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New Mexico HB47 Poses a Unique Danger in the COVID-19 Pandemic
Jennifer Popik, J.D. | 01 March 2021
New Mexico has become a perennial legislative target of assisted suicide advocates. Despite the alarming rise in mental illness amidst the global COVID-19 pandemic, this year is no different. Deborah Armstrong, who sponsored previous assisted suicide legislation, is again leading the charge. House Bill 47, also known as the Elizabeth Whitefield End-of-Life Options Act, is the latest attempt to legalize the dangerous practice.
Eight states and D.C. now legalize physician-assisted suicide, including California, Colorado, Hawaii, Maine, New Jersey, Oregon, Washington, and Vermont. While not legalizing the practice, a Montana Supreme Court decision found that a physician would be able to raise the defense that the patient consented if sued.
Typically, most states make it a crime to assist in a suicide, but these sorts of laws carve out an exception for a physician to prescribe lethal drugs to end a patient's life if certain criteria are met. HB47 goes a step further than most legalizing states, permitting a wide assortment of health professions to prescribe an early death.
While such laws are promoted as providing an “option” to patients, they create an environment in which assisted suicide may become the cheap and “easy” solution to serious illness, pushing the medically vulnerable into early deaths.
In a bill laden with multiple dangers and scant so-called "safeguards," two issues jump out as particularly troublesome during the current COVID-19 pandemic - mental illness and the definition of a terminal condition.
It is commonplace to hear reported the toll that the pandemic and lockdowns are having on people’s mental health. It is in this environment of understandable feelings of depression, anxiety, and isolation that makes New Mexico HB 47 that much more alarming.
HB 47 does not require a psychiatric evaluation to screen for depression or other mental illness. Even if the patient is showing signs of depression or has a mental illness, there is no requirement to provide counseling to address those conditions. The scant provision of the bill is a simple requirement for referring the patient to a mental health professional to determine if the patient has the "capacity" to understand what they are requesting. This means that in practice, as long as you have the right to make decisions for yourself, you could qualify.
In other states that have legalized assisted suicide, referrals for mental health treatment are rare, and in many years, have been nonexistent. According to the National Council on Disability 2019 report, The Danger of Assisted Suicide Laws, Part of the Bioethics and Disability Series,
Oregon’s statistics show that, for example, in 2017, only 3.5 percent of those who reportedly died under the Oregon law were referred by the prescribing doctor for a psychological evaluation before a prescription for lethal drugs was written. In 2018, it was 1.8 percent. Some other states refer even fewer people. In Colorado, only 1 out of the reported 69 people (1.4 percent) was so referred. [internal citations omitted]
Research is clear that people understandably suffer from depression when faced with a serious illness, and this sort of depression is treatable. Not only are alarming numbers of Americans suffering from mental illness, in part due to the pandemic, but many are forgoing regular healthcare visits.
Assisted suicide proponents have chosen, at this time, to include language that makes it appear that only the terminally ill are eligible for the lethal drugs. The legal definition of “terminal illness” used in New Mexico will sweep in vast groups of people who could otherwise live for many years with continued treatment. What seems like a commonly understood term - terminal illness - actually can be quite complicated.
HB47 defines terminal illness as “a disease or condition that is incurable and irreversible and that, in accordance with reasonable medical judgment, will result in death within six months.”
There are many diseases like diabetes or disabilities requiring breathing assistance that are incurable but treatable. If left untreated, yes, the patient will die. Stated another way, a condition can be incurable and irreversible but can be controllable. Patients can go on to live months and years with ongoing treatment. Further, these are not just potential risks of this legislation, but in fact, diabetes and hepatitis were listed as reasons for prescribing lethal drugs to patients in Oregon.
Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities as it has been dedicated to protecting unborn children from abortion and has always vigorously opposed legalizing assisted suicide. Aside from those voices in the faith and life community, there are many other groups who also fight against dangerous assisted suicide laws.
That said, one of the most critical voices against this sort of legislation is the disability rights community.
From their 2019 report,
The National Council on Disability was an early opponent of the legalization of assisted suicide, having released a forceful, thorough statement in 1997 that the Council later reaffirmed in 2005. The dangers and harms to people with disabilities that NCD identified appear to be as significant today as they were in 1997 and 2005. NCD’s concerns, then and now, stem from the understanding that if assisted suicide is legal, some people’s lives, particularly those of people with disabilities, will be ended without their fully informed and free consent, through mistakes, abuse, insufficient knowledge, and the unjust lack of better options. No safeguards have ever been enacted or proposed that can prevent this outcome. [internal citations omitted]
Amidst a mental healthcare crisis and the risks of pushing vulnerable groups to an early death when they might live months and years with treatment, HB47 is a dangerous recipe for New Mexico.
 The bill is available at: https://www.nmlegis.gov/Sessions/21%20Regular/bills/house/HB0047.pdf.
 Official report for 2016 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2016, ” pg. 11, fn. 2. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf (Last accessed 12/12/17.)
Jennifer Popik, J.D.
Federal Legislative Director; National Right to Life