By Jen Lewis
After decades of concentrated effort in New Mexico, legislation providing end-of-life options to people diagnosed as terminally ill passed in the regular 2021 session and was signed into law April 8, 2021 by Governor Michelle Lujan Grisham.
The legislation is nationally significant and makes New Mexico a leader in affirming human rights to decide whether and when to choose life. Although the legislation was not supported by every Democrat or opposed by every Republican, the fact that both branches of the legislature and the governorship are held by Democrats made the difference in achieving passage of the Elizabeth Whitefield End-of-Life Options Act in this year of monumental changes.
The Act, sponsored by Representatives Deborah A. Armstrong, Dayan Hochman-Vigil, and Patricia Roybal Caballero and State Senators Bill O’Neill and Elizabeth “Liz” Stefanics, passed the House 39 for and 27 against, with two excused and two absent. It passed the Senate 27 for to 17 against, with one abstention. For a roll call vote in the Senate, link to https://nmlegis.gov/Sessions/21%20Regular/votes/HB0047SVOTE.pdf; for the roll call of the House, see https://nmlegis.gov/Sessions/21%20Regular/votes/HB0047HVOTE.pdf
According to the National Conference of State Legislatures (NCSL), New Mexico joins only four other states—California, Oregon, Washington, and Vermont—that guarantee a right for terminally ill people to elect to end their lives with the aid of a prescription from a licensed medical doctor. A court ruling in Montana protects physicians who aid dying patients from prosecution, effectively legalizing the practice. Oregon became the first state to allow physician aid in dying in 1997 when voters chose by a wide margin in an initiative to approve The Oregon Death with Dignity Act.” Washington also approved physician aid in dying through a voter initiative process. Vermont was the first state to legalize the practice through legislation in 2013, followed by California in 2015. More than 20 other states have tried and failed to establish the patient’s right to die by choice.
It took years and determination to establish the right in New Mexico. Senator Liz Stefanics introduced the first aid in dying legislation (SB 446) in 1995. Amendments to the State’s Uniform Health Care Decisions Act in 1997 established a patient’s ability to provide a “right-to-die” statement or other advance directive expressing the patient’s wishes as to the manner of death. However, the state Supreme Court in 2016, in Morris v. Brandenburg, found that New Mexico’s 1963 statute criminalizing assisting suicide prohibited physician aid in dying.
In the next long, substantive legislative sessions after the Supreme Court decision, Democratic legislators pressed for providing an option in New Mexico law, introducing the End of Life Options Act (HB 171/SB 252) in 2017 and the Elizabeth Whitefield End-of-Life Options Act (HB 80/SB 153) in 2019.
In an open letter supporting the End-of-Life Options Act, medical ethicist Joan Gibson, the founder and long-time director of the UNM Health Sciences Ethics Program, wrote, “Unlike the medical decision-making landscape 75 years ago, the 2021 health care reality is this: There is almost always ‘something more’ that can be done. Decisions to treat or not to treat are everywhere and unavoidable. The overriding question remains: Who should make these decisions? For over 30 years, New Mexicans have answered this question: Medical decisions belong to the patient, or the patient’s designated decision-maker. Treatment decisions must be driven by the patients’ own values, beliefs and assessment of quality of life.”
The End-of-Life Options Act is named after New Mexico judge Elizabeth Whitfield, who died of cancer in 2018 and was a long-time advocate of patient rights. She was among the founders of the New Mexico Woman’s Bar Association. The year she died, Judge Whitfield testified at the New Mexico legislative session in support of an earlier version of the current bill, stating, “Cancer has stolen everything from me: my ability to work, my ability to eat, my ability to drink. Don’t let me die without dignity. I implore you to give me the choice that is right for me.” The legislation did not pass.
The new legislation requires that patients be diagnosed as having a terminal disease that could end their lives within six months before electing the end-of-life options, that they have decision-making capacity, that they are not under any pressure from anyone to choose suicide and that they have “the ability to self-administer the medical aid-in-dying medication.” The patient must also not be suffering from a “mental health disorder.” And they must be able to sign a form labeled “Request for Medication to End My Life in a Peaceful Manner.” Finally, the terminally ill patient must authorize their physician “to contact a willing pharmacist” to fill the prescription for “aid-in-dying medication.” The form must be signed by two witnesses, only one of which may be a family member.