Yesterday afternoon, before a packed courtroom, the New Mexico Court of Appeals held oral argument in the assisted suicide case, Morris v. King. In no particular order, here are my impressions of the oral argument:
1. The Attorney General’s office, represented by Scott Fuqua, defended the statute banning physician-assisted suicide, arguing that the decision to approve, or not approve, the practice of physician-assisted suicide is “quintessentially a legislative decision,” and not one for the courts.
2. Mr. Fuqua at first seemed to concede that an individual has some sort of right to end his or her own life, but not a right to a physician’s aid in committing suicide. This argument was a bit confusing, and drew some questions from the panel attempting to clarify it. For example, Judge Vanzi cited Roe v. Wade and said it would not make much sense to say that a woman has a right to an abortion, but not to the assistance of a physician in obtaining one; similarly, what sense would it make to say that a person has a fundamental right to commit suicide, but not to obtain a doctor’s help in doing so?
3. Eventually, Mr. Fuqua said that the Attorney General’s office agreed with the U.S. Supreme Court’s 9-0 decision in Washington v. Glucksberg, 521 U.S. 702 (1997), which rejected the existence of a constitutional right to commit suicide or to obtain anyone else’s assistance in committing suicide. He asked the Court to reject the recognition of a similar right under the New Mexico state constitution.
4. Mr. Fuqua also drew some challenging questions from the panel asking what the State’s interest would be in preventing a terminally ill, mentally competent person from taking his or her own life.
5. The attorney for petitioners, Laura Schauer Ives, argued that there has been a change in society’s view of assisted suicide analogous to the change in society’s view of same-sex marriage reflected in decisions like Lawrence v. Texas, and that the Court should recognize a similar right under the New Mexico Constitution.
6. Judge Garcia seemed skeptical of this argument, noting that even after from Glucksberg, no state has recognized a constitutional right to assisted suicide; states like Washington and Oregon have approved it by statute.
7. Judges Hanisee and Garcia seemed concerned that by the lack of statutory procedural safeguards to ensure that a patient’s decision to end his or her life is made competently and without pressure from others.
8. Plaintiffs, and the trial court, have relied on Article II, Section 4’s recognition of a right to “seek[…] and obtain[…] safety and happiness,” and Judge Vanzi posed a good question about how the Court could limit the use of these broad terms in recognizing a right. (She may be anticipating that if the supposed right to assisted suicide rests on this provision, then other folks will complain that other statutes infringe on their “safety and happiness.”)
9. There was some discussion about the level of scrutiny that should apply to the statute. Ms. Ives argued that even if rational basis scrutiny applies, the statute still fails because Oregon’s 17-year experience with assisted suicide shows that there are no problems. Mr. Fuqua disputed that the record is so clear. (My own view is that one state’s experience over less than two decades hardly proves that a state can have no rational basis for prohibiting or regulating the practice).
Overall, as with most oral arguments, it is difficult to say which side has the edge here. Whatever the Court of Appeals’ decision is, I expect that our Supreme Court will ultimately review and settle the question.
Here I will disclose, as I have before, that I represent a group of legislators, and the Christian Medical Association, and filed an amicus brief on their behalf supporting the Attorney General’s position that there is no state constitutional right to assisted suicide.
