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Aid in Dying: Implementation by Statute or Court Rule?

posted on Wed, Oct 26 2016 1:01 pm by Clifford M. Rees

Aid in Dying (AID) is increasingly in the news as an emerging public health issue. The death of Brittany Maynard, a young woman terminally ill with brain cancer who uprooted herself from California to Oregon in 2014 to avail herself of the process established in the Oregon Death with Dignity Act invites public health practitioners to revisit the debate sparked by earlier end-of-life controversies. Currently only Oregon, Washington, Vermont, and California permit AID by statute.

Earlier cases dating back to the 1980s concerned a state’s constitutional interest in preserving the lives of mentally incompetent patients in persistent vegetative states. Best known were the cases of Karen Ann Quinlan in New Jersey, Nancy Beth Cruzan in Missouri, and Terri Schiavo in Florida.

Ms. Maynard’s case though, involves a different legal issue than those concerning Quinlan, Cruzan, and Schiavo. The contemporary legal AID movement focuses primarily on the issue recently presented to the New Mexico Supreme Court in Morris v. Brandenburg.  Does a mentally competent, terminally ill patient have 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?

The New Mexico Supreme Court’s holding was “no”, in contrast to the Montana Supreme Court’s 2009 holding in Baxter v. Montana that such a constitutional right exists under the privacy and dignity provisions of the Montana Constitution.

The Brandenburg court held that New Mexico’s prohibition on assisting suicide criminal statute, enacted in 1963, was constitutional and that physician AID falls within the proscriptions intended by the law. It seemed important to the Court that exceptions to physician AID had subsequently been enacted by the New Mexico Legislature in the Uniform Health Care Decisions Act for withdrawal of life-sustaining treatment at the patient’s direction and the Pain Relief Act for the administration of pain medication even if it hastens the patient's death, but no legislative exception had yet been created for physician assisted end–of-life decisions by competent terminally ill adult patients.

I attended the Brandenburg oral arguments before the New Mexico Supreme Court in late October 2015, and the Justices gave no hint from their questions directed to counsel that it would ultimately decide to exercise judicial restraint and defer to the legislative and executive branchs’ wisdom to regulate by statute and rule. The issues that the Court felt should be addressed by the other branches of government were how to define a terminally ill patient, what would be the criteria for assuring a patient is qualified to make an end-of-life decision, what medical practices to aid a patient in dying would be acceptable and what constitutes a safe medication.

Montana’s legal analysis differed from New Mexico’s. It found that suicide is not a crime under Montana state law. It further reviewed Article II, Sections 4 and 10 of the Montana Constitution which address individual dignity and the right to privacy, provisions not found in the New Mexico Constitution. These rights to dignity and privacy formed the basis for the Montana Supreme Court’s finding that these rights include a physician’s assistance in dying. Further, there was no indication in Montana’s Terminally Ill Act that physician assistance in dying is against public policy.

The differences between the two judicial decisions can be broadly attributed to our system of federalism, where separate sovereign states can enact separate statutory authority which can lead to separate judicial interpretations and results. In the absence of controlling federal authority, this newly-emerging area of law will continue to evolve on a state-by-state basis.

This post was prepared by Clifford M. Rees, JD, Practice Director for the Western Region of the Network for Public Health Law, Sandra Day O’Connor Arizona State University College of Law, with research assistance from Alexandra Hess, Legal Researcher and JD Candidate, Class of 2018, Sandra Day O’Connor Arizona State University College of Law.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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