January 28, 2019

Aid-in-dying bill builds support but faces tough questions from critics

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New Mexico State Senate. Wikicommons

Elizabeth Whitefield walked the halls of the state Capitol a couple of years ago, urging lawmakers to pass a bill that would let her choose when and how to end a long struggle with cancer.

The disease, she told one committee, had stolen everything from her — the ability to work, to eat, to drink. The retired judge from Albuquerque was blunt: She expected death would be slow and painful.

“Don’t let me die without dignity,” she said in pushing for legislation that would allow medical professionals to prescribe terminally ill patients lethal drugs to end their own lives.

The state Senate voted down the bill.

And she would not live to see it introduced again.

Whitefield died in August.

But the End of Life Options Act she supported now bears her name.

House Bill 90 would add New Mexico to a small list of mostly Western states that allow what proponents call medical aid in dying, which is also known as assisted suicide.

For proponents like Whitefield, the bill would provide a certain measure of freedom to terminally ill patients struggling with some of the most intimate decisions anyone can face. But opponents argue New Mexico’s law lacks the sort of safeguards other states have adopted and, more broadly, could ultimately change how we all view death.

New Mexico law prohibits anyone from deliberately aiding another person in taking their own life.

Aja Riggs, who was diagnosed with cancer in 2011, went to court alongside her doctors to argue the law did not apply to physicians and that medical aid in dying should be considered legal in New Mexico.

A trial court judge agreed that prohibiting medically assisted suicide infringes on a patient’s right under the New Mexico Constitution to “life, liberty, and seeking and obtaining happiness.”

A divided appeals court ultimately ruled in Riggs’ favor.

But the state Supreme Court took a different view, deciding in 2014 that medical aid in dying is not a constitutional right.

“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,” Justice Edward Chávez wrote.

That seemed to leave the issue, and all the big policy questions it poses, up to the Legislature.

State Rep. Debbie Armstrong, D-Albuquerque, introduced the End of Life Options Act in 2017.

The bill prompted a series of emotional hearings, with New Mexicans like Whitefield delivering visceral appeals for what they argued is a matter of choice. But the issue also spurred a range of religious, moral and legal concerns, including fears about abuse and coercion as well a broader undermining of the sanctity of life.

Seven Democrats voted against the bill in the Senate, and only one Republican voted for it.

“Last time it was so emotional — it was the first time anyone had really thought about it,” Armstrong said of the debate around the 2017 bill. “… We have moved, I think, a lot of people forward.”

Under the law she is sponsoring this year with Sen. Liz Stefanics, D-Cerrillos, a patient could ask a medical provider to prescribe drugs to end their own life. That medical professional — which could be a doctor, an advance practice nurse or a physician assistant — would have to determine the patient has a terminal illness, has the capacity to choose medical aid in dying, is making the request voluntarily and can administer the drugs themselves.

Two witnesses would have to sign the request.

And the medical professional would have to discuss feasible alternatives with the patient, such as further treatment, hospice or palliative care.

The patient would also have to get a second opinion.

Then, there would be a 48-hour waiting period before the patient could have their prescription filled.

The drugs would have to be administered by the patient.

Critics point out other states with similar laws have longer waiting periods.

Moreover, other states have tighter definitions of which patients qualify. Colorado, for example, only allows this option for patients with a prognosis of six months.

During the first year of the program in Colorado, 69 people received prescriptions from 37 doctors for aid-in-dying medications. Forty-four of those patients had been diagnosed with cancer.

Colorado’s law also requires patients make the request twice of their attending physician.

“Nothing about this is safe,” said Rep. Gregg Schmedes, a newly elected Republican from Tijeras and a physician.

Regardless of the waiting periods or requirements for second opinions, he questions whether such a law would create a financial incentive in a health care industry that is constantly looking to cut the costs of treating the most expensive patients.

“I’m not saying anyone would maliciously impose on anyone,” he said.

But, referring to patients who are the most expensive to treat, he added: “Companies are constantly under financial pressure and they respond to that to stay afloat. There’s a already a spotlight on these high-utilizers.”

Beyond that, he questioned how it will change views of death and life.

“Over a generation, over two generations, it will send a message and shape our culture to devalue the aging process,” he said.

Armstrong pointed out that patients can already elect to end treatment. The goal, she said, is to let terminally patients facing death decide when and how they will end their lives — where they are, who is around them.

While other states have specific timelines, she said those longer waiting periods or requirements for multiple requests could turn out to be barriers for patients.

“The reality is, even in those other states, people die waiting to get through those hoops,” said Armstrong, a former secretary of the state Aging and Long-Term Services Department. “… I’ve worked with people who are terminally ill. I have worked in hospice, been the caregiver at the bedside of family and friends. It’s a very personal issue for me. Some have suffered greatly.”