Sunday, May 29, 2016

With Respect, I Dissent on End-of-Life Rights

I like and respect Bishop Oscar Cantú, but his recent column on end-of-life laws deserves a strong response.

Any religious group may view this issue as it chooses; but none has the right to dictate to me whether I can end my life if an incurable disease is causing me deep pain or discomfort the doctors cannot relieve.

It's my body. You may believe that yours belongs to God. Fine. Mine belongs to me and my wife. If it imprisons me in a world of pain, incurable by medical science, I should be allowed to leave it if I so desire. 
Bishop Cantú makes two major points: 
“First, legalizing assisted suicide would allow an undue and tragic pressure to enter the equation for families dealing with a terminally ill patient.”

This objection – a very reasonable concern to which Amsterdam and other jurisdictions have found reasonable solutions – does not justify keeping me imprisoned in misery. A more compassionate law could allow me the option, but require a doctor or two to certify both my sanity and my condition. The worry that families will pressure dying parents to commit suicide to stop the financial bleeding is real; but those who would do that could do it now, without legal sanction. If greed outweighs ethics and familial love, it will override the law in a nanosecond. So keeping suicide illegal could might prevent a truly incapacitated person from killing himself or herself, but would not prevent a malicious son or daughter from pushing a parent into suicide and providing the means.

The Bishop writes, “Secondly, New Mexico already has a tragically high rate of suicides. . . . I can see a very easy jump in logic from legalization of suicide for a terminally ill cancer patient to a young person suffering from clinical depression, or someone who has suffered the tragic loss of a loved one.”

I can't see that jump. Again, people whose hearts are bent on suicide will manage it. That's particularly true for physically healthy young people, capable of methods not easily available to a bed-ridden cancer or ALS patient. Laws won't stop 'em; and as to helping them, that would still be illegal under any reasonable law. Suicidal young folks don't care what the law is. Can you see a large contingent of high school kids occupying the lobby of the Roundhouse to press for a law that would allow them to kill themselves if they get sad?

Bishop Cantú's His claim that the Church's position is based on human experience and the wisdom developed therefrom is unconvincing. Like the Church's position on birth control (which the inventor of birth control, himself a Catholic, wrongly assumed would be favorable) it is a determination by unmarried old men that their God would or should oppose it. (It's hard to imagine Jesus, as I imagine him, standing by the bedside of a still conscious but absolutely miserable dying person and insisting s/he spend extra days or weeks in misery, because church rules require it. Of course, Jesus would miraculously cure the person; but most of his servants, even the most dedicated ones, haven't that power.) 
Stripped of religious considerations, why shouldn't an incurably sick person have the right to end a miserable life that can't improve? Doesn't hurt anyone else. Doesn't cost the public money. Doesn't pollute our environment. 
Each state should carefully craft a law that allows people in such dire straits to help themselves exit, with expert help, creating effective safeguards against abuse of that power. Someone you love may desperately need that law.
[This column appeared in the Las Cruces Sun-News this morning, 28 May, and is also up on KRWG-TV's website.  I invite comments, questions, and criticism.]

[The part about liking and respecting Bishop Cantú deserves emphasis.  I don't know him well.  He was a guest on my radio show soon after he was posted here, and I liked him immediately and respected him.  He gave answers that were thoughtful, human, and real.  He seemed a caring, capable person.  Yeah, I disagree with his Church's position on some issues; but he seems a good man, and I have not found all clerics (Catholic, Muslim, Protestant, Buddhist) to deserve that simple label.
[But both belief and intense personal experience have given me a strong opinion on this matter.]

[The New Mexico Supreme Court may soon decide this question for us, in a case called Morris v. Brandenburg.  In that case, a district court held that prohibiting a physician from assisting a person with a severe, incurable situation who wanted to expedite his or her death violated a fundamental liberty interest of the patient.  The New Mexico Court of Appeals reversed, writing:
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 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.

With such cases, if a state action violates a fundamental liberty interest, the state has to have an extremely good reason.  Where it violates an individual interest that is important but not "fundamental", it still needs to be furthering an important state interest.  Thus the "intermediate" standard of review.  
However: one of the three judges dissented.  Judge Linda M. Vanzi wrote:

our judicial obligation is to give effect to the liberty interests of all New Mexicans in accordance with the guarantees of our Constitution. . . . I would hold that the New Mexico Constitution protects aid in dying as a liberty interest subject to heightened scrutiny. While it is impossible for me to conclude that governmental infringement of the right to aid in dying could be justified by any lesser interest than that required for constitutional rights previously recognized as “fundamental,” the required level of scrutiny need not be determined in this case. For the State concedes that mentally competent, terminally ill citizens have a fundamental right to decide for themselves when and how to end their lives, and it provides no acceptable justification for denying them the only means available to effectuate that right in a peaceful and dignified manner—a lethal dosage of medication prescribed by a willing physician acting in accordance with the established standard of care for aid in dying. It is beyond dispute that the suffering of these citizens “is too intimate and personal for the State to insist, without more, upon its own vision . . . , however dominant that vision has been in the course of our history and our culture.” Casey, 505 U.S. at 852.

I'm hopeful that the New Mexico Supreme Court, which heard oral argument in October 2015, will reverse the Court of Appeals.  I think it should do so.  If you read the words and think a moment, only the right to live could be a more fundamental personal right to an individual than the right to end life under such circumstances; but as the U.S. Supreme Court noted in 1997 in Washington v. Glucksberg, hundreds of years of western laws and rule disapproving suicide undermine the argument that it's a fundamental liberty interest.  Further, as Judge Vanzi noted, the NM Cout of Appeals opinion said it was legal for patients to stockpile medicine and end their lives -- they just can't have any assistance from a physician!   Ideally, our Legislature would act on this. 
Even under federal Constitutional law, Washington v. Glucksberg is not the final word, as the U.S. Supreme Court, in deciding Washington's statute on assisting suicide was not invalid on its face, specifically did not reach the precise question here.  As the NM Court of Appeals opinion noted:

Five Justices wrote separately, reserving the possibility that the Court might recognize a constitutional right to “physician-assisted suicide” in certain circumstances, while relying on different grounds and different reasoning. Justice Stevens concurred in the result, explaining that all of the patient plaintiffs had died during the litigation and that the majority opinion held that “Washington’s statute prohibiting assisted suicide is not invalid ‘on its face[.]’ ” Id. at 739 (Stevens, J., concurring). Justice O’Connor joined the majority opinion “because [she] agree[d] that there is no generalized right to ‘commit suicide[,]’ ” stating that there was no need to reach “the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death” in the context of what she characterized as the facial challenges presented in Glucksberg and the related case, Vacco v. Quill, 521 U.S. 793 (1997).11 Glucksberg, 521 U.S. at 736 (O’Connor, J., concurring). Justice Ginsburg concurred “substantially for the reasons stated by Justice O’Connor.” Id. at 789 (Ginsburg, J., concurring). Justice Breyer also joined Justice O’Connor’s opinion, “except insofar as it joins the majority[,]” writing separately to say that our legal tradition might protect a "right to die with dignity,” at the core of which “would lie personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering—combined[,]” and to emphasize that terminally ill patients experiencing “severe physical pain” might have a constitutionally protected interest. Id. at 789-91 (Breyer, J., concurring) (internal quotation marks omitted). Taking a completely different approach, Justice Souter stated that “the importance of the individual interest here, as within that class of ‘certain interests’ demanding careful scrutiny of the State’s contrary claim, cannot be gainsaid[,]” but did not reach the question whether “that interest might in some circumstances, or at some time, be seen as ‘fundamental’ to the degree entitled to prevail” because he was “satisfied that the State’s interests . . . [we]re sufficiently serious to defeat the present claim that its law is arbitrary or purposeless.” Id. at 782 (Souter, J., concurring) (citation omitted).

So this issue may find resolution in the state or federal court system and/or the Legislature.  My guess is that the New Mexico Supreme Court will agree with Judge Nash, not the Court of Appeals; but in New Mexico, a decision on either side will likely be controversial.]

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