Morris v. Brandenburg

• Decision Date: 30 June 2016
• Docket Number: NO. S–1–SC–35478,S–1–SC–35478
• Citation: 2016 NMSC 027,376 P.3d 836
• Parties: Katherine Morris, M.D., Aroop Mangalik, M.D., and Aja Riggs, Plaintiffs–Petitioners, 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–Respondents.
• Court: New Mexico Supreme Court

376 P.3d 836

2016 NMSC 027

Katherine Morris, M.D., Aroop Mangalik, M.D., and Aja Riggs, Plaintiffs–Petitioners

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–Respondents.

NO. S–1–SC–35478

Supreme Court of New Mexico.

Filing Date: June 30, 2016

Kennedy, Kennedy & Ives, LLC, Laura Schauer Ives, Albuquerque, NM, ACLU of New Mexico Foundation, Alexandra Freedman Smith, Albuquerque, NM, Disability Rights Legal Center, Kathryn L. Tucker, Los Angeles, CA, for Petitioners.

Fuqua Law & Policy, P.C., Scott Fuqua, Santa Fe, NM, for Respondents.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Emil J. Kiehne, Albuquerque, NM, Alliance Defending Freedom, Catherine Glenn Foster, Washington, DC, for Amici Curiae New Mexico State Senators Mark Moores, Steven P. Neville, et al.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Carolyn M. “Cammie” Nichols, Albuquerque, NM, Compassion & Choices, Kevin Diaz, Portland, OR, for Amicus Curiae Compassion & Choices.

Montgomery & Andrews, P.A., Lara Katz, Santa Fe, NM, Stephen F. Gold, Philadelphia, PA, for Amici Curiae Not Dead Yet, et al.

Coberly & Martinez, LLLP, Kristina Martinez, Santa Fe, NM, for Amicus Curiae The ALS Association New Mexico Chapter.

Robert Schwartz, Albuquerque, NM, for Amicus Curiae New Mexico Psychological Association.

Garcia Ives Nowara LLC, Molly Schmidt Nowara, Albuquerque, NM, Covington & Burling LLP, Christina G. Kuhn, Julia F. Post, Michael S. Labson, Washington, DC, for Amici Curiae American Medical Women's Association, et al.

Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A., Juan L. Flores, Jaime L. Dawes, Albuquerque, NM, for Amici Curiae Archbishop John Charles Wester of the Archdiocese of Santa Fe, et al.

OPINION

CHÁVEZ, Justice

{1} Since at least 1963 it has been a crime in New Mexico to deliberately aid another in the taking of his or her own life. See NMSA 1978, § 30–2–4 (1963). Yet a physician who withdraws life-sustaining treatment from a patient, at the patient's direction, and in compliance with the Uniform Health–Care Decisions Act (UHCDA), NMSA 1978, §§ 24–7A–1 to –18 (1995, as amended through 2015), is immune from criminal liability for such actions. Section 24–7A–9(A)(1). And a physician who administers pain medication to a patient in compliance with the New Mexico Pain Relief Act, NMSA 1978, §§ 24–2D–1 to –6 (1999, as amended through 2012), even if doing so hastens the patient's death, is also immune from criminal liability. See § 24–2D–3. The question in this case is whether a mentally competent, terminally ill patient has a constitutional right to have a willing physician, consistent with accepted medical practices, prescribe a safe medication that the patient may self-administer for the purpose of peacefully ending the patient's life. If we answer yes to the question, a willing physician may assist the patient and avoid criminal liability because Section 30–2–4 would be unconstitutional as applied to the physician. If we answer no to the question, the alternatives for the patient are to (1) endure the prolonged physical and psychological consequences of a terminal medical condition that the patient finds intolerable; or (2) take his or her own life, possibly by violent or dangerous means.

{2} It is not easy to define who would qualify to be a terminally ill patient, or what would be the criteria for assuring a patient is competent to make an end-of-life decision, or what medical practices are acceptable to aid a patient in dying, or what constitutes a safe medication. These concerns require robust debate in the legislative and the executive branches of government. Although the State does not have a legitimate interest in preserving a painful and debilitating life that will imminently come to an end, the State does have a legitimate interest in providing positive protections to ensure that a terminally ill patient's end-of-life decision is informed, independent, and procedurally safe. More specifically, the State has legitimate interests in (1) protecting the integrity and ethics of the medical profession; (2) protecting vulnerable groups—including the poor, the elderly, and disabled persons—from the risk of subtle coercion and undue influence in end-of-life situations, including pressures associated with the substantial financial burden of end-of-life health care costs; and (3) protecting against voluntary or involuntary euthanasia because if physician aid in dying is a constitutional right, it must be made available to everyone, even when a duly appointed surrogate makes the decision, and even when the patient is unable to self-administer the life-ending medication. Therefore, we decline to hold that there is an absolute and fundamental constitutional right to a physician's aid in dying and conclude that Section 30–2–4 is not unconstitutional on its face or as applied to Petitioners in this case.

I. BACKGROUND AND PROCEDURAL HISTORY

{3} Although her cancer is now in remission, Aja Riggs says that it would bring her “peace of mind” to have the option to end her suffering by choosing aid in dying if she eventually becomes terminally ill. Ms. Riggs was diagnosed with uterine cancer in August 2011. After a surgery several months later, doctors informed her that her cancer was more extensive than they had initially thought and was “the most aggressive kind.” At that point, she began chemotherapy. The chemotherapy caused Ms. Riggs to feel “extreme fatigue,” sometimes to the point where “it was too much effort to even talk.” She suffered serious adverse reactions to the cancer treatments, including several trips to the emergency room for an anaphylactic reaction, severe pain in her veins, and a nearly fatal infection. Several months into chemotherapy, her doctors discovered a cancerous tumor, and Ms. Riggs immediately began additional radiation therapy. She experienced many painful side effects from this treatment, including a burning sensation on her skin, constant nausea, and fatigue.

{4} During these excruciating treatments, Ms. Riggs says that she “began to think very seriously about what a death from cancer might be like,” and she was not sure whether she wanted “to go all the way to the end of a death from cancer.” She was afraid that eventually she would be “lying in bed in pain, or struggling not to be in pain, or mostly unconscious with everybody that cares about me around me and all of us just waiting for me to die.” She considered the possibility of a “more peaceful death,” but she still did not want to discuss it with her closest family and friends or her doctor because she “didn't want to implicate anybody else in what might be a crime.” As a result, she thought that the choice to end her suffering would require her to “die alone and in isolation.” By contrast, Ms. Riggs believed that a good death would involve

having the presence of the people that I care about the most, who care about me the most; being at home, not being in the hospital; not having a lot of medical interventions that interfere with my ability to communicate or function as I would like to; to not have pain to the extent that it compromises my ability to connect with people or to be present in the moment; a sense of gentleness and peace to it.

{5} According to Petitioners in this case, under certain circumstances, physician aid in dying could afford Ms. Riggs precisely the peaceful death surrounded by family members for which she hopes, rather than the agonizing, unpleasant, and lonely death that she fears. Petitioners define aid in dying as “a recognized term of art for the medical practice of providing a mentally-competent, terminally-ill patient with a prescription for medication that the patient may choose to take in order to bring about a peaceful death if the patient finds his [or her] dying process unbearable.” This practice is explicitly permitted and regulated by statute in four states: Oregon, Washington, Vermont, and California. See Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800 to .897 (1995, as amended through 2013); The Washington Death with Dignity Act, Wash. Rev. Code §§ 70.245.010 to .220 & 70.245.901 to .904 (2008); Vermont Patient Choice at the End of Life Act, Vt. Stat. Ann. tit. 18, §§ 5281 to 5293 (2013, as amended through 2015); California End of Life Option Act, Cal. Health & Safety Code §§ 443 to 443.22 (2016). Therefore, there is a minor but growing trend among states to recognize physician aid in dying through legislation. Further, in 2009, the Montana Supreme Court held that a terminally ill patient's choice of physician aid in dying can be a valid consent defense to a charge of homicide brought against a physician. Baxter v. State , 2009 MT 449, ¶ 50, 354 Mont. 234, 224 P.3d 1211. No appellate court has held that there is a constitutional right to physician aid in dying.

{6} Dr. Katherine Morris, a surgical oncologist at the University of New Mexico, and Dr. Aroop Mangalik, clinical director at the UNM Cancer and Research Treatment Center, want to provide the option of aid in dying for their terminally ill patients in New Mexico. Dr. Morris previously practiced medicine in Oregon, where she provided physician aid in dying to two patients pursuant to that state's Death with Dignity Act. She testified that when these patients received a lethal prescription they “expressed a feeling of peace that they had this option, and it seemed to relieve some of their suffering that was related directly to loss of control over their own bodies.” Dr. Morris detailed some of the physical ailments that these patients endured in the time immediately preceding death. One of Dr. Morris's patients had a recurring tumor on her chest wall, parts of which would continually die and “essentially [become] rotting meat;” the smell from the tumor was right under the patient's nose, which...