Saturday, January 18, 2014

A New Mexico district court legislates assisted suicide

Leslie Smith, author of the Human Exceptionalism blog, brought this to my attention. He opened his post on the subject with this:

If you ever wonder why there are so many radical and extreme lawsuits, wonder no more. As I have often said about a variety of issues, it only takes one judge to break down the walls of democratic governance and impose an ideological view.

Such a judge, once again, has been found. If you're finding it as difficult to believe as I did, that a district court could legislate assisted suicide, go and read the decision. It's right here.

Here's the short and simple version as I understand it. Assisted suicide is prohibited by New Mexico law. One of the plaintiffs, a patient currently in remission from cancer, wants the future option of assisted suicide should the cancer return. According to Smith the lawsuit is backed by Compassion and Choices, a group formed out of a merger with the former Hemlock society. Defendants in the suit were state officials whom the plaintiffs were asking the courts to prohibit from prosecuting any health care provider involved in medically assisted suicide.

As Smith points out the judge seems to have a profoundly misinformed view of terminal illness:

First, Judge Nan G. Nash finds that terminal illness is nothing but suffering–despite the great advances of hospice and the meaning many find in that time of life.  From the decision:
Once diagnosed, these patients are subjected to invasive medical tests and procedures, loss of autonomy and control, extreme pain and other equally insidious indignities. When given their terminal diagnosis, they must say good bye to friends and loved ones, put their affairs in order, come to terms with their imminent death and await the inevitable. The activities which give their lives meaning are stripped away, one after the other, as their disease progresses
Having painted the bleakest and most pessimistic picture possible, she ignores that not all people diagnosed as “terminal,” actually die from their condition.

The court's ruling tends to avoid use of the term “assisted suicide” in favor of “aid in dying” to describe the process as applied to a patient with terminal illness. No matter what it's called the judge acknowledges repeatedly in her decision that the process is clearly in violation of New Mexico's statute against assisted suicide. But then she goes on to say that to deprive a terminally ill patient of such an option would violate New Mexico's constitutional guarantee of the right to “enjoy life and liberty and to seek and obtain safety and happiness.” It's a stretch, I know. And so from the concluding statements:

For the reasons stated herein, the Court grants Plaintiffs the requested injunctive relief prohibiting Defendants from prosecuting physicians who provide aid in dying to mentally- competent, terminally-ill patients.
The Defendants, their agents, employees, representatives, and all those acting in concert with them, shall be permanently enjoined from prosecuting any physician for providing aid in dying to a mentally-competent, terminally-ill individual.

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