings of Fact” read like C&C platitudes and propaganda rather than objective statements of fact. Just to highlight two of them:
[Finding of Fact] 31. Where it is permitted, the application for an aid in dying prescription must be made by the mentally competent, terminally ill patient and cannot be made by a surrogate decision maker.
But the Oregon, Washington and Vermont statutes all say that your request for a lethal prescription can be made by someone else familiar with your manner of communicating, which would include the typical surrogate. The disability experience is that doctors all too often prefer to talk to a relative or other companion rather than the person with a disability.
[Finding of Fact] 32. Where it is permitted, an aid in dying prescription must be self-administered by the mentally competent, terminally ill patient and cannot be administered by a surrogate decision maker.
As elder law attorney Margaret Dore has pointed out, assisted suicide statutes provide that the person must be competent at the time of the request for a lethal prescription, but say nothing about the time the dose is administered. More importantly, no independent witness is required at the death, and without such witness, there’s no way to know whether the fatal drugs were administered by the person or their surrogate.

It all comes back to the conclusion I reached about the New Mexico case when I last wrote about it:
The New Mexico plaintiffs are all people who seem privileged enough to be justified in their confidence that the patient in this case will not be coerced into assisted suicide, will not be denied care that she wants, will not be treated like an unwanted burden on those around her, and is not at risk of being administered the lethal drugs without her consent. 
It would be nice if everyone with a difficult illness could have the same confidence.  But in the real world, where elder abuse is on the rise, C&C’s platitudes should not distract us from our collective obligation to consider the impact on everyone, not just the privileged few.
What needs to happen next is an appeal by the New Mexico Attorney General. Please contact: AG Gary King through his Director of Communications Phil Sisneros at: to urge that essential next step.

 Link to the online petition: Protect New Mexico Citizens from Assisted Suicide.

Diane Coleman

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