By Diane Carman
August 19, 2012
The question before the court in New Mexico is absurdly simple and yet impossibly complex. What is the meaning of “assisting suicide”?
If a terminally ill patient refuses a ventilator or a feeding tube and the physician yields to that decision, is that assisting suicide? If the patient is in excruciating pain and requests total sedation and no nutrition or fluids, can the doctor be held accountable for his death? What if the patient seeks a prescription from her physician so that when the pain of dying is overwhelming she can seek the ultimate relief on her own?
Two oncologists from the University of New Mexico Health Science Center and a patient with advanced cancer are the plaintiffs in a lawsuit filed in New Mexico District Court designed to clarify the legal definition of assisting suicide. That decision, likely to come in the next year, could send reverberations through the medical establishment in the Rocky Mountain West and across the country.
Morris vs. New Mexico contends that the statute outlawing “assisting suicide” never was intended to apply to physicians treating patients in the late stages of terminal illnesses. The plaintiffs believe that “patients who are dying and finding themselves trapped in an unbearable dying process should be able to choose aid in the dying process,” said Kathryn Tucker, director of legal affairs for Compassion & Choices, a nonprofit organization that works to expand choices in end-of-life care. She is one of the attorneys representing the plaintiffs in the case.
Compassion & Choices advocates for physicians to be allowed to prescribe medication to mentally competent terminal patients who can administer the drugs to themselves “to bring about a peaceful death,” Tucker said.
The organization contends that it’s fundamentally different than the commonly held idea of suicide, which presumes that without the suicidal acts, the person would be able to live. Opponents say it is exactly the same, an affront to human dignity, false compassion and highly susceptible to abuse.
If anyone had asked 48-year-old Aja Riggs a year ago for her opinion on assisting suicide, chances are she would have supported it. “I would have said, ‘Sure, I think people have the right to choose at the end of their lives if they’d like a physician’s aid in dying.’ ” She’d never had a particularly keen interest in the issue, though.
That changed 11 months ago.
Now, the self-employed professional organizer from Santa Fe said, “It’s really important to me.”
Riggs was diagnosed with uterine cancer last August. Surgery in October revealed that her condition was at stage 3c, far more advanced than doctors had expected.
After she recovered from the surgery, she underwent chemotherapy, during which another tumor developed. Then she had radiation treatments and now is receiving chemotherapy again.
“When I was diagnosed, I decided I wanted the most aggressive treatment that’s going to be effective. I thought, if I can get another 20 years in this life or so, wouldn’t that be great,” she said.
But Riggs is realistic.
“If my disease progresses, more difficult individualized decisions will be coming up,” she said. “If this disease does look like it will end my life, I can’t say for sure how I will make those decisions. … I can’t tell you for sure that I would get that prescription, fill it and use it. But I absolutely want to have that choice.”
Morris vs. New Mexico is modeled on Baxter vs. Montana, which was decided by the Montana Supreme Court in 2009. In a 5-to-2 ruling, the Montana court said that physician aid in dying was protected under the law providing for living wills.The court said that the state’s Rights of the Terminally Ill Act “very clearly provides that terminally ill patients are entitled to autonomous, end-of-life decisions, even if enforcement of those decisions involves direct acts by a physician.”Laws on assisted suicide are the purview of the states. In a case challenging Oregon’s assisted suicide law, the U.S. Supreme Court ruled in 2006 that the federal government does not have the power to overrule state statutes in this area.
Colorado’s assisted suicide law states that it is considered manslaughter if a “person intentionally causes or aids another person to commit suicide.”
While the specific statutes across the country are not identical, states generally protect the rights of terminally ill patients to give advance directives and make decisions on their care at the end of life. Tucker, who was among the lead attorneys litigating Baxter vs. Montana, maintains that the long-standing statutes outlawing assisting suicide were never intended to apply to physicians providing end-of-life care for terminally ill patients.
These statutes were “enacted at a time when medicine didn’t prolong the dying process as it does today,” said Tucker. “It’s pretty clear that that was not on the minds of legislators who introduced or voted on these measures.”
Instead, the laws were aimed at people who might provide a distraught teenager with the means to end his life after a bad breakup, or the friend who helps someone make a noose after he lost his job, she said. “There is an appropriate role for these statutes, but I don’t think they have anything to do with aid in dying.”
Professor Robert Schwartz of the University of New Mexico School of Law said that the argument in the New Mexico case is that “the court should defer to physicians in defining what constitutes appropriate care.”No one is going to argue that a physician couldn’t, for example, prescribe palliative sedation. No one is arguing that a patient couldn’t decide not to take nutrition and hydration, at least under New Mexico law. That’s entirely the patient’s decision,” he said. “This is one of the arrows in the doctor’s quiver, one way to provide adequate care at the end of life.”The Colorado Medical Treatment Decision Act, signed by Gov. Bill Ritter in 2010, explicitly provides for persons to refuse medical treatment, nutrition and hydration, and to execute advance directives outlining the circumstances under which they want such measures to be taken on their behalf.
Tucker and Schwartz said that momentum for physician-assisted suicide is strong across the West. Legislation that legalized it in Oregon and Washington, along with the Montana court decision, have generated growing support for the practice, and both advocates and opponents are watching the New Mexico case closely.
The most outspoken opponents to physician-assisted suicide have been leaders in the disability rights community. Diane Coleman, president and CEO of the nationwide disability rights organization Not Dead Yet, said there already are sufficient means for terminally ill patients to end their lives without providing immunity from prosecution for physicians who prescribe lethal drugs.
“The risks to many outweigh the alleged benefit to the few,” she said. Those risks include people succumbing to coercion from heirs or other family members, or to pressure from health insurers who deny services needed to cope with limitations caused by their conditions.
Rather than assisting people in ending their lives, Coleman suggests that physicians should help patients access the support they need to live well.The public response to Aja Riggs’ stand on assisted suicide has been “overwhelmingly positive,” Riggs said. “People have said, ‘Thank you so much for speaking out on this.’”It’s important to remember, she said, that the only patients who would be allowed to obtain physician assistance in suicide would be those who are terminally ill and mentally competent.
“This is something the patient chooses and does for herself. It’s not the doctor doing it,” she said. “It’s not a choice between life and death. It’s a choice about what kind of death.”