Morris v. Brandenburg, 33,630

• Decision Date: 11 August 2015
• Docket Number: NO. 33,630,33,630
• Parties: KATHERINE MORRIS, M.D., AROOP MANGALIK, M.D., and AJA RIGGS, Plaintiffs-Appellees, v. KARI BRANDENBURG, in her official capacity as District Attorney for Bernalillo County, New Mexico, and GARY KING, in his official capacity as Attorney General of the State of New Mexico, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

KATHERINE MORRIS, M.D.,
AROOP MANGALIK, M.D., and AJA RIGGS, Plaintiffs-Appellees,
v.
KARI BRANDENBURG, in her official capacity as
District Attorney for Bernalillo County, New Mexico,
and GARY KING, in his official capacity as
Attorney General of the State of New Mexico, Defendants-Appellants.

NO. 33,630

COURT OF APPEALS OF THE STATE OF NEW MEXICO

August 11, 2015

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Kennedy Kennedy & Ives, LLC
Laura Schauer Ives
Albuquerque, NM

ACLU of New Mexico Foundation
Alexandra Freedman Smith
Albuquerque, NM

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Kathryn L. Tucker
Ojai, CA

for Appellees

Hector H. Balderas, Attorney General
Scott Fuqua, Assistant Attorney General
Santa Fe, NM

for Appellants

Rothstein, Donatelli, Hughes
Dahlstrom, Schoenburg & Bienvenu, LLP
Kristina Martinez
Carolyn M. "Cammie" Nichols
Santa Fe, NM

for Amicus Curiae The ALS Association New Mexico Chapter

Montgomery & Andrews, P.A.
Lara Katz
Santa Fe, NM

for Amicus Curiae Disability Rights Amici: Not Dead Yet, Adapt, American
Association of People With Disabilities, Autistic Self Advocacy Network,
Disability Rights Education and Defense Fund, National Council on Independent
Living, and the United Spinal Association

Garcia Ives Nowara, LLC
Molly Schmidt Nowara
Albuquerque, NM

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Covington & Burling, LLP
Christina G. Kuhn
Washington, DC

for Amicus Curiae American Medical Women's Association, American Medical
Student Association, and New Mexico Public Health Association

Robert Schwartz
Albuquerque, NM

for Amicus Curiae New Mexico Psychological Association

Alliance Defending Freedom
Catherine Glenn Foster
Washington, DC

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Emil J. Kiehne
Albuquerque, NM

for Amicus Curiae State of New Mexico Senators William F. Burt, Mark Moores,
Steven P. Neville, William E. Sharer, and Pat Woods; State of New Mexico
Representatives Paul C. Bandy, Sharon Clahchischilliage, David M. Gallegos,
Jason C. Harper, Yvette Herrell, and James R.J. Strickler; and Christian Medical
and Dental Associations

Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A.
Juan L. Flores
Jaime L. Dawes
Albuquerque, NM

for Amicus Curiae Michael J. Sheehan of the Archdiocese of Santa Fe, Bishop
Oscar Cantú of the Diocese of Las Cruces, and Bishop James A. Wall of the
Diocese of Gallup

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OPINION

GARCIA, Judge.

{1} A New Mexico statute makes "assisting suicide" a fourth degree felony and defines the proscribed conduct as "deliberately aiding another in the taking of his own life." NMSA 1978, § 30-2-4 (1963). The question presented is whether this statute may constitutionally be applied to criminalize a willing physician's act of providing a lethal dose of a prescribed medication at the request of a mentally competent, terminally ill patient who wishes a peaceful end of life (aid in dying) as an alternative to one potentially marked by suffering, pain, and/or the loss of autonomy and dignity. The district court concluded that Section 30-2-4 is invalid under two provisions of the New Mexico Constitution as applied to any physician who provides aid in dying to a patient. In reaching its conclusion, the district court determined that aid in dying is a fundamental liberty interest and that the State did not meet its burden to prove that Section 30-2-4 met a strict scrutiny standard of review. We conclude that aid in dying is not a fundamental liberty interest under the New Mexico Constitution. Accordingly, we reverse the district court's order permanently enjoining the State from enforcing Section 30-2-4. In addition, we affirm the district court's determination that, for statutory construction purposes, Section 30-2-4 prohibits aid

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in dying. Finally, I would also remand to the district court for further proceedings regarding the remaining aid in dying claims raised by Plaintiffs, including the entry of findings and conclusions concerning whether Section 30-2-4 meets the intermediate standard of review required for important individual liberty interests under the New Mexico Constitution and/or whether it passes a rational basis standard of review as applied to aid in dying.

BACKGROUND

{2} Plaintiffs are Dr. Katherine Morris, a surgical oncologist at the University of New Mexico (UNM); Dr. Aroop Mangalik, a UNM physician; and Aja Riggs, a patient who has been diagnosed with uterine cancer.¹ In the course of their practices, Drs. Morris and Mangalik provide medical care to mentally competent, terminally ill adults who have expressed interest in what Plaintiffs call "aid in dying," which the parties define as the "practice of a physician providing a mentally competent[,] terminally ill patient with a prescription for [a lethal dose of] medication which the patient may choose to ingest to achieve a peaceful death and thereby avoid further suffering."

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{3} Aid in dying has been legal in Oregon for nearly two decades. Or. Rev. Stat. Ann. §§ 127.800 to .897 (1997, as amended through 2013). Dr. Morris, who previously practiced in Oregon, administered aid in dying at the request of two patients in that state. The practice is also legal in Vermont, see Vt. Stat. Ann. tit. 18, §§ 5281 to 5292 (2013), and Washington, see Wash. Rev. Code Ann. §§ 70.245.10 to 70.245.904 (2009), and has been judicially recognized as a valid statutory defense to homicide in Montana, see Baxter v. Montana, 2009 MT 449, ¶ 1, 354 Mont. 234, 224 P.3d 1211. The practice is statutorily stated to be illegal in five other states, see Ark. Code Ann. § 5-10-106 (2007) (expressly prohibiting "physician-assisted suicide"); Ga. Code Ann. § 16-5-5(b), (d) (2012) (indicating application to physicians by requiring healthcare providers to notify the licensing board upon conviction); Idaho Code Ann. § 18-4017 (2011) (same); N.D. Cent. Code Ann. § 12.1-16-04 (1991) (prohibiting the issuance of prescriptions for the purpose of assisting suicide); R.I. Gen. Laws § 11-60-3 (1996) (prohibiting licensed healthcare practitioners from providing another the physical means to commit suicide), and is potentially prohibited in the majority of remaining jurisdictions by blanket manslaughter statutes similar to Section 30-2-4. See, e.g., Cal. Penal Code § 401 (1905).

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{4} Uncertain about the legality of aid in dying in New Mexico, Drs. Morris and Mangalik filed suit seeking a declaration that they cannot be prosecuted under Section 30-2-4. They alleged that the statute does not apply to aid in dying, and if it does, such application offends provisions of our state constitution, including Article II, Section 4's guarantee of inherent rights and Article II, Section 18's Due Process Clause. The district court held a trial on the merits at which several witnesses testified for Plaintiffs. That testimony was uncontroverted and formed the basis for the district court's findings. The testimony and findings, which remain undisputed, establish the following facts.

{5} Quality of life for terminally ill patients varies depending on the specific illness, its manifestations in the patient, and the patient's physical and psychological reserves. But progressive terminal illness, by definition, interferes with vital functions, such as eating and drinking, breathing, blood flow, and the basic functions of the brain. At any given moment, there are terminally ill patients in New Mexico "who find the suffering from their illness to be unbearable, despite efforts to relieve pain and other distressing symptoms." Some of those patients find the current options in end-of-life care to be inadequate to relieve their suffering and want the option of aid in dying. The dying process is often extremely difficult for patients with terminal

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illnesses. As a surgical oncologist, Dr. Morris has treated cancer patients with a variety of end-of-life symptoms, such as irremovable "obstruction[s]" that cause the inability to swallow, fluid accumulation that leads to rapid and repeated distention of the abdomen, and swelling of the skin such that it splits open. In some instances, a patient's suffering is such that doctors induce unconsciousness—the so-called "barbiturate coma"—and then withhold hydration and nutrition until death arrives. As one example, Dr. Morris recalled treating a "really strong" firefighter who was approximately six foot, five inches tall and weighed 280 pounds. His skin cancer led to metastasis of the spine, which left him "sobbing in pain." All doctors could do to ease his pain "was make him unconscious" by administering "huge doses" of narcotics, muscle relaxants, and sedatives.

{6} Dr. Morris testified that sedating people to this level "suppresses their breathing and sometimes ends their li[ves]." The removal of life-sustaining nutrition and hydration also hastens the death of the sedated patient. Experts at trial described the "double-effect" of this practice of terminal (or palliative) sedation, as it is called: Although the physician's "primary intent"—or more accurately, motive—is to eliminate pain, the physician "inevitably know[s]" that administering such high doses of consciousness-lowering medications—at times, tens or even hundreds of times the

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normal dosage—will lead, in close proximity, to the patient's death. Palliative sedation is an accepted medical...