Morris v. Brandenburg

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _______________ 3 Filing Date: August 11, 2015 4 NO. 33,630 5 KATHERINE MORRIS, M.D., AROOP 6 MANGALIK, M.D., and AJA RIGGS, 7 Plaintiffs-Appellees, 8 v. 9 10 11 12 13 KARI BRANDENBURG, in her official capacity as District Attorney for Bernalillo County, New Mexico, and GARY KING, in his official capacity as Attorney General of the State of New Mexico, Defendants-Appellants. 14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 Nan G. Nash, District Judge 16 Kennedy Kennedy & Ives, LLC 17 Laura Schauer Ives 18 Albuquerque, NM 19 ACLU of New Mexico Foundation 20 Alexandra Freedman Smith 21 Albuquerque, NM 1 Kathryn L. Tucker 2 Ojai, CA 3 for Appellees 4 Hector H. Balderas, Attorney General 5 Scott Fuqua, Assistant Attorney General 6 Santa Fe, NM 7 for Appellants 8 9 10 11 12 Rothstein, Donatelli, Hughes Dahlstrom, Schoenburg & Bienvenu, LLP Kristina Martinez Carolyn M. “Cammie” Nichols Santa Fe, NM 13 for Amicus Curiae The ALS Association New Mexico Chapter 14 Montgomery & Andrews, P.A. 15 Lara Katz 16 Santa Fe, NM 17 18 19 20 for Amicus Curiae Disability Rights Amici: Not Dead Yet, Adapt, American Association of People With Disabilities, Autistic Self Advocacy Network, Disability Rights Education and Defense Fund, National Council on Independent Living, and the United Spinal Association 21 Garcia Ives Nowara, LLC 22 Molly Schmidt Nowara 23 Albuquerque, NM 1 Covington & Burling, LLP 2 Christina G. Kuhn 3 Washington, DC 4 for Amicus Curiae American Medical Women’s Association, American Medical 5 Student Association, and New Mexico Public Health Association 6 Robert Schwartz 7 Albuquerque, NM 8 for Amicus Curiae New Mexico Psychological Association 9 Alliance Defending Freedom 10 Catherine Glenn Foster 11 Washington, DC 12 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 13 Emil J. Kiehne 14 Albuquerque, NM 15 16 17 18 19 for Amicus Curiae State of New Mexico Senators William F. Burt, Mark Moores, Steven P. Neville, William E. Sharer, and Pat Woods; State of New Mexico Representatives Paul C. Bandy, Sharon Clahchischilliage, David M. Gallegos, Jason C. Harper, Yvette Herrell, and James R.J. Strickler; and Christian Medical and Dental Associations 20 21 22 23 Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A. Juan L. Flores Jaime L. Dawes Albuquerque, NM 24 for Amicus Curiae Michael J. Sheehan of the Archdiocese of Santa Fe, Bishop 25 Oscar Cantú of the Diocese of Las Cruces, and Bishop James A. Wall of the 26 Diocese of Gallup 1 OPINION 2 GARCIA, Judge. 3 {1} A New Mexico statute makes “assisting suicide” a fourth degree felony and 4 defines the proscribed conduct as “deliberately aiding another in the taking of his own 5 life.” NMSA 1978, § 30-2-4 (1963). The question presented is whether this statute 6 may constitutionally be applied to criminalize a willing physician’s act of providing 7 a lethal dose of a prescribed medication at the request of a mentally competent, 8 terminally ill patient who wishes a peaceful end of life (aid in dying) as an alternative 9 to one potentially marked by suffering, pain, and/or the loss of autonomy and dignity. 10 The district court concluded that Section 30-2-4 is invalid under two provisions of the 11 New Mexico Constitution as applied to any physician who provides aid in dying to 12 a patient. In reaching its conclusion, the district court determined that aid in dying is 13 a fundamental liberty interest and that the State did not meet its burden to prove that 14 Section 30-2-4 met a strict scrutiny standard of review. We conclude that aid in dying 15 is not a fundamental liberty interest under the New Mexico Constitution. 16 Accordingly, we reverse the district court’s order permanently enjoining the State 17 from enforcing Section 30-2-4. In addition, we affirm the district court’s 18 determination that, for statutory construction purposes, Section 30-2-4 prohibits aid 1 in dying. Finally, I would also remand to the district court for further proceedings 2 regarding the remaining aid in dying claims raised by Plaintiffs, including the entry 3 of findings and conclusions concerning whether Section 30-2-4 meets the 4 intermediate standard of review required for important individual liberty interests 5 under the New Mexico Constitution and/or whether it passes a rational basis standard 6 of review as applied to aid in dying. 7 BACKGROUND 8 {2} Plaintiffs are Dr. Katherine Morris, a surgical oncologist at the University of 9 New Mexico (UNM); Dr. Aroop Mangalik, a UNM physician; and Aja Riggs, a 10 patient who has been diagnosed with uterine cancer.1 In the course of their practices, 11 Drs. Morris and Mangalik provide medical care to mentally competent, terminally ill 12 adults who have expressed interest in what Plaintiffs call “aid in dying,” which the 13 parties define as the “practice of a physician providing a mentally competent[,] 14 terminally ill patient with a prescription for [a lethal dose of] medication which the 15 patient may choose to ingest to achieve a peaceful death and thereby avoid further 16 suffering.” 1 17 Although two Plaintiffs are doctors, the right at issue is asserted to belong to 18 their patients, and doctors are typically deemed to have standing to assert the 19 constitutional rights of their patients. See Singleton v. Wulff, 428 U.S. 106, 108, 117 20 (1976); Doe v. Bolton, 410 U.S. 179, 188 (1973). 3 1 {3} Aid in dying has been legal in Oregon for nearly two decades. Or. Rev. Stat. 2 Ann. §§ 127.800 to .897 (1997, as amended through 2013). Dr. Morris, who 3 previously practiced in Oregon, administered aid in dying at the request of two 4 patients in that state. The practice is also legal in Vermont, see Vt. Stat. Ann. tit. 18, 5 §§ 5281 to 5292 (2013), and Washington, see Wash. Rev. Code Ann. §§ 70.245.10 6 to 70.245.904 (2009), and has been judicially recognized as a valid statutory defense 7 to homicide in Montana, see Baxter v. Montana, 2009 MT 449, ¶ 1, 354 Mont. 234, 8 224 P.3d 1211. The practice is statutorily stated to be illegal in five other states, see 9 Ark. Code Ann. § 5-10-106 (2007) (expressly prohibiting “physician-assisted 10 suicide”); Ga. Code Ann. § 16-5-5(b), (d) (2012) (indicating application to physicians 11 by requiring healthcare providers to notify the licensing board upon conviction); 12 Idaho Code Ann. § 18-4017 (2011) (same); N.D. Cent. Code Ann. § 12.1-16-04 13 (1991) (prohibiting the issuance of prescriptions for the purpose of assisting suicide); 14 R.I. Gen. Laws § 11-60-3 (1996) (prohibiting licensed healthcare practitioners from 15 providing another the physical means to commit suicide), and is potentially prohibited 16 in the majority of remaining jurisdictions by blanket manslaughter statutes similar to 17 Section 30-2-4. See, e.g., Cal. Penal Code § 401 (1905). 4 1 {4} Uncertain about the legality of aid in dying in New Mexico, Drs. Morris and 2 Mangalik filed suit seeking a declaration that they cannot be prosecuted under 3 Section 30-2-4. They alleged that the statute does not apply to aid in dying, and if it 4 does, such application offends provisions of our state constitution, including Article 5 II, Section 4’s guarantee of inherent rights and Article II, Section 18’s Due Process 6 Clause. The district court held a trial on the merits at which several witnesses testified 7 for Plaintiffs. That testimony was uncontroverted and formed the basis for the district 8 court’s findings. The testimony and findings, which remain undisputed, establish the 9 following facts. 10 {5} Quality of life for terminally ill patients varies depending on the specific 11 illness, its manifestations in the patient, and the patient’s physical and psychological 12 reserves. But progressive terminal illness, by definition, interferes with vital 13 functions, such as eating and drinking, breathing, blood flow, and the basic functions 14 of the brain. At any given moment, there are terminally ill patients in New Mexico 15 “who find the suffering from their illness to be unbearable, despite efforts to relieve 16 pain and other distressing symptoms.” Some of those patients find the current options 17 in end-of-life care to be inadequate to relieve their suffering and want the option of 18 aid in dying. The dying process is often extremely difficult for patients with terminal 5 1 illnesses. As a surgical oncologist, Dr. Morris has treated cancer patients with a 2 variety of end-of-life symptoms, such as irremovable “obstruction[s]” that cause the 3 inability to swallow, fluid accumulation that leads to rapid and repeated distention of 4 the abdomen, and swelling of the skin such that it splits open. In some instances, a 5 patient’s suffering is such that doctors induce unconsciousness—the so-called 6 “barbiturate coma”—and then withhold hydration and nutrition until death arrives. 7 As one example, Dr. Morris recalled treating a “really strong” firefighter who was 8 approximately six foot, five inches tall and weighed 280 pounds. His skin cancer led 9 to metastasis of the spine, which left him “sobbing in pain.” All doctors could do to 10 ease his pain “was make him unconscious” by administering “huge doses” of 11 narcotics, muscle relaxants, and sedatives. 12 {6} Dr. Morris testified that sedating people to this level “suppresses their 13 breathing and sometimes ends their li[ves].” The removal of life-sustaining nutrition 14 and hydration also hastens the death of the sedated patient. Experts at trial described 15 the “double-effect” of this practice of terminal (or palliative) sedation, as it is called: 16 Although the physician’s “primary intent”—or more accurately, motive—is to 17 eliminate pain, the physician “inevitably know[s]” that administering such high doses 18 of consciousness-lowering medications—at times, tens or even hundreds of times the 6 1 normal dosage—will lead, in close proximity, to the patient’s death. Palliative 2 sedation is an accepted medical practice and is allowed in New Mexico. See generally 3 NMSA 1978, §§ 24-2D-1 to -6 (1999, as amended through 2012). The same is true 4 for withdrawal of life-sustaining treatment measures. See generally NMSA 1978, §§ 5 24-7A-1 to -18 (1995, as amended through 2009). But these legal options for ending 6 life arise only after the patient potentially endures a period of degeneration. 7 {7} Apart from pain, there are other reasons why a terminally ill patient may choose 8 aid in dying. In Oregon and Washington, where data on aid in dying are required to 9 be kept by statute, see Or. Rev. Stat. Ann. § 127.865; Wash. Rev. Code Ann. § 10 70.245.150, the most commonly cited end-of-life concern among patients who choose 11 to ingest the lethal dose of medication is “loss of autonomy.”2 Patients in both states 12 also frequently report that their illnesses cause a loss of dignity and a loss of the 13 ability to engage in the activities that make life enjoyable. Oregon’s Death With 14 Dignity Act Rep., supra, at 5; Wash. Death With Dignity Act Rep., supra, at 7. Dr. 15 David Pollack, a psychiatrist practicing in Oregon for over forty years, testified at 16 17 18 19 20 21 2 Or. Pub. Health Div., Oregon’s Death with Dignity Act Rep. (2014) available at https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/ DeathwithDignityAct/Documents/Year17.pdf; Wash. State Dep’t of Health, 2013 Death With Dignity Act Rep. Exec. Summary (2014) available at http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109-DeathWithDignityAct 2013.pdf 7 1 trial that patients choose to ingest the lethal dose of medication “to alleviate 2 symptoms, to spare others from the burden of watching them dwindle away or be a 3 shell of their former sel[ves] or to feel like they are in control, [to] have some 4 autonomy and some control over the way that they die.” 5 {8} Plaintiff Aja Riggs, who has been diagnosed with life-threatening uterine 6 cancer, testified that she did not know if she “want[ed] to go all the way to the end” 7 and naturally die if the consequences of her cancer reached the terminal stages: 8 9 10 11 I think one of the images that I had that I didn’t and I don’t want to have happen is that I’m lying in bed in pain, or struggling not to be in pain, or mostly unconscious with everybody that cares about me around me and all of us just waiting for me to die. 12 Ms. Riggs further testified that the legal availability of aid in dying would bring her 13 peace of mind and help her feel that she can make controlled personal choices about 14 her experience with cancer. This sentiment was echoed by Dr. Nicholas Gideonse 15 who specializes in end-of-life care in Oregon: 16 17 18 19 20 21 I’ve had patients who’ve had breast cancer for [twenty years], been through rounds of fighting and succeeding and remission and then not. They know these illnesses well. And . . . if they get the chance to write that final chapter, to at least describe how the story will end on their own terms, it’s a great relief to patients and their families. {9} The trial testimony identified the existence and substance of a standard of care 22 for determining terminality and eligibility for aid in dying in other states, derived 8 1 from the experience with the practice in Oregon, where it has been legal since 1997. 2 In addition, it described a standard of care for determining mental competence, that 3 physicians are trained to apply. The testimony further showed similarities among aid 4 in dying, terminal sedation, and the removal or refusal of life-sustaining treatment, 5 as well as the differences between aid in dying and suicide, including the distinct 6 reasons for these acts. 7 {10} The experience in Oregon has been that a number of patients who have been 8 prescribed aid-in-dying medication never ingest it. According to the trial testimony, 9 the availability of the medication nonetheless provides patients the comfort of 10 knowing that there is a peaceful alternative to being forced to endure unbearable 11 suffering. Still more patients do not request the medication after discussing the option 12 with their physicians. 13 The District Court’s Judgment 14 {11} After trial, the district court found that physicians have provided and continue 15 to provide aid in dying to qualified patients in Oregon, Washington, and Vermont 16 (pursuant to statutory authorization); Montana (pursuant to an opinion of the Montana 17 Supreme Court); and Hawaii (where there is no criminal prohibition). The court also 18 found that, when aid in dying is available, “end[-]of[-]life care for all terminally ill 9 1 patients improves through better pain treatment, earlier and increased referrals to 2 hospice[,] and better dialogues between physicians and their terminally ill patients 3 about end[-]of[-]life care and wishes.” 4 {12} Ultimately, the district court concluded that Section 30-2-4 prohibits aid in 5 dying but that its application to aid in dying violates the inherent-rights guarantee and 6 substantive due process protections afforded by Article II, Section 4 and Article II, 7 Section 18 of the New Mexico Constitution. Citing Washington v. Glucksberg, 521 8 U.S. 702, 725 (1997), the district court acknowledged that the United States Supreme 9 Court “declined to find the right to aid in dying to be . . . protected by the federal 10 Constitution.” The court nevertheless departed from federal precedent established in 11 Glucksberg, noting that New Mexico has inherent power as a separate sovereign in 12 our federalist system to provide more liberty under the New Mexico Constitution than 13 that afforded by the federal Constitution. It then applied the interstitial approach to 14 constitutional analysis mandated by our Supreme Court in such circumstances. See 15 State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. The district court 16 concluded that the inherent rights clause of Article II, Section 4 provides “distinct 17 additions” to the fundamental rights afforded under the federal Constitution and a 18 basis to diverge from federal precedent. 10 1 {13} The district court specifically held that “[a] terminally ill, mentally competent 2 patient has a fundamental right to choose aid in dying pursuant to the New Mexico 3 Constitution’s [Article II, Section 4] guarantee to protect life, liberty, and seeking and 4 obtaining happiness . . . and its substantive due process protections [under Article II, 5 Section 18].” Applying strict scrutiny, the court held that the State had failed to prove 6 that by criminalizing the actions of physicians who provide aid in dying Section 30-27 4 furthers a compelling interest. The district court also ordered that the State be 8 permanently enjoined from prosecuting any physician who provides aid in dying to 9 mentally competent, terminally ill patients who choose to utilize aid in dying. The 10 State timely appealed. 11 ISSUES AND ARGUMENTS ON APPEAL 12 {14} On appeal, the parties have stipulated to the factual record developed in the 13 district court. The State argues that (1) there is no fundamental right to the deliberate 14 assistance of a third-party in ending one’s own life through aid in dying, and (2) the 15 district court’s ruling violates the doctrine of separation of powers by legalizing 16 conduct that is designated to be a crime by the Legislature. In addition to disputing 17 the State’s contentions, Plaintiffs argue that Section 30-2-4 does not prohibit aid in 18 dying. 11 1 DISCUSSION 2 I. Statutory Construction: Section 30-2-4 3 We begin with the text of the statute, which provides, “[A]ssisting suicide {15} 4 consists of deliberately aiding another in the taking of his own life. Whoever commits 5 assisting suicide is guilty of a fourth degree felony.” Section 30-2-4. “Our principal 6 goal in interpreting statutes is to give effect to the Legislature’s intent.” Griego v. 7 Oliver, 2014-NMSC-003, ¶ 20, 316 P.3d 865. To do so, we first look to the language 8 used and the plain meaning of that language. State v. Moya, 2007-NMSC-027, ¶ 6, 9 141 N.M. 817, 161 P.3d 862. “We refrain from further interpretation where the 10 language is clear and unambiguous.” State v. Martinez, 2006-NMCA-068, ¶ 5, 139 11 N.M. 741, 137 P.3d 1195 (internal quotation marks and citation omitted). 12 {16} Plaintiffs contend that the statute does not prohibit aid in dying. Citing Rule 13 12-201(C) NMRA,3 the State protests that this argument is not properly before us 14 because the district court ruled against Plaintiffs on this point and Plaintiffs did not 15 16 17 18 19 20 21 3 Rule 12-201(C) reads: An appellee may, without taking a cross-appeal or filing a docketing statement or statement of the issues, raise issues on appeal for the purpose of enabling the appellate court to affirm, or raise issues for determination only if the appellate court should reverse, in whole or in part, the judgment or order appealed from. 12 1 file a cross appeal. It argues that the doctrine that permits affirmance for any reason 2 supported by the record, see Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 3 536, 994 P.2d 1154, cannot be applied because acceptance of Plaintiffs’ statutory 4 argument would require reversing, not affirming, the district court’s conclusion that 5 Section 30-2-4 prohibits physicians from providing aid in dying. We have held that 6 “an appellee need not cross-appeal to raise an issue that would preserve the judgment 7 below.” Cochrell v. Mitchell, 2003-NMCA-094, ¶ 12, 134 N.M. 180, 75 P.3d 396 8 (alteration, internal quotation marks, and citation omitted). In any event, we cannot 9 address the question presented—whether Section 30-2-4 may constitutionally be 10 applied in the circumstances presented here—without first determining what the 11 statute proscribes. We also must interpret statutes in a manner that avoids, to the 12 extent possible, raising constitutional concerns. Griego, 2014-NMSC-003, ¶ 19. 13 Accordingly, we determine the meaning of Section 30-2-4. 14 {17} The central point of Plaintiffs’ statutory argument is that the Legislature’s use 15 of the term “suicide” in Section 30-2-4 suggests that the statute “clearly contemplates 16 individuals who are not already dying, and nothing suggests it reaches a competent, 17 dying patient’s decision to achieve a peaceful death.” The factual basis for this 18 argument is the uncontested expert testimony of Dr. Pollack, which establishes that 13 1 “suicide is a distinctly different act than requesting aid in dying[.]” According to Dr. 2 Pollack, suicide is a “despairing, lonely experience.” He stated that it is an impulsive 3 act—typically in reaction to psychological isolation, shame, guilt, or 4 misunderstanding by others, and its effect on survivors is devastating. Family 5 members tend to experience shock and disbelief or anger. In contrast, Dr. Pollack 6 noted that those who request aid in dying do so to alleviate symptoms and to maintain 7 relationships, connections, and a sense of self, and recognize that the problem 8 confronting them arises from an irreversible physical calamity. They are already 9 dying, and “[they are] focused on maintaining the quality of life that is something that 10 they cherish.” Dr. Pollack also testified that since the 1990s, increasing numbers of 11 mental health and medical professionals have recognized that the two acts are 12 fundamentally different, and treating physicians reject the idea that patients who have 13 chosen aid in dying were committing suicide. He explained that if these patients could 14 have survived their illnesses, they would have chosen to do so. The State concedes 15 that distinctions between suicide and aid in dying identified in the fields of medicine 16 and psychology are “compelling” but contends that they are “irrelevant from a legal 17 standpoint.” 14 1 {18} As a textual matter, the State is correct. In defining the proscribed 2 conduct—“[a]ssisting suicide”—as “deliberately aiding another in the taking of his 3 own life[,]” the statute necessarily also defines “suicide” as “the taking of [one’s] own 4 life.” Section 30-2-4. This statutory definition of “suicide” binds us. See Cadena v. 5 Bernalillo Cnty. Bd. of Cnty. Comm’rs, 2006-NMCA-036, ¶ 15, 139 N.M. 300, 131 6 P.3d 687 (“As a rule[,] a statutory definition which declares what a term means is 7 binding on the court.” (alteration, internal quotation marks, and citation omitted)). As 8 noted, the parties define “aid in dying” as “the practice of a physician providing a 9 mentally competent[,] terminally ill patient with a prescription for [a lethal dose of 10 an authorized] medication which the patient may choose to ingest to achieve a 11 peaceful death[.]” While not recognized as “suicide” in a growing body of medical 12 and psychological literature, a patient’s choice to “achieve a peaceful death” is still 13 “the taking of [one’s] own life” under the statute’s plain terms. See § 30-2-4. 14 “[A]iding,” in the context of “determining whether one is criminally liable for [his or 15 her] involvement in the suicide of another,” means “providing the means to commit 16 suicide[.]” State v. Sexson, 1994-NMCA-004, ¶ 15, 117 N.M. 113, 869 P.2d 301. Dr. 17 Morris testified at trial that a prescription for aid in dying is typically for the 18 barbiturate Seconal, written for a uniform dose calculated to have lethal effect. This 15 1 conduct, by design, provides a patient the means to take his or her own life and is 2 prohibited by the text of Section 30-2-4. 3 {19} Citing the Uniform Health-Care Decisions Act, §§ 24-7A-1 to -18, as evidence 4 of “New Mexico’s long, proud tradition of public policy promoting autonomy in end5 of-life decision making,” Plaintiffs assert that we may consider the “clear policy 6 implications of various constructions” if a statute is ambiguous. They also cite the 7 Supreme Court of Montana’s decision in Baxter, 2009 MT 449, ¶¶ 26-28, for the 8 proposition that a state’s public policy valuing autonomy in medical decision making 9 can guide courts in determining whether assisted suicide includes aid in dying. But 10 “[s]tatutory language that is clear and unambiguous must be given effect.” V.P. 11 Clarence Co. v. Colgate, 1993-NMSC-022, ¶ 8, 115 N.M. 471, 853 P.2d 722. And, 12 where the language is plain, the court’s task of statutory interpretation ends. Martinez, 13 2006-NMCA-068, ¶ 5. 14 {20} Plaintiffs’ arguments are unavailing in any event. Since enacting Section 30-2- 15 4 in 1963, the Legislature has twice considered “assisted suicide” in the healthcare 16 context. In both the Uniform Health-Care Decisions Act, §§ 24-7A-1 to -18, and the 17 Mental Health Care Treatment Decisions Act, NMSA 1978, §§ 24-7B-1 to -16 (2006, 18 as amended through 2009), the Legislature expressly refused to “authorize . . . 16 1 assisted suicide . . . to the extent prohibited by other statutes of this state.” Sections 2 24-7A-13(C); 24-7B-15(C). We note that the “other statute[ ] of this state” must be 3 a reference to Section 30-2-4. Furthermore, Baxter’s exploration of statutes and 4 precedents for evidence of state policy on medical decision making was expressly 5 called for by the language of a statutory affirmative defense that invalidates the 6 consent defense when “it is against public policy to permit the conduct or the 7 resulting harm, even though consented to.” 2009 MT 449, ¶¶ 11-13 (internal 8 quotation marks and citation omitted). Plaintiffs’ statutory argument fails, and we 9 must address the district court’s ruling that aid in dying is a fundamental liberty 10 interest that is entitled to due process protection under the New Mexico Constitution. 11 II. The New Mexico Constitution 12 Plaintiffs argue that Section 30-2-4’s criminalization of aid in dying violates {21} 13 two provisions of the New Mexico Constitution: the Due Process Clause of Article 14 II, Section 18, which has an analogous provision in the Fourteenth Amendment of the 15 United States Constitution, and the inherent-rights guarantee of Article II, Section 4, 16 which has no enumerated federal constitutional analogue. Although Plaintiffs do not 17 assert a right to aid in dying under federal law, the State’s argument is that there is no 18 such right, and the inquiry continues to be identical to and controlled by the United 17 1 States Supreme Court’s analysis in Glucksberg, 521 U.S. at 728, where it held that 2 “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty 3 interest protected by the [federal] Due Process Clause” and that “Washington’s 4 assisted-suicide ban [is] rationally related to legitimate government interests.” 5 Accordingly, we take cognizance of the necessity for an interstitial approach to 6 constitutional analysis adopted by our Supreme Court in Gomez, 1997-NMSC-006, 7 ¶ 19. Our review of the district court’s interstitial approach is de novo. See Bank of 8 N.Y. v. Romero, 2014-NMSC-007, ¶ 52, 320 P.3d 1 (stating that constitutional 9 interpretation issues are reviewed de novo). 10 A. The Interstitial Approach to Interpreting the New Mexico Constitution 11 Gomez made clear that “states have inherent power as separate sovereigns in {22} 12 our federalist system to provide more liberty than is mandated by the United States 13 Constitution” and that “[w]e are not bound to give the same meaning to the New 14 Mexico Constitution as the United States Supreme Court places upon the United 15 States Constitution, even in construing provisions having wording that is identical, 16 or substantially so, unless such interpretations purport to restrict the liberties 17 guaranteed the entire citizenry under the federal charter.” 1997-NMSC-006, ¶ 17 18 (internal quotation marks and citation omitted). While recognizing that “[f]ederal 18 1 precedent in areas addressed by similar provisions in our state constitutions can be 2 meaningful and instructive[,]” id. ¶ 21 (internal quotation marks and citation omitted), 3 our Supreme Court explained that it had abandoned a “lock-step” approach to 4 interpretation of the New Mexico Constitution and applied an “interstitial [approach], 5 providing broader protection where we have found the federal analysis unpersuasive 6 either because we deemed it flawed . . . or because of undeveloped federal analogs[.]” 7 Id. ¶ 20 (citations omitted). 8 9 10 11 12 13 14 Under the interstitial approach, the court asks first whether the right being asserted is protected under the federal [C]onstitution. If it is, then the state constitutional claim is not reached. If it is not, then the state constitution is examined. A state court adopting this approach may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics. 15 Id. ¶ 19 (citation omitted); see State v. Garcia, 2009-NMSC-046, ¶ 34, 147 N.M. 134, 16 217 P.3d 1032 (rejecting widely criticized United States Supreme Court decision 17 weakening a right “beyond a point which may be countenanced under our state 18 constitution”); State v. Rowell, 2008-NMSC-041, ¶¶ 20-23, 144 N.M. 371, 188 P.3d 19 95 (declining to follow United States Supreme Court decisions criticized in legal 20 literature as “devoid of a reasoned basis in constitutional doctrine”); N.M. Right to 21 Choose/NARAL v. Johnson, 1999-NMSC-005, ¶¶ 28-43, 126 N.M. 788, 975 P.2d 841 19 1 (concluding that distinctive characteristics of the New Mexico Constitution mandated 2 rejection of federal constitutional analysis affording less protection); State v. 3 Gutierrez, 1993-NMSC-062, ¶¶ 32, 50-56, 116 N.M. 431, 863 P.2d 1052 (discussing 4 “a willingness to undertake independent analysis of our state constitutional 5 guarantees when federal law begins to encroach on the sanctity of those guarantees” 6 and rejecting a federal constitutional rule as incompatible with the guarantees of the 7 New Mexico Constitution); State v. Ochoa, 2009-NMCA-002, ¶¶ 12-13, 146 N.M. 8 32, 206 P.3d 143 (rejecting a widely criticized United States Supreme Court decision, 9 finding the federal analysis unpersuasive and incompatible with state constitutional 10 standards). 11 {23} Thus, our analysis of rights afforded by the New Mexico Constitution is not 12 “inextricably tied” to federal constitutional analysis. NARAL, 1999-NMSC-005, ¶ 37; 13 see Gutierrez, 1993-NMSC-062, ¶ 16 (stating that, in interpreting state constitutional 14 guarantees, New Mexico courts may seek guidance from decisions of federal courts 15 without being bound by those decisions). In seeking departure from federal due 16 process precedent, Plaintiffs carried the initial burden to establish that greater due 17 process protections should be recognized under Article II, Section 18 of our New 20 1 Mexico Constitution.4 See Gomez, 1997-NMSC-006, ¶ 22-23; Rule 12-216(A) 2 NMRA. The basis for interpreting greater protections under Article II, Section 18 of 3 the New Mexico Constitution must first be addressed and found to exist by the 4 district court. Gomez, 1997-NMSC-006, ¶ 23. In its findings of fact and conclusions 5 of law, the district court identified the following reasons for greater protection under 6 Article II, Section 18, which we summarize numerically: 7 1. Our Supreme Court has already recognized greater protections under the 8 New Mexico Constitution in “many instances[,]” citing Montoya v. Ulibarri, 20079 NMSC-035, ¶ 22, 142 N.M. 89, 163 P.3d 476 (recognizing that the New Mexico 10 Constitution provides greater rights than those provided in the federal constitution in 11 the areas of double jeopardy, search and seizure, and equal protection). 12 2. Our Supreme Court has recognized that some rights of a “personal nature” 13 are entitled to constitutional protection, such as “the right of parents in the care, 14 custody, and control of their children”; “the freedom of personal choice in matters of 15 family life”; and “the right to family integrity,” citing In re Pamela A.G., 200616 17 18 19 20 21 4 We note that interstitial review in this instance must be utilized to resolve Plaintiffs’ claim that Article II, Section 18 provides New Mexicans with a due process right to aid in dying that was denied under the federal constitution. Regarding Article II, Section 4, no federal analogue exists and our analysis is initially interpretive and it potentially becomes interstitial only if substantive due process recognition is also required to establish Plaintiffs’ proposed interest under Section 4. 21 1 NMSC-019, ¶ 11, 139 N.M. 459, 134 P.3d 746 (recognizing the interest of parents 2 in the care, custody, and control of their children as a fundamental liberty interest); 3 Oldfield v. Benavidez, 1994-NMSC-006, ¶ 14, 116 N.M. 785, 867 P.2d 1167 4 (recognizing the general right to familial integrity as a clearly established 5 constitutional right but noting its parameters are not absolute, unqualified, or clearly 6 established); and Jaramillo v. Jaramillo, 1991-NMSC-101, ¶¶ 15-21, 113 N.M. 57, 7 823 P.2d 299 (addressing the constitutional right to travel in the context of assigning 8 the burden of proof between a relocating custodial parent and the non-custodial 9 parent). 10 3. The protected liberty interest of a terminal patient dealing with imminent 11 death that was identified in Cruzan ex rel. Cruzan v. Director, Missouri Department 12 of Health, 497 U.S. 261, 278-79 (1990), is more closely aligned with the liberty 13 interest in this case and is entitled to protection under Article II, Section 18, despite 14 not being protected under the Due Process Clause of the Fourteenth Amendment in 15 Glucksberg. 16 {24} We note that as part of their interstitial argument, Plaintiffs also asserted that 17 New Mexico has made an enhanced commitment to patient autonomy at the end of 18 life, and Article II, Section 18 should recognize greater protections through the equal 22 1 protection test articulated in Breen v. Carlsbad Municipal Schools, 2005-NMSC-028, 2 ¶ 8, 138 N.M. 331, 120 P.3d 413. This equal protection assertion was not recognized 3 by the district court and was not included in its findings. 4 {25} Prior to any hearings held by the district court, the State moved to dismiss 5 Plaintiffs’ complaint based upon substantially the same governmental interests 6 determined to exist by the United States Supreme Court in Glucksberg. See 521 U.S. 7 at 703-04. While the State does not fully concede application of the interstitial 8 approach suggested by Plaintiffs, the district court’s findings nonetheless identified 9 a basis for establishing greater protections in New Mexico by application of the 10 interstitial approach. First, it held that the distinctive individual interests embodied 11 under Article II, Section 4 are not enumerated as protections within the federal 12 Constitution and these enumerated New Mexico interests have been recognized to 13 support the existence of other inherent rights by our Supreme Court. See Griego, 14 2014-NMSC-003, ¶ 1 (relying upon Article II, Section 4 to identify the inherent rights 15 “enjoyed by all New Mexicans” that must then be legally measured because “it is the 16 responsibility of the courts to interpret and apply the protections of the 17 Constitution”). Second, its findings concerning the experiences in other states where 18 aid in dying is legal support the notion that the federal analysis in Glucksberg may 23 1 be flawed and thus may not constitute an authoritative bar to protection under Article 2 II, Section 18 of the New Mexico Constitution. As a result, current due process 3 analysis could result in a different factual and legal outcome than that of Glucksberg. 4 Having identified Article II, Section 18 as the basis for application of the interstitial 5 approach under the New Mexico Constitution, the district court rejected Glucksberg’s 6 analysis and concluded that greater constitutional protections are provided under the 7 New Mexico Constitution. We review the interstitial analysis employed by the district 8 court as to both constitutional provisions to address whether aid in dying constitutes 9 a liberty interest under either of these two sections of the New Mexico Constitution. 10 B. Aid in Dying as Defined and Applied by the Parties 11 Plaintiffs contend that aid in dying is “fundamental or, at the very least, {26} 12 important under the New Mexico Constitution.” On appeal, Plaintiffs identify the 13 fundamental rights implicated in aid in dying as (1) the “right to autonomous medical 14 decision making” and (2) the right to “a dignified, peaceful death.” The district court 15 agreed that aid in dying is a fundamental liberty interest protected by the New Mexico 16 Constitution. Constitutional interpretation is an issue of law we review de novo. State 17 v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830. In doing so, we must consider the 18 claimed constitutional interest in the context in which the allegedly protected conduct 24 1 takes place. Additionally, we emphasize at the outset that the interest asserted here 2 applies only to a narrowly defined class of New Mexico citizens. 3 {27} Plaintiffs do not argue that there is a broad, categorical constitutional right to 4 commit suicide that includes a right to third-party assistance in doing so. Rather, 5 Plaintiffs precisely and narrowly define their claimed liberty interest as one that does 6 not apply to any large classification of citizens. We understand Plaintiffs’ assertion 7 to be that this narrowly defined interest is only fundamental where: (1) a mentally 8 competent patient is capable of giving consent, (2) the patient is diagnosed as 9 terminally ill, (3) the patient requests a prescription for medication that may be 10 ingested to bring about an immediate end to his/her life, and (4) a willing physician 11 applying the proper standard of care determines that it would be appropriate to 12 provide and prescribes the terminal dose of medication for the patient to ingest and 13 end the patient’s life. 14 {28} The State concedes that citizens have a right to make their own end-of-life 15 decisions and to bring about their own deaths without the aid or assistance of another 16 person. There is also no dispute that a physician may lawfully act pursuant to statute 17 to support a patient’s desire to shorten the dying process by removing life-sustaining 18 nutrition, hydration, or mechanical life support, and by administering palliative 25 1 sedation (high doses of consciousness-lowering medications). See generally §§ 242 2D-1 to -6; 24-7A-1 to -18. At oral argument, the State even suggested that patients 3 may bring about the end of their own lives by stockpiling morphine lawfully 4 prescribed by a physician and ultimately ingesting a lethal dosage. According to the 5 State, this act does not involve the statutorily defined aid or assistance of another 6 person under Section 30-2-4, even though it involves a physician’s act of prescribing 7 the medication used by the patient to cause his/her own death. The State also “readily 8 concede[d]” that, except for the acts of aiding or assisting a person in taking his or 9 her own life, it had no interest in causing mentally competent, terminally ill patients 10 to suffer during the final days of their lives. 11 C. 12 Aid in Dying Is Not a Fundamental Liberty Interest Protected by the Due Process Clause of the New Mexico Constitution 13 The Due Process Clause of the New Mexico Constitution provides that “[n]o {29} 14 person shall be deprived of life, liberty or property without due process of law[.]” 15 N.M. Const. art. II, § 18. The federal Due Process Clause similarly provides that no 16 state “shall . . . deprive any person of life, liberty, or property, without due process 17 of law[.]” U.S. Const. amend. XIV, § 1. Because the State’s due process argument 18 relies primarily on Glucksberg, the principal federal case interpreting the liberty 19 interest described here as aid in dying, we shall address its application to our decision 26 1 even though it does not bind our interpretation under Article II, Section 18, or curtail 2 the potential for broader protections under the New Mexico Constitution. See Gomez, 3 1997-NMSC-006, ¶ 19. We also address the narrow scope of Plaintiffs’ proposed 4 liberty interest and its relationship to the interests of life, liberty, and happiness that 5 are enumerated protections within Article II, Section 4. 6 1. The Federal Analysis of Due Process and Glucksberg 7 In Glucksberg, the United States Supreme Court confirmed that the substantive {30} 8 component of the Due Process Clause under the Fourteenth Amendment protects 9 certain aspects of personal autonomy as fundamental rights notwithstanding that they 10 are not mentioned in the text of the Bill of Rights. Glucksberg, 521 U.S. at 720-21; 11 see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (explaining 12 that the United States Supreme Court has never accepted the view that “liberty 13 encompasses no more than those rights already guaranteed to the individual against 14 [governmental] interference by the express provisions of the first eight [a]mendments 15 to the Constitution”). The Court stated that the government may not interfere with 16 certain liberty interests unless the government meets its burden under a strict scrutiny 17 standard—proving that the infringing statute is narrowly tailored to serve a 18 compelling governmental interest. Glucksberg, 521 U.S. at 721. In Glucksberg, four 27 1 physicians, three terminally ill patients, and one nonprofit organization filed suit 2 against the State of Washington, seeking a declaration that the state’s ban on assisting 3 suicide was unconstitutional. 521 U.S. at 707-08. Under the Due Process Clause of 4 the Fourteenth Amendment, the plaintiffs asserted a liberty interest to allow a 5 mentally competent, terminally ill adult the right to choose physician-assisted suicide 6 as a method to end life. Id. The United States Supreme Court unanimously determined 7 that “the asserted ‘right’ ” to physician-assisted suicide is not a liberty interest entitled 8 to any type of protection under the Due Process Clause of the Fourteenth 9 Amendment. Id. at 728, 735 (precluding its recognition as a constitutionally protected 10 due process liberty interest because of society’s nearly universal efforts to prevent 11 suicide and assisted suicide and due to the importance of the state’s interest in 12 regulating both the real and potentially adverse consequences of assisted suicide). 13 {31} Fundamental constitutional rights are enumerated and “specific freedoms 14 protected by the Bill of Rights,” id. at 720, or those later identified by process of the 15 United States Supreme Court’s enforcement of equality and liberty guaranteed by the 16 Fifth and Fourteenth Amendments. See Lawrence v. Texas, 539 U.S. 558, 575 (2003) 17 (“Equality of treatment and the due process right to demand respect for conduct 18 protected by the substantive guarantee of liberty are linked in important respects[.]”). 28 1 While constitutional interpretation must address “new dimensions of freedom” over 2 time, see Obergefell v. Hodges, __ U.S. __, 135 S. Ct. 2584, 2596 (2015), the sum of 3 such rights remains principally static because, in the words of the fourth Chief Justice 4 of the United States Supreme Court, John Marshall, “we must never forget, that it is 5 a constitution we are expounding.” M’Culloch v. Maryland, 17 U.S. 316, 407 (1819). 6 Constitutions, including our New Mexico Constitution, are sacred because they were 7 written to apply in perpetuity. See Republican Party of N.M. v. N.M. Taxation & 8 Revenue Dep’t, 2012-NMSC-026, ¶ 52, 283 P.3d 853 (“The constitution is the heart, 9 the soul, the genius of our system of government, and its safeguarding is [our New 10 Mexico Supreme] Court’s highest duty and most sacred function.” (internal quotation 11 marks and citation omitted)). “The doctrine of judicial self-restraint requires us to 12 exercise the utmost care whenever we are asked to break new ground in [the] field [of 13 substantive due process.]” Collins v. Harker Heights, 503 U.S. 115, 125 (1992); see 14 also Log Cabin Republicans v. United States, 658 F.3d 1162, 1170 (9th Cir. 2011) 15 (“[W]hen confronted with assertions of new fundamental rights, rather than invite 16 innovation the [c]ourt has counseled caution.”). Plaintiffs’ assertion of a new form of 17 constitutional right, one that protects a terminally ill patient’s interest in death and the 29 1 process of dying, is the type of new dimension that warrants such a careful exercise 2 of judicial caution. 3 {32} The constitutional question here—whether aid in dying is a constitutional right, 4 fundamental or otherwise—has only been directly answered by one case, Glucksberg. 5 Nearly twenty years have passed since Glucksberg concluded that a physician’s 6 “assistance in committing suicide is not a fundamental liberty interest protected by 7 the Due Process Clause” of the Fourteenth Amendment. 521 U.S. at 728. Despite its 8 share of criticism over the years, see Dissenting Op. ¶¶ 98-99, no court, federal or 9 state, has held that the concept of death, including a method of a more dignified 10 premature death with the assistance of another person, is rooted within the protections 11 of bodily integrity under the constitution. 12 {33} Glucksberg both recognized and relied upon “over 700 years [of] Anglo- 13 American common-law tradition [that] has punished or otherwise disapproved of both 14 suicide and assisting suicide.” 521 U.S. at 711. Glucksberg’s determination that there 15 exists no precipitate constitutional alleyway to the permanent nationwide legality of 16 physician-assisted suicide also stated its awareness of “serious, thoughtful 17 examinations” regarding aid in dying in various states. Id. at 719. It concluded by 18 permitting “earnest and profound debate about the morality, legality, and practicality 30 1 of [aid in dying] . . . to continue, as it should in a democratic society.” Id. at 735; see 2 id. at 737 (O’Connor, J. concurring) (“There is no reason to think the democratic 3 process will not strike the proper balance between the interests of terminally ill, 4 mentally competent individuals . . . and the [s]tate’s interests in protecting those who 5 might seek to end life mistakenly or under pressure.”); id. at 789 (Souter, J., 6 concurring) (cautioning against “displace[ment of] the legislative ordering of 7 things”). Confirming that it meant what it held in Glucksberg, eight years later, the 8 Supreme Court rejected executive action undertaken by the United States Department 9 of Justice to apply the Controlled Substances Act to disallow physicians from 10 prescribing fatal narcotics as authorized by Oregon’s Death With Dignity Act.5 See 11 Gonzales v. Oregon, 546 U.S. 243 (2006). Obergefell also recently mentioned the 12 Glucksberg decision that has allowed the states to undertake nearly twenty years of 13 14 15 16 17 18 19 20 21 22 5 See Or. Rev. Stat. Ann. §§ 127.800 to .897. Despite the Supreme Court’s invitation to utilize the democratic process to allow aid in dying in 1997, only three states have presently enacted such enabling legislation. Significantly, at least thirteen other states—Alaska, California, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, Missouri, Nevada, Utah, Wisconsin, and Wyoming—have rejected aid in dying by referendum or have failed to pass aid in dying legislation through each state’s legislative process. See Patients Rights Council, available at http://www.patientsrightscouncil.org/site/assisted-suicide-the-continuing-debate/ (last visited July 10, 2015) (tracking ballot initiatives and legislation regarding aid in dying). 31 1 independent experimentation to properly balance the varying interests of the 2 terminally ill. Obergefell, __ U.S. at __, 135 S. Ct. at 2596. 3 {34} Before addressing Plaintiffs’ due process claim under Article II, Section 18, we 4 are compelled to address the methodologies applied when litigants pursue due process 5 interests they believe to be implied by the words chosen by the founders of our nation 6 and its states. Prior opinions have expressed the legally analytic, yet structurally 7 ideologic, tug-of-war that exists within courthouses across the nation, including the 8 United States Supreme Court itself. Compare Glucksberg, 521 U.S. at 720-21 9 (weighing the constitutional stature of an asserted right by direct review of “this 10 Nation’s history and tradition” (internal quotation marks and citation omitted)), with 11 Lawrence, 539 U.S. at 572 (“History and tradition are the starting point but not in all 12 cases the ending point of the substantive due process inquiry.” (alteration, internal 13 quotation marks, and citation omitted)), and Obergefell, __ U.S. at __, 135 S. Ct. at 14 2598 (“History and tradition guide and discipline this inquiry but do not set its outer 15 boundaries. That method respects our history and learns from it without allowing the 16 past alone to rule the present.”(citation omitted)). Yet in this instance, any 17 philosophical attempt to resolve that bigger constitutional picture serves only to 18 distract our focus from the real issues to be considered. The fact that Glucksberg’s 32 1 analytic methodology has been questioned by some legal scholars does not mean the 2 opposite of its holding must be true. More critically for our purposes, Glucksberg 3 provided a substantive due process answer to a factually identical scenario that has 4 never been rejected by any state appellate court. The issue before us is not whether 5 Glucksberg is one of several available constitutionally interpretive “guideposts for 6 responsible decision[]making,” Collins, 503 U.S. at 125; rather, it remains the only 7 existing precedent regarding the nearly identical constitutional question that is posed 8 in this case. In order to justify a departure from Glucksberg, Plaintiffs must have 9 shown precisely why greater fundamental due process protections exist under Article 10 II, Section 4. 11 {35} Obergefell suggests that the assisted suicide analysis in Glucksberg remains 12 unchanged. See Obergefell, __ U.S. at __, 135 S. Ct. at 2602. The Obergefell majority 13 briefly addressed aid in dying and distinguished that asserted right of physician 14 assisted suicide from the asserted interest in marriage that was before it. Id. In 15 Obergefell, every member of the United States Supreme Court, including those 16 justices that the Dissenting Opinion identifies to embrace a more evolving due 17 process concept of constitutional analysis and the developed interests in autonomy 18 of self, passed upon an opportunity to question the majority’s reference to the 33 1 outcome in Glucksberg or cast aspersion upon the analysis of aid in dying that was 2 utilized in Glucksberg. Obergefell, __ U.S. at __, 135 S. Ct. at 2602. See Dissenting 3 Op. at ¶¶ 96 & 100. Specifically, while Obergefell recognized the re-ordering of 4 evaluative constitutional criteria in similar due process cases, it provided a specific 5 reference of approval and a brief defense of Glucksberg by stating that the “central 6 reference to historical . . . practices . . . may have been appropriate for . . . (physician7 assisted suicide), [yet not for] other fundamental rights, including marriage and 8 intimacy.” Obergefell, __ U.S. at __, 135 S. Ct. at 2602. Although the United States 9 Supreme Court appears engaged in an effort to integrate its constitutional 10 jurisprudence, including Glucksberg, see Obergefell, __ U.S. at __, 135 S. Ct. at 11 2602, it is our view that we should continue to be very careful when considering new 12 constitutional interests and remain reluctant to deviate from United States Supreme 13 Court determinations of what are, and what are not, fundamental constitutional rights. 14 {36} Irrespective of the new interpretive dimensions applied by the United States 15 Supreme Court to address differing applications of due process, the substantive 16 fundamental rights that are recognized to exist under the Due Process Clause of the 17 Fourteenth Amendment have always originated from classic personal interactions or 18 embedded principles in our democratic society. These protections include the 34 1 longstanding interests in marriage, see Loving v. Virginia, 388 U.S. 1 (1967); sexual 2 relationships, see Lawrence, 539 U.S. 558; family integrity, see Skinner v. Oklahoma 3 ex rel. Williamson, 316 U.S. 535 (1942); child rearing, see Pierce v. Soc’y of Sisters, 4 268 U.S. 510 (1925); education of one’s children, see Meyers v. Nebraska, 262 U.S. 5 390 (1923); and bodily integrity, see Rochin v. California, 342 U.S. 165 (1952). 6 Plaintiffs have failed to provide any authority to support the position that “death” or 7 “aid in dying” in New Mexico have either been recognized as embedded principles 8 within our democratic society or as a modern interpretation of certain fundamental 9 interests that have been applied to some members of society but historically denied 10 to others. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 11 1329 (“We assume where arguments in briefs are unsupported by cited authority, 12 counsel after diligent search, was unable to find any supporting authority.”); see also 13 John B. Mitchell, My Father, John Locke, &Assisted Suicide: The Real Constitutional 14 Right, 3 Ind. Health L. Rev. 45, 59 (2006) (evaluating the various attempts at 15 articulating the fundamental right at issue in Glucksberg and illustrating the difficulty 16 in identifying the right’s contours, while further suggesting that “it would probably 17 be fairer to the proponents of [physician-assisted suicide] in the Glucksberg [c]ourt 18 to equate the phrase dying with dignity with a [substitute phrase,] rejection of bad 35 1 death”). For example, Cruzan has been offered by Plaintiffs to identify an equivalent 2 liberty interest to aid in dying. 497 U.S. 261. But the constitutionally protected right 3 assumed to exist in Cruzan, 497 U.S. at 279—the right to refuse medical treatment, 4 including lifesaving hydration and nutrition—was clearly distinguished and 5 specifically rejected as an equivalent interest to aid in dying. Glucksberg, 521 U.S. 6 at 722-23, 730-31. In addition, the modern concerns associated with aid in 7 dying—regarding issues of pain, suffering, dignity, and autonomy during the final 8 days of a person’s life—are medical circumstances that have only garnered growing 9 consideration in modern society due to the longevity, pain management, and life10 sustaining advancements that have been made more recently by the medical 11 profession. See Cruzan, 497 U.S. at 270. As discussed in more detail below, we are 12 also troubled that Plaintiffs and their witnesses have narrowed the focus of an 13 autonomous and dignified death to one that favors only a very narrow segment of the 14 population—only those New Mexicans who are competent, terminally ill, and under 15 the care of a physician. 16 {37} Aid in dying, the medical concept of dying with autonomy and dignity, is a 17 relatively recent human phenomena and deserves appropriate public evaluation and 18 consideration. However, as a new legal consideration, it must also be carefully 36 1 weighed against longstanding societal principles such as preventing a person from 2 taking the life of another; preventing suicide; preventing assisted suicide; promoting 3 the integrity, healing, and life preserving principles of the medical profession; 4 protecting vulnerable groups from unwanted pressure to considering aid in dying as 5 the best alternative to other medical options; and promoting human life where aid in 6 dying is not the appropriate medical option despite a patient’s request for its use. See 7 Glucksberg, 521 U.S. at 703-04; see also Cruzan, 497 U.S. at 270-71. The recent 8 advances in life-prolonging medical care and the public acceptance of aid in dying 9 in some states has not diminished the other longstanding societal principles and 10 concerns regarding intentional killing, the dying process, the preservation of life, and 11 the basic life saving principles embedded in the medical profession. Cruzan, 497 U.S. 12 at 280 (“As a general matter, the [s]tates—indeed, all civilized nations—demonstrate 13 their commitment to life by treating homicide as a serious crime. Moreover, the 14 majority of [s]tates in this country have laws imposing criminal penalties on one who 15 assists another to commit suicide.”). Plaintiffs’ witnesses established that certain 16 benefits have been clinically shown to exist and that several of society’s concerns 17 have not materialized when careful regulations and safeguards are imposed upon aid 18 in dying by the medical profession and state legislatures. Yet, even where statutory 37 1 approval has been achieved, improper application of the statutory protections that 2 allow aid in dying will still expose an offending physician or other responsible parties 3 to criminal liability if they fail to comply with the statutes’ narrow parameters. See 4 Or. Rev. Stat. Ann. § 127.890; Vt. Stat. Ann. tit. 18, § 5283(b); Wash. Rev. Code 5 Ann. § 70.254.200. As a result, aid in dying is still in the process of being tested by 6 society and the various states where it has been sanctioned. Presently, aid in dying is 7 best described as a legal and societal work in progress. To assert that it has now risen 8 to the level of a fundamental due process right, requiring strict constitutional 9 protection from society’s longstanding interest in the protection of life through its 10 final stages, has not been established by this record or by other jurisprudence. 11 {38} Lastly, regarding the constitutional stature of aid in dying, the ultimate arbiter 12 of the meaning of the New Mexico Constitution is our New Mexico Supreme Court. 13 See State v. ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 792 (1976), 14 overruled on other grounds by State v. Rondeau, 89 N.M. 408, 412, 553 P.2d 688, 15 692 (1976) (recognizing that “as the ultimate arbiters of the law of New Mexico[,] 16 [our Supreme Court is] not bound to give the same meaning to the New Mexico 17 Constitution as the United States Supreme Court places upon the United States 18 Constitution”). We have previously recognized that under circumstances where it 38 1 appears “that an uncertain state of law should not exist and because avoidance of the 2 same involves an issue of substantial public interest, the matters raised on appeal 3 should be resolved by the Supreme Court.” Archibeque v. Homrich, 1975-NMCA4 023, ¶ 5, 87 N.M. 265, 531 P.2d 1238 (per curiam). Such a constitutional shift from 5 the United States Supreme Court decision in Glucksberg, one that was recently 6 referenced anew in Obergefell, should be addressed by our state’s highest court. See 7 Archibeque, 1975-NMCA-023, ¶ 5; see also Quill v. Vacco, 80 F.3d 716, 725 (2d Cir. 8 1996) (“We . . . decline the plaintiffs’ invitation to identify a new fundamental right 9 [to physician-assisted suicide], in the absence of a clear direction from the Court 10 whose precedents we are bound to follow. The limited room for expansion of 11 substantive due process rights and the reasons therefor have been clearly stated[.] . . . 12 Our position in the judicial hierarchy constrains us to be even more reluctant than the 13 [United States Supreme] Court to undertake an expansive approach in this 14 unchartered area.” (internal quotation marks and citation omitted)), rev’d on other 15 grounds, Vacco v. Quill, 521 U.S. 793 (1997) (internal quotation marks and citation 16 omitted)). Similar to our New Mexico Supreme Court, we are not heedless to changes 17 occurring over time but are careful to expand constitutional interpretations of the law 18 to satisfy our own concepts of right or wrong. See State v. Pace, 1969-NMSC-055, 39 1 ¶ 23, 80 N.M. 364, 456 P.2d 197 (“We are not heedless of the plea that this is a more 2 enlightened day than were those of years gone by, and that views of what is and what 3 is not right have changed with the passage of time. However, we perceive our 4 responsibility as being confined to interpreting the law as we understand it, not to 5 making of new law to satisfy our conceptions of right or wrong.”). From the 6 perspective of constitutional interpretation, Glucksberg’s holding still provides this 7 Court with principled authority. Given our analysis, and consistent with Glucksberg, 8 we conclude that there is no fundamental right to aid in dying under Article II, 9 Section 18 of the New Mexico Constitution. Therefore, interstitial departure to 10 declare such a right would be inappropriate. See Gomez, 1997-NMSC-006, ¶ 19 11 (allowing interstitial identification of a right when existing federal precedent is 12 flawed). 13 2. Inherent Rights Under Article II, Section 4 14 Article II, Section 4 specifically identifies three broad categories of individual {39} 15 interests that are entitled to constitutional protection in New Mexico—life, liberty, 16 and happiness. However, Article II, Section 4 has been sparsely interpreted. See Reed 17 v. State ex rel. Ortiz, 1997-NMSC-055, ¶ 105, 124 N.M. 129, 947 P.2d 86 18 (recognizing that “[o]ur courts have not fully defined the scope of this constitutional 40 1 provision”), rev’d sub nom. on other grounds by N.M. ex rel. Ortiz v. Reed, 524 U.S. 2 151 (1998). The Oxford English Dictionary defines “life” as “[t]he condition or 3 attribute of living or being alive; animate existence. Opposed to death.” 8 Oxford 4 English Dictionary 910 (2d ed. 1989, reprinted with corrections 1991). Plaintiffs ask 5 us to interpret Article II, Section 4’s express protections of liberty and happiness as 6 encompassing an implied inherent right to oppose the protected principle of life by 7 constitutionally allowing third-party physicians to intentionally hasten another 8 person’s death. We decline to recognize Article II, Section 4 as protecting a 9 fundamental interest in hastening another person’s death because such an interest is 10 diametrically “[o]pposed” to the express interest in protecting life. 8 Oxford English 11 Dictionary, supra, at 910. 12 {40} At its core, aid in dying challenges the longstanding and historic interest in the 13 protection of life until its natural end as well as the equally longstanding prohibition 14 against assisting another in hastening that process. See Glucksberg, 521 U.S. at 71015 16 (observing that our nation’s historical approach has been to disallow assisting 16 another person in the taking of his/ her own life regardless of the circumstances). This 17 treasured right to life is not only considered sacred under the common law but is also 18 recognized as an inalienable right, even for those condemned to death. See id. at 714- 41 1 15 (citing Martin v. Commw., 37 S.E.2d 43, at 47 (Va.1946) (“‘The right to life and 2 to personal security is not only sacred in the estimation of the common law, but it is 3 inalienable.’”) and Blackburn v. State, 23 Ohio St. 146, 163 (1872) (“‘[E]ven the lives 4 of criminals condemned to death, [are] under the protection of the law[.]’”), overruled 5 in part on other grounds by State v. Staten, 247 N.E.2d 293 (Ohio 1969)). Assisting 6 a condemned criminal in taking his/her own life has also been subjected to 7 punishment. Commw. v. Bowen, 13 Mass. 356 (1816). The inalienable right that 8 defends life is also a prioritized constitutional interest in New Mexico. See Reed, 9 1997-NMSC-055, ¶ 103 (“When a person’s life is jeopardized by the actions of the 10 state without due process, no constitutional interest is of greater consequence. . . . 11 The transgression is not only against a single human being but also the most basic 12 principles upon which our system of government was founded.” (emphasis added) 13 (citation omitted)); Trujillo v. Prince, 1938-NMSC-024, ¶ 15, 42 N.M. 337, 78 P.2d 14 145 (1938) (“The [c]onstitution and statute, allowing compensation for life lost 15 through negligence of another, adopt a policy touching the most important subject of 16 all government, in which it is recognized that human life should be protected as well 17 from negligence as from crime. . . . It could scarcely be said that a man has any 18 greater right in his own life now than he had before the adoption of the constitutional 42 1 provision and statutes of a kindred nature. His right originally was above all others, 2 save where it is forfeited for crime.” (emphasis added) (internal quotation marks and 3 citation omitted)). Although the dissent concedes, in general terms, that the 4 government has a compelling and substantial constitutional interest in preserving life, 5 it then concludes that this expressly prioritized constitutional interest in life was not 6 adequately articulated by the State to address the needs of New Mexicans dying from 7 terminal illness and, as a result, effectively disappears upon a medical determination 8 of terminal illness. See Dissent ¶¶ 112-114, 117, 121 & 127. 9 {41} We understand Plaintiffs to assert that the process of dying during the final 10 stages of life, defined as a terminally ill patient with six months or less to live, is now 11 an accepted constitutional priority that falls within an intimate zone of privacy and 12 that contemporary generations view aid in dying as a fundamental constitutional 13 interest that deserves strict protection from governmental intrusion. However, death 14 and the process of dying are not rights expressly enumerated within Article II, Section 15 4 and can only qualify as inferences that might exist within the categories of liberty 16 or happiness. Plaintiffs cite no American case law that interprets the interests of 17 constitutional liberty and happiness as extending protection to a third-party that 18 assists another with intentionally taking his or her own life. See In re Adoption of 43 1 Doe, 1984-NMSC-024, ¶ 2 (“We assume where arguments in briefs are unsupported 2 by cited authority, counsel after diligent search, was unable to find any supporting 3 authority.”). The leap from a general societal concern about pain, suffering, and/or 4 loss of autonomy and dignity during the final months of a terminally ill person’s life 5 into the creation of an Article II, Section 4 fundamental constitutional right to protect 6 physicians who practice aid in dying is unprecedented. See Pace, 1969-NMSC-055, 7 ¶ 23 (recognizing the need for judicial restraint when society may have changed over 8 time and adhering to the preference for deferring to the legislative process for legal 9 changes to keep “our existing laws in step with current thinking”). The Dissenting 10 Opinion’s analysis of how this Court should achieve the creation of this new 11 fundamental interest under the New Mexico Constitution is also vague. See Dissent 12 ¶¶ 110-114. 13 {42} The Dissenting Opinion appears to argue that a new constitutionally recognized 14 event now occurs upon the diagnosis of terminal illness. Id. First, a patient’s right to 15 privacy automatically creates an inferred end-of-life liberty interest under Article II, 16 Section 4 in the event of terminal illness. Id. Next, this new liberty interest ascends 17 to constitutional priority over life itself. Id. Ultimately, the Dissenting Opinion 18 harshly criticizes the majority for failing to agree with this new constitutional result. 44 1 Id. at ¶ 114. It then extends this criticism by asserting that the majority is cavalier 2 about the needs of the terminally ill, to the point it asserts that the majority is 3 shockingly disrespectful to both physicians and the terminally ill. Id. References of 4 ignorance, disrespect, or miscreance leveled at one’s colleagues by the Dissenting 5 Opinion are improper and unnecessarily harmful to our judicial process. See id. 6 {43} We are not persuaded by Plaintiffs’ position that a modern desire to hasten 7 death under the rubric of medical privacy can be inferred to take priority over the 8 express fundamental interest in life set forth in Article II, Section 4. Medical privacy 9 has never been constitutionally extended to such a high constitutional level, 10 especially when “[i]t cannot be disputed that the Due Process Clause protects an 11 interest in life.” Cruzan, 497 U.S. at 281. Any development of the importance that 12 society may eventually attribute to dying with autonomy and dignity remains 13 inferential and secondary to life under the enumerated language set forth in Article 14 II, Section 4 as well as our New Mexico precedent. See Reed, 1997-NMSC-055, 15 ¶ 103; Trujillo, 1938-NMSC-024, ¶ 15. Again, there is no basis under the Gomez 16 factors to permit the creation of an interstitial constitutional right under Article II, 17 Section 4 of the New Mexico Constitution. See Gomez, 1997-NMSC-006, ¶ 19. 18 3. The Exclusionary Defects in Plaintiffs’ Proposed Right to Aid in Dying 45 1 {44} Article II, Section 4 declares that “All persons . . . have certain natural, inherent 2 and inalienable rights” entitled to protection. N.M. Const. art. II, § 4 (Emphasis 3 added). In arguing that the genesis of aid in dying is rooted in Article II, Section 4, 4 Plaintiffs identify two categories of bodily integrity as the basis for fundamental 5 constitutional protection: (1) the “right to autonomous medical decision making” and 6 (2) the right to “a dignified, peaceful death.” But the fundamental constitutional 7 protection being sought by Plaintiffs is not a right of autonomy or dignity shared or 8 uniformly applied to all New Mexico citizens; it is a narrow interest only favoring 9 certain patients who meet very specific criteria during their final days of 10 life—competence, terminal illness, physical ability to take and swallow a pill, and 11 who are under the current care and supervision of a physician who prescribes the 12 lethal dosage of medication. Aid in dying also provides a very narrow benefit from 13 prosecution that exclusively favors physicians. Despite repeatedly referring to aid in 14 dying as the liberty interest of “all New Mexicans,” the Dissenting Opinion ultimately 15 concedes that it is a narrowly defined right and its narrowly tailored application is the 16 “question at the heart of this case.” See Dissenting Opinion ¶¶ 73, 133, 135 & 148. 17 {45} Plaintiffs’ experts testified that in Oregon and Washington, patients who have 18 ingested the medication are overwhelmingly white, married, college-educated, 46 1 insured, receiving hospice services, and dying of cancer or ALS. See Or. Pub. Health 2 Div., Oregon’s Death with Dignity Act Rep., at 4; Wash. State Dep’t of Health, 2013 3 Death With Dignity Act Rep., at 1(2014). Plaintiffs do not assert that the same 4 fundamental right exists for the remainder of New Mexicans who cannot meet the 5 narrow definition for aid in dying. In addition, they do not claim that these excluded 6 New Mexicans do not equally suffer from the same symptoms during the final six 7 months of their lives—extreme pain, loss of autonomy, and loss of dignity, despite 8 an absence of terminal illness. Under Plaintiffs’ theory of substantive due process, the 9 remainder of our citizens enduring the similar excruciating and unbearable symptoms 10 are not entitled to equal constitutional protection. This theory would exclude the 11 availability of aid in dying for all terminal patients suffering from a variety of 12 disorders affecting their mental competence such as mental illness, dementia, or 13 Alzheimer’s disease. It would also exclude all patients suffering from non-terminal 14 diseases or other medical conditions that are also causing extreme pain, indignity, and 15 loss of autonomy during the final six months of their lives, such as multiple sclerosis 16 and Parkinson’s disease. See Mitchell, supra, at 60-61 (recognizing that a 17 fundamental right to aid in dying may not be exercised by “people who are incapable 18 of picking up . . . and/or swallowing the pills [by] themselves[,]” or by those “patients 47 1 suffering as the result of massive injuries or those inflicted with a wasting disease[,]” 2 and noting that such patients “[may] be in a far worse position than those with 3 terminal illness, e.g. six months or a year to live” because “[t]he suffering of non4 terminal patients can go on and on, while, for the terminally ill, the end is in sight”). 5 {46} Furthermore, Plaintiffs’ narrowly defined asserted right to aid in dying would 6 provide constitutional immunity from criminal prosecution to only physicians and no 7 one else. For example, the asserted right would not protect a non-physician from 8 criminal prosecution under Section 30-2-4 under a circumstance in which a patient 9 who qualifies for aid in dying seeks assistance from a loved one in addition to or 10 instead of a physician in achieving a peaceful and dignified death. This exclusionary 11 benefit applying only to physicians further exposes the constitutional inadequacy of 12 Plaintiffs’ asserted right. Just as a fundamental right is one that exists for all citizens, 13 any immunity from prosecution of third parties that springs from such a right, under 14 properly applied principles of equal protection, must exist for all citizens who assist 15 in carrying out a patient’s constitutional right to hasten death. See N.M. Const. art. 16 II, § 4; see also Gentry v. Shug, 2012-NMCA-019, ¶ 8, 270 P.3d 1286 (“An equal 17 protection claim arises when a state actor treats similarly situated groups or persons 18 differently.”). We decline to conclude that a fundamental right exists where it would 48 1 protect only one class of citizens from criminal prosecution to the exclusion of all 2 others. 3 {47} Under Article II, Section 4, we decline to recognize an inferred fundamental 4 right benefitting only a select few New Mexicans. Fundamental constitutional rights 5 that protect life, liberty, or happiness are “enjoyed by all New Mexicans[.]” Griego, 6 2014-NMSC-003, ¶ 1 (emphasis added); see also Obergefell, __ U.S. at __, 135 S. 7 Ct. at 2599 (recognizing that marriage is a fundamental right “for all persons, 8 whatever their sexual orientation” (emphasis added)). The selective discrimination 9 embodied within Plaintiffs’ concept of aid in dying is constitutionally unsound for 10 recognition as a fundamental right embodied within Article II, Section 4 and does not 11 protect all New Mexicans who have equal interests in dying with autonomy and 12 dignity. 13 D. 14 Whether Aid in Dying Is Protected by the New Mexico Constitution Under Plaintiffs’ Other Theories 15 Plaintiffs challenged Section 30-2-4 in the district court under five independent {48} 16 claims. They claimed that Section 30-2-4 (1) does not prohibit aid in dying, (2) is 17 unconstitutionally vague, (3) violates Article II, Section 18’s equal protection 18 guarantee, (4) violates Article II, Section 18’s due process guarantee, and (5) violates 19 Article II, Section 4’s inherent rights guarantee. In addition to asserting that aid in 49 1 dying is a fundamental right requiring strict protection under our constitution’s equal 2 protection, due process, and inherent rights clauses, Plaintiffs asserted that Section 3 30-2-4’s prohibition on aid in dying “is not substantially related to an important 4 governmental interest[, or] . . . is not rationally related to firm legal rationale.” 5 Plaintiffs submitted proposed findings of fact and conclusions of law pertaining to all 6 of these theories. In its decision, the district court did not address the second and third 7 theories listed above. Further, the district court did not fully address Plaintiffs’ fourth 8 and fifth theories, whether Section 30-2-4 would pass an intermediate or a rational 9 basis review in the event aid in dying was ultimately determined not to qualify as a 10 fundamental right. It recognized in its final judgment that it did not need to address 11 these other theories because it had concluded that aid in dying was a fundamental 12 right and that Section 30-2-4 was subject to strict scrutiny review. 13 {49} In applying its due process analysis under Article II, Section 18, the district 14 court did not address whether aid in dying qualifies as the type of important 15 individual interest entitled to heightened protection under intermediate scrutiny. See 16 Mieras v. Dyncorp, 1996-NMCA-095, ¶ 26, 122 N.M. 401, 925 P.2d 518 (noting that 17 important individual interests, although not fundamental, are entitled to a 18 intermediate standard of constitutional review to test the application of the impinging 50 1 legislation); Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 12 n.3, 137 N.M. 734, 2 114 P.3d 1050 (emphasizing that the intermediate scrutiny standard applies to “either 3 an important right or a sensitive class, contrary to what we may have suggested in 4 dicta in [previous cases]”); see also Richardson v. Carnegie Library Rest., Inc., 19885 NMSC-084, ¶¶ 35-37, 107 N.M. 688, 763 P.2d 1153 (noting that heightened 6 intermediate scrutiny allows a method of genuine judicial inquiry of important 7 individual interests rather than the all-or-nothing choice between minimum rationality 8 and strict scrutiny), overruled on other grounds by Trujillo v. City of Albuquerque, 9 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305. “This level of evaluation is more 10 sensitive to the risks of injustice than the rational basis standard and yet less blind to 11 the needs of governmental flexibility than strict scrutiny.” Marrujo v. N.M. State 12 Highway Transp. Dep’t, 1994-NMSC-116, ¶ 11, 118 N.M. 753, 887 P.2d 747 13 (internal quotation marks and citations omitted). 14 {50} Although the initial burden still rests upon a plaintiff to establish that the 15 legislation at issue infringes upon an important individual interest, the state’s burden 16 of proof under an intermediate scrutiny analysis is different from the burden required 17 under a strict scrutiny analysis. Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing 18 that the government bears the burden of proof under intermediate scrutiny to “prove 51 1 that the classification or discrimination caused by the legislation is substantially 2 related to an important government interest” (internal quotation marks and citation 3 omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, 4 ¶ 29, 284 P.3d 1090 (recognizing that the government bears the burden of proof under 5 strict scrutiny “to show that it has a compelling interest in the challenged scheme and 6 that it has accomplished its goals by employing the least restrictive means”), rev’d on 7 other grounds, 2013-NMSC-044, 310 P.3d 60; see also Griego, 2014-NMSC-003, 8 ¶ 56 (applying intermediate scrutiny in an equal protection context and considering 9 “whether the legislation is over- or under-inclusive in its application” and “whether 10 the legislation is the least restrictive alternative for protecting the important 11 governmental interest”); Breen, 2005-NMSC-028, ¶ 32 (“While the least restrictive 12 alternative need not be selected if it poses serious practical difficulties in 13 implementation, the existence of less restrictive alternatives is material to the 14 determination of whether the [restriction] substantially furthers an important 15 governmental interest.” (alteration, internal quotation marks, and citation omitted)). 16 The standard of proof differs even further when the district court applies rational 17 basis testing. See id. ¶ 11 (recognizing that the party challenging the legislation bears 18 the burden to prove that the statute is not rationally related to a legitimate 52 1 governmental purpose). The alternative standards of proof that were included in 2 Plaintiffs’ proposed findings and conclusions were not addressed by the district court 3 in its original ruling and the corresponding findings that it entered. See State ex rel. 4 King v. UU Bar Ranch Ltd., 2009-NMSC-010, ¶ 44, 145 N.M. 769, 205 P.3d 816 5 (“When a trial court rejects proposed findings of facts or conclusions of law, we 6 assume that said facts were not supported by sufficient evidence.”). 7 {51} We have discretion under certain circumstances to resolve any issue raised on 8 appeal, regardless of whether the district court had an opportunity to resolve that 9 issue. See Rule 12-216(A) (limiting appellate scope of review to issues where it 10 “appear[s] that a ruling or decision by the district court was fairly invoked,” but 11 granting appellate courts the discretion to consider unpreserved questions involving 12 jurisdiction, general public interest, fundamental error, or fundamental rights of a 13 party). However, we also have the discretion to remand a case to the district court to 14 address alternative claims or theories raised by the parties that it declined to address 15 at the trial level. See Pruyn v. Lam, 2009-NMCA-103, ¶ 17, 147 N.M. 39, 216 P.3d 16 804 (declining to address on appeal an alternative theory raised in the district court 17 because the district court did not address the alternative theory and remanding the 18 case to the district court to address that theory); State ex rel. Children, Youth & 53 1 Families Dep’t v. Frank G., 2005-NMCA-026, ¶ 40, 137 N.M. 137, 108 P.3d 543 2 (“The general rule in New Mexico for determining the finality of a judgment is 3 whether all issues of law and fact have been determined and the case disposed of by 4 the [district] court to the fullest extent possible.” (internal quotation marks and 5 citation omitted)). 6 {52} To the extent that aid in dying may be an important interest on par with other 7 important interests recognized by our courts, such as the right to access the courts and 8 the right to an appeal, see Wagner, 2005-NMSC-016, ¶ 14, and the right to run for 9 elected office, see Alvarez v. Chavez, 1994-NMCA-133, ¶ 21, 118 N.M. 732, 886 10 P.2d 461, overruled on other grounds by Trujillo v. City of Albuquerque, 199811 NMSC-031, the district court should have analyzed Section 30-2-4 under 12 intermediate scrutiny and determined whether the State has satisfied its lower burden 13 of persuasion. Furthermore, it should have determined whether Section 30-2-4 passes 14 a rational basis test as applied to aid in dying and have rendered a decision on 15 Plaintiffs’ remaining constitutional claims so as to avoid potential piecemeal appeals 16 in this case. 17 {53} Although these and Plaintiffs’ other alternative claims involve matters of 18 profound public interest, see Rule 12-216, it is more appropriate in this case to 54 1 require the district court to render its decision on these claims and explain the 2 grounds for those decisions prior to our review. The district court, as the sole fact 3 finder in this case, was present for all of the testimony and arguments presented at 4 trial. In considering the claims that it thought unnecessary to consider in the first 5 instance, it will have an opportunity to make any additional factual findings that are 6 more specific to the unaddressed issues and to require further hearings and/or briefing 7 on these issues. Our Court is not in the position to make factual findings relevant to 8 issues left unaddressed by the district court. See generally Maloof v. San Juan Cnty. 9 Valuation Protests Bd., 1992-NMCA-127, ¶ 17, 114 N.M. 755, 845 P.2d 849 (“The 10 findings of fact adopted below, if supported by substantial evidence, are controlling 11 on appeal.”). Therefore, I would remand this case to the district court for further 12 proceedings it deems necessary to result in the entry of findings of fact and 13 conclusions of law concerning Plaintiffs’ remaining claims. 14 CONCLUSION 15 {54} We reverse the district court’s ruling that aid in dying is a fundamental liberty 16 interest under the New Mexico Constitution. Accordingly, we reverse the district 17 court’s order permanently enjoining the State from enforcing Section 30-2-4. We 18 affirm the district court’s determination that, for statutory construction purposes, 55 1 Section 30-2-4 prohibits aid in dying. Separate from the Concurring Opinion, I would 2 also remand this case to the district court to make any further findings it deems 3 necessary, to conduct both an intermediate scrutiny and rational basis review of 4 Section 30-2-4, as well as dispose of Plaintiffs’ remaining claims. 5 6 7 {55} IT IS SO ORDERED. _______________________________ TIMOTHY L. GARCIA, Judge 8 J. MILES HANISEE, Judge (concurring in part) 9 LINDA M. VANZI, Judge (dissenting) 56 1 HANISEE, Judge (concurring in part). 2 {56} I view the New Mexico Constitution to incorporate no right—fundamental or 3 otherwise—to lethal narcotics medically prescribed for the sole purpose of causing 4 the immediate death of a patient. I therefore concur in reversing the judgment of the 5 district court, and join the majority conclusion that neither Article II, Sections 4 nor 6 18 constitutionalize aid in dying as a fundamental right in New Mexico. See Majority 7 Op. ¶¶ 39, 43. I further agree that NMSA 1978, Section 30-2-4 prohibits aid in dying 8 in New Mexico. See Majority Op. ¶ 20. I respectfully decline to join the perspectives 9 of either of my colleagues that there is or may be some non-fundamental but 10 otherwise constitutionally “important right” to aid in dying.6 Accordingly, remand for 11 further district court proceedings is unwarranted, see also Dissenting Op. ¶ 142, and 12 I diverge from the Majority Opinion in this regard also. See Majority Op. ¶ 53. As 13 well, I write separately to address my belief that a different branch of the tripartite 14 structure that characterizes our governmental system is vastly better suited to consider 15 and resolve the lawfulness of aid in dying in New Mexico than is the judiciary. 6 16 The Dissenting Opinion would hold there to be a “fundamental, or at least 17 important, liberty right to aid in dying.” Dissenting Op. ¶ 104. The Majority author 18 leaves open only the possibility that the lesser of such rights might be guaranteed by 19 the New Mexico Constitution. Majority Op. ¶¶ 52-53. 57 1 {57} In proposing to affirm the district court, the Dissenting Opinion would 2 adjudicate New Mexico to be just the fourth state to legalize aid in dying, yet the only 3 one to do so extra-statutorily and in a manner broadly circumventive of democratic 4 processes.7 Such a ruling would stand troublingly alone nationally, and would 5 simultaneously contravene: (1) the United States Supreme Court’s unanimous 6 declaration that there is no such constitutional right; (2) the New Mexico 7 Legislature’s longtime prohibition of suicide assistance and far more recent 8 establishment of end-of-life standards of medical care that expressly disallow aid in 9 dying; and (3) principles of judicial reasoning that rarely compel, and even more 10 rarely permit, the unilateral and permanent imposition of robed will upon coequal 11 branches of government and society at large. The institution tasked with ensuring 12 legal order ought to be measurably cautious before strong-arming into existence 13 instant, precipitous, and profound social change. 14 Aid in Dying Is Not A Fundamental Right 15 {58} I agree with the Majority Opinion’s analysis holding there to be no Article II- 16 derived fundamental right to aid in dying in New Mexico. First, Article II, Section 18 7 17 While not affirmatively legalizing aid in dying, the Supreme Court of Montana 18 held that “a terminally ill patient’s consent to . . . aid in dying constitutes a statutory 19 defense to a charge of homicide.” Baxter, 2009 MT 449, ¶ 50. 58 1 safeguards our right to due process of law by language meaningfully 2 indistinguishable from the federal Due Process Clause that was held by the United 3 States Supreme Court not to provide a right to aid in dying. See Glucksberg, 521 U.S. 4 at 728 (“[T]he asserted ‘right’ to assistance in committing suicide is not a 5 fundamental liberty interest protected by the Due Process Clause.”). In order to 6 conclude contrary to Glucksberg, we are first required to adhere to the narrow 7 interstitial parameters our New Mexico Supreme Court applies when it is asked to 8 depart from federal constitutional precedent. See Gomez, 1997-NMSC-006, ¶ 19 9 (permitting recognition of a right rejected for federal protection by “flawed federal 10 analysis,” or if arising from “structural differences between state and federal 11 government” or New Mexico’s “distinctive state characteristics”). Yet neither our nor 12 some select legal critics’ disagreement with established federal precedent, see 13 Dissenting Op. ¶¶ 98-99 (citing scholarly opposition to Glucksberg), are the sort of 14 determinants of legal “flaw” that I can embrace under Gomez.8 The Majority 15 Opinion’s exclusion of aid in dying from those constitutional rights identified by 8 16 Regarding the latter two Gomez-available bases for interstitial departure, 17 nothing in the record of this case or the arguments of Plaintiffs illustrates structural 18 governmental differences or distinctive state characteristics that lend support to a 19 constitutional right to aid in dying in New Mexico. 20 59 1 process of interstitial analysis is correct, see Majority Op. ¶ 38, particularly given the 2 United States Supreme Court’s concise but timely supportive reference to Glucksberg 3 in Obergefell. ___ U.S. at ___, 135 S. Ct. at 2602 (noting that Glucksberg’s “central 4 reference to specific historic practices . . . may have been appropriate for the asserted 5 right there involved (physician-assisted suicide)[, but] it is inconsistent with the 6 approach [the United States Supreme Court] has used in discussing other fundamental 7 rights, including marriage and intimacy”). It would be a mistake to disregard as dicta 8 the Court’s own recognition that not all interests asserted to be of constitutional 9 dimension require identical analyses. See Obergefell, ___ U.S. at ___, 135 S. Ct. at 10 2602 (prohibiting the unequal disallowance of a recognized class of Americans from 11 exercising a 48-year-long established fundamental constitutional right); see also 12 Loving, 388 U.S. at 12 (declaring marriage to be “one of the vital personal rights 13 essential to the orderly pursuit of happiness”). 14 {59} Secondly, among other inherent rights, Article II, Section 4 guarantees those 15 of “enjoying and defending life and liberty[.]” See Griego, 2014-NMSC-003, ¶ 1. But 16 our New Mexico Supreme Court has yet to hold this constitutional provision to be a 17 fountain for as-yet-undiscovered rights, the implied geneses of which more typically 18 spring from federal and/or state due process and equal protection clauses, such as 60 1 those within Article II, Section 18. See Obergefell, ___ U.S. at ___, 135 S. Ct. at 2 2602-03 (“The Due Process Clause and the Equal Protection Clause [interrelate] in 3 a profound way [to] . . . further[] our understanding of what freedom is and must 4 become.”). This distinction is uniquely apropos to aid in dying, an asserted right that 5 is functionally at odds with the enjoyment and defense of life, two of the very few 6 stated interests Article II, Section 4 directly protects. See Majority Op. ¶¶ 40-43. In 7 any event, even Griego mentions Article II, Section 4 in an introductory way, like our 8 Constitution, then proceeds to conduct its constitutional inquiry pursuant to better 9 established interpretive methodology. Griego, 2014-NMSC-003, ¶¶ 1, 25-27, 68. 10 Aid in Dying Is Not An Important Right To Which Intermediate Scrutiny 11 Applies 12 {60} It seems innately sensible that a constitutional right of any sort, even one that 13 is non-fundamental but “important,” must be meaningfully rooted within some 14 specific protection afforded by the document being interpreted, or elsewhere by law. 15 Yet the theoretical constitutional origin of an important such right does not 16 automatically emerge from an otherwise flawed constitutional assertion. As noted 17 above, the interest that is aid in dying is not merely one unmentioned by the New 18 Mexico Constitution, but one that contradicts its very language and a first principle 19 for which it stands. See N.M. Const. art. II, § 4 (declaring the enjoyment and defense 61 1 of life to be “natural, inherent and inalienable rights[.]”). Moreover, constitutionally 2 “important right[s]” are those “certainly . . . more important and sensitive than rights 3 restricted by primarily social . . . legislation.” State v. Druktenis, 2004-NMCA-032, 4 ¶ 98, 135 N.M. 223, 86 P.3d 1050. While it would be a mistake to coldly or cavalierly 5 disregard the wishes of some who suffer from terminal illnesses, and for whom the 6 enjoyment of life has been lost, the aid in dying interest presented by Plaintiffs to be 7 a uniquely New Mexican constitutional right is neither absolute nor unqualified; that 8 is, it is conditionally available to certain citizens but not to others. See Lucero v. 9 Salazar, 1994-NMCA-066, ¶ 6, 117 N.M. 803, 877 P.2d 1106 (citing Oldfield, 199410 NMSC-005, ¶ 15, to advance the proposition that Article II, Section 4 is interpreted 11 in a manner consistent with absolute and unqualified rights derived from the 12 Fourteenth Amendment to the United States Constitution). To establish or leave open 13 the possibility that this narrowest of interests is one of constitutional dimension 14 disregards its predominant unavailability as well as its absence from and irresolvable 15 squabble with our Constitution’s language that instead expresses and emphasizes a 16 diametrically opposite and equally available fundamental right: life’s preservation. 17 {61} Furthermore, even were aid in dying suited for a determination of 18 constitutional importance, it would squarely conflict with the State’s own important 62 1 and legitimate contrary interests. See Marrujo, 1994-NMSC-116, ¶ 11 (holding that 2 an “important—rather than fundamental—individual interest” yields to legislation 3 that “substantially relate[s] to an important governmental interest”)(internal quotation 4 marks and citation omitted). Those include: 5 6 7 8 9 10 11 preventing a person from taking the life of another; preventing suicide; preventing assisted suicide; promoting the integrity, healing, and life preserving principles of the medical profession; protecting vulnerable groups from unwanted pressure to considering aid in dying as the best alternative to other medical options; and promoting human life where aid in dying is not the appropriate medical option despite a patient’s request for its use. 12 Majority Op. ¶ 37. It is difficult to envision legislation designed to foster indisputably 13 legitimate state interests such as these to give way to a limited interest that is, as the 14 Majority Opinion points out, societally undeveloped and within its legal infancy in 15 state courts. Id. Of yet greater concern would be the dearth of any regulatory 16 framework enforceable by the State to ensure the safety and efficacy of aid in dying 17 were this judicial body to pronounce its legality. Unlike the three states that have 18 legislatively permitted aid in dying, its practice in New Mexico would occur in a void 19 only minimally filled by externally written and questionably enforceable 20 “professional standards of practice” or some alternately nebulous “established 21 standard of care.” Dissenting Op. ¶¶ 126, 127. In fact, the best examples of why the 63 1 more capably informed legislative process is the superior means by which aid in 2 dying might achieve legality are the three statutory enactments existing nationally. 3 See Or. Rev. Stat. Ann. §§ 127.800 to .897; Vt. Stat. Ann. tit. 18, §§ 5281 to 5292; 4 Wash. Rev. Code Ann. §§ 70.245.10 to .904. Each not only provides a framework to 5 actuate aid in dying, but also defines physician responsibilities, reporting 6 requirements, and procedural processes. Id. Importantly, each state imposes criminal 7 liability on individuals who engage in varying degrees of malfeasance with regard to 8 aid in dying. See Wash. Rev. Code Ann. § 70.245.200; Or. Rev. Stat. Ann. § 127.890 9 § 4.02; Vt. Stat. Ann. tit. 18, § 5283(b). Such a patient-safety-driven framework, 10 codifying a deterrent threat of criminal liability should lives be prematurely, wrongly, 11 or improperly ended in violation of statutorily pre-defined safeguards, is altogether 12 absent in New Mexico. And it is not the judiciary’s place to assume the legislative 13 role necessary to enact some regulatory substitute for that which should accompany 14 and govern any such fundamental transformation in medical caregiving. I consider 15 a New Mexico courthouse to be perhaps the least suitable venue to determine whether 16 the foundational healing tenet of medical care—the Hippocratic Oath—is to be 17 abruptly disregarded, even in the laudable context of attempting to alleviate the 18 suffering of dying patients. 64 1 {62} Notably also, aid in dying negates not one but three contrary expressions of law 2 passed by our citizen legislature, the constitutional branch of government elected by 3 New Mexicans to represent their perspectives as lawmakers. See § 30-2-4; §§ 24-7A4 1 to -18 (Uniform Health Care Decisions Act); §§ 24-7B-1 to -16 (Mental Health 5 Care Treatment Decisions Act). See also Glucksberg, 521 U.S. at 720 (“By extending 6 constitutional protection to an asserted right or liberty interest, we, to a great extent, 7 place the matter outside the arena of public debate and legislative action.”). To 8 substitute our judgment for that underpinning laws written by the New Mexico 9 Legislature and enacted by a governor’s signature would serve to disrupt the 10 considered order by which society is governed. See Baxter, 2009 MT 449, ¶ 117 11 (Rice, J., dissenting) (“Controlling their own destiny, Montanans may decide to 12 change the [s]tate’s public policy. . . . This [c]ourt should allow [its citizens] . . . to 13 control their own destiny on [aid in dying].”). Such is particularly true when the 14 newfound right arises from inexact, directly contrary, ethereal, or otherwise indefinite 15 language. Our Constitution was not meant to be molded and stretched to exclusively 16 afford a right of any sort to so few of the many protected by the same enduring and 17 all-encompassing document. See Griego, 2014-NMSC-003, ¶¶ 53, 68-69 (declaring 65 1 unconstitutional statutes that preclude a “discrete group” of New Mexico citizens 2 from engaging in an activity afforded to another group). 3 {63} Regarding intermediate scrutiny, Griego is our New Mexico Supreme Court’s 4 most recent topical jurisprudence. Prior to Obergefell’s ruling that same-sex marriage 5 is protected by the United States Constitution, Griego applied intermediate scrutiny 6 to hold that same-gender couples in New Mexico cannot be denied the “rights, 7 protections and responsibilities of civil marriage solely because of their sexual 8 orientation.” Griego, 2014-NMSC-003, ¶ 6. But three circumstances distinguish 9 Griego from the issue before us. First, Griego made clear that “none of [the] New 10 Mexico[] marriage statutes specifically prohibit same-gender marriages”; however, 11 each “reflect[ed] a legislative intent” to do so. 2014-NMSC-003, ¶¶ 4, 23. Here, 12 Section 30-2-4 expressly criminalizes “deliberately aiding another in the taking of his 13 [or her] own life[,]” a prohibition twice reiterated in ensuing legislation regarding end 14 of life medical care. See also §§ 24-7A-13(C); 24-7B-15(C) (each expressly refusing 15 to “authorize . . . assisted suicide . . . to the extent prohibited by other statutes of this 16 state”). Second, unlike the situation before us where the United States Supreme Court 17 has held there to be no fundamental liberty interest in “assistance in committing 18 suicide[,]” Glucksberg, 521 U.S. at 728, our New Mexico Supreme Court in Griego 66 1 recognized that the question before it was one that had at the time “not been answered 2 by the United States Supreme Court” and declined to address fundamentality. Griego, 3 2014-NMSC-003, ¶ 54. Third and most importantly, the result in Griego was based 4 upon application of the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 5 28-1-1 to -15 (1969, as amended through 2007) (recognizing “sexual orientation as 6 a class of persons protected from discriminatory treatment”) in conjunction with the 7 “equality demanded by the Equal Protection Clause of the New Mexico Constitution.” 8 Griego, 2014-NMSC-003, ¶¶ 42, 68 (internal quotation marks and citation omitted). 9 Almost needless to say, the NMHRA is silent on “terminally ill” as a protected class. 10 {64} With no sensitive class or equal protection consideration like was present in 11 Griego, application of intermediate scrutiny in this instance can only be premised 12 upon the identification of aid in dying as a freshly minted constitutionally important 13 right. See Wagner, 2005-NMSC-016, ¶ 12 n.3 (application of intermediate scrutiny 14 “requires either an important right or a sensitive class”) (emphasis in original). If 15 found to be such, aid in dying would immediately violate the very equality of 16 application demanded of rights guaranteed by the New Mexico Constitution. One 17 class of citizens—terminally ill, mentally competent adults—would possess a right 18 that would be denied to other similarly but not identically situated New Mexicans at 67 1 the end of their lives.9 New Mexico courts should be particularly wary of 2 constitutionalizing interests that would be unavailable to inexactly situated members 3 of the broader public at the end of their lives. See Quill, 521 U.S. at 799 (rejecting 4 equal protection challenge to New York’s statutes banning aid in dying that apply to 5 “all New Yorkers alike [and do not] . . . infringe fundamental rights [or] suspect 6 classifications.” (emphasis added)). Likewise, the constitutional infirmity of 7 protecting some New Mexicans (physicians) but not others (family members of 8 terminally ill patients) from Section 30-2-4’s reach is to me starkly apparent. See also 9 Majority Op. ¶ 44. 10 Section 30-2-4 Is Reasonably Related To A Legitimate Government Purpose 11 {65} A constitutional challenge to governmental interference with an asserted right 12 bestirs a process of review both federally and in New Mexico whereupon courts 13 “decide what interest is involved or to whom the interest belongs[,]” Marrujo, 1994- 14 15 16 17 18 19 20 21 22 9 A right to aid in dying available only to a minute sector of the population would seem markedly in conflict with bedrock constitutional principles that guarantee equality of rights. Yet to apply principles of equal protection to any future right to aid in dying, as courts will inevitably be asked to do, seems as well fraught with peril. See Rachel Aviv, Letter From Belgium, The Death Treatment: When should people with a non-terminal illness be helped to die?, The New Yorker, (June 22, 2015), available at http://www.newyorker.com/magazine/2015/06/22/the-death-treatment (questioning the practice of aid in dying generally and specifically its expansion to the contexts of mental illness and dementia in Belgium). 68 1 NMSC-116, ¶ 9, ascertain state interest in prohibiting or curtailing the asserted right, 2 Griego, 2014-NMSC-003, ¶¶ 56-62 (identifying and rejecting the state’s interest in 3 denying same gender couples the right to marry), and apply whichever of three 4 ensuing standards of legal scrutiny is warranted to fairly balance the interests of the 5 proponent with those of the State: strict, intermediate, or “rational basis.” Marrujo, 6 1994-NMSC-116, ¶¶ 9-12 (explaining each standard of review and stating that in 7 New Mexico “the same standards of review are used in analyzing both due process 8 and equal protection guarantees”). The rational basis test is “triggered 9 by . . . interests . . . that are not fundamental rights, suspect classifications, important 10 individual interests, [or] sensitive classifications.” Id. ¶ 12. “The burden is on the 11 opponent of the legislation to show that the law lacks a reasonable relationship to a 12 legitimate governmental purpose.” Id. (internal citation omitted). The test applies in 13 circumstances of “personal activities that are not fundamental rights.” Id. Aid in 14 dying is such an activity, and is subject to rational basis review. 15 {66} To justify its ban on aid in dying, the State relies on many of the same 16 “unquestionably important and legitimate” governmental interests identified to be 17 valid by Glucksberg: (1) preserving life; (2) “protecting the integrity and ethics of the 18 medical profession”; (3) “ensuring adequate regulation of the practice”; and (4) 69 1 preventing suicide and treating its causes. 521 U.S. at 703, 729-35. Without 2 “weigh[ing] exactingly the relative strengths of these various interests,” Glucksberg 3 concluded Washington’s prohibition of “assisting another in the commission of self4 murder[,]” to be “at least reasonably related to their promotion and protection.” Id. 5 at 707, 735 (internal quotation marks omitted). Therefore, pursuant to rational basis 6 review, the Washington statute did not violate the Fourteenth Amendment. Id. at 735; 7 see also Marrujo, 1994-NMSC-116, ¶ 12 (“The opponent’s burden is difficult 8 because they must demonstrate that the challenged legislation is clearly arbitrary and 9 unreasonable, not just possibly so. The court will uphold the statute if any state of 10 facts can be discerned that will reasonably sustain the challenged [legislation.]” 11 (internal quotation marks and citation omitted)). Here, Section 30-2-4 prohibits 12 “deliberately aiding another in the taking of his [or her] own life” in a manner nearly 13 identical to the State of Washington, and New Mexico’s own recognized 14 governmental interests align with those determined to be valid by Glucksberg. 15 Accordingly, I would conclude that Section 30-2-4 is rationally related to a legitimate 16 government purpose. Both it and the ensuing statutory enactments that define the 17 parameters of medical decision-making reiterate the disallowance of aid in dying in 18 New Mexico, and warrant the “traditional deference accorded by courts to the 70 1 legislature’s sense of the general good” emphasized by Marrujo in its discussion of 2 rational basis review. 1994-NMSC-116, ¶ 12 (internal quotation marks and citation 3 omitted). The determination that Section 30-2-4 withstands rational basis review as 4 a matter of law should be part of our holding today. 5 {67} Lastly, I note that the rational basis test reflects the deference owed by our third 6 branch of government when legislative and executive processes combine to produce 7 laws that govern society. Our uneven decision today amply illustrates why those 8 processes provide better answers to societal questions such as the legality or illegality 9 of aid in dying. Pursuant to them, the New Mexico Legislature may, upon 10 consultation with constituents and citizens, study and propose any bill it deems to be 11 in the best interest of New Mexicans. If such legislation withstands the rigors of 12 bicameral scrutiny, it is next subjected to executive review, after which a governor 13 may sign or veto it. By this exacting process, the people of our state speak to declare 14 their wishes. If an ensuing enactment is legally challenged, courts are then far better 15 positioned to exercise their constitutional role in a properly judicial context. 16 CONCLUSION 17 {68} It can be difficult to repress—as judges sometimes must—the innately human 18 inclination to act when invited to provide a decisional option in circumstances where 71 1 options are sadly few. By declining such an invitation today, I mean not to assail aid 2 in dying or to thwart what Plaintiffs hope to accomplish for gravely ill New 3 Mexicans. The role of the judiciary is not always to determine a victor between 4 competing extremes, particularly when answers to questions of law are attainable on 5 narrower grounds. See Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 6 (citing Baca v. N.M. Dep’t of Pub. Safety, 2002-NMSC-017, ¶ 12, 132 N.M. 282, 47 7 P.3d 441, for the proposition that “courts exercise judicial restraint by deciding cases 8 on the narrowest possible grounds and avoid reaching unnecessary constitutional 9 issues”). Those that may be disappointed or pleased by today’s decision should also 10 know that three judges can no more disavow aid in dying as a movement gathering 11 public momentum than we should today stifle the deeply held beliefs and 12 countervailing efforts of those that exercise their right to oppose it. 13 {69} The question before this panel is not whether aid in dying should be legal, nor 14 whether it can be legalized in a manner consistent with the New Mexico Constitution; 15 we must simply answer whether the legality of aid in dying is constitutionally 16 compulsory. It is not. The correct answer does not spring from our own individual or 17 collective “policy preferences [as m]embers of this Court,” Glucksberg, 521 U.S. at 18 720, but from our informed fidelity to constitutional precedent, institutionally 72 1 advisable notions of restraint, required respect for the roles of co-equal branches of 2 government, and awareness of the often arduous, and yet enduring, people-driven 3 process by which societies evolve within our nation’s immortality-minded experiment 4 in democracy. See Schuette v. BAMN, ___ U.S. ___, 134 S. Ct. 1623, 1636-37 (2014) 5 (noting by plurality the “right of citizens to debate so they can learn and decide and 6 then, through the political process, act in concert to try to shape the course of their 7 own times”). Inevitably, the value of rights chosen by citizens will exceed that of 8 rights prematurely directed by judges. To spare aid in dying that which is normally 9 required to effectuate significant change to New Mexico law would deprive it of both 10 the legitimacy of public inclusion and the opportunity for consensus invaluable to the 11 determinative process. See Obergefell, ___ U.S. at ___, 135 S. Ct. at 2605 (noting 12 with approval the “referenda, legislative debates, and grassroots campaigns, as well 13 as countless studies, papers, books, and other popular and scholarly writings 14 [alongside] extensive litigation in state and federal courts” regarding same-sex 15 marriage). Such would also wrongly short-change citizens across our state who wish 16 to voice their opinion prior to being told the outcome of matters about which they 17 care. Our preference today simply does not belong alongside historic, hard won, and 73 1 transcendent rights that warrant constitutional guarantee to the exclusion of 2 countervailing governmental interests. 3 {70} Based on my agreement that the New Mexico Constitution provides no 4 fundamental right to aid in dying, I concur in the Majority Opinion’s reversal of the 5 district court’s final declaratory judgment and order of permanent injunction. I would 6 extend our ruling to additionally conclude that aid in dying is not a constitutionally 7 protected important right or interest. Lastly, I would uphold Section 30-2-4 pursuant 8 to the rational basis standard of review. 9 10 ______________________________ J. MILES HANISEE, Judge 74 1 VANZI, Judge (dissenting). 2 {71} The question presented is whether NMSA 1978, Section 30-2-4 (1963) may 3 constitutionally be applied to criminalize a willing physician’s act of providing “aid 4 in dying” at the request of a mentally competent, terminally ill patient who wishes a 5 peaceful end of life as an alternative to being forced to endure an unbearable dying 6 process marked by suffering, including extreme pain and/or the loss of autonomy and 7 dignity. I would hold that it may not and would therefore affirm the district court’s 8 order permanently enjoining the State from prosecuting under Section 30-2-4 any 9 physician who provides aid in dying in accordance with the parties’ agreed definition. 10 I present my analysis in full, save for my recitation of the factual record and statutory 11 interpretation, regardless of any repetition with portions of the majority opinion.10 12 I. BACKGROUND 13 Plaintiffs contend that the right to aid in dying is “fundamental or, at the very {72} 14 least, important under the New Mexico Constitution.” I understand the parties’ agreed 15 definition of “aid in dying” to limit the right such that it is implicated only where: (1) 16 a mentally competent adult who is capable of giving consent, and (2) who is 17 terminally ill with a grievous and irremediable medical condition, (3) chooses to 10 18 A certain amount of redundancy is unavoidable because the majority opinion 19 tracks some of my analysis and presentation of the relevant law. 75 1 request a prescription for medication that may be ingested to bring about a painless, 2 peaceful, and dignified end of life, and (4) a willing physician applying the 3 established standard of care for aid in dying determines that it would be appropriate 4 to provide such medication so that the requesting patient need not be forced to endure 5 an intolerable dying process marked by suffering, including extreme pain and/or loss 6 of autonomy and dignity. All references to “aid in dying” herein assume and 7 encompass the full scope of the foregoing definition. 8 {73} I pause to address the majority and concurring opinions’ attempt to use these 9 limitations in support of the argument that there is no fundamental right to aid in 10 dying, suggesting that recognizing the right would somehow be an act of “selective 11 discrimination” because only “a select few” would have it and because it “also 12 provides a very narrow benefit from prosecution that exclusively favors physicians.” 13 See Majority Op. ¶¶ 44-47 (referring to the limitations as “exclusionary defects”); see 14 also Concurring Op. ¶¶ 62, 64. The contention is untenable. The right to aid in dying, 15 which I would hold is protected under our Constitution, belongs to all New Mexicans. 16 The fact that it may be invoked only by some people who find themselves in certain 17 circumstances is also true of other constitutional rights. The parental autonomy rights 18 recognized by the Constitution (discussed below) apply to all citizens, even though 76 1 not all citizens will exercise them. So too, the reproductive autonomy rights to use 2 contraception and to terminate a pregnancy belong to every citizen, notwithstanding 3 that every citizen might not be in a situation that would bring about their exercise. 4 The right to terminate a pregnancy, moreover, cannot be exercised beyond a certain 5 point in the pregnancy. Viability marks “the earliest point at which the State’s interest 6 in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic 7 abortions”; before then, “the State’s interests are not strong enough to support a 8 prohibition of abortion or the imposition of a substantial obstacle to the woman’s 9 effective right to elect the procedure.” Planned Parenthood of Se. Pa. v. Casey, 505 10 U.S. 833, 835, 846 (1992). Those who are on life support have the constitutional right 11 to have their lives ended, although not everyone will be on life support. See Cruzan 12 ex rel. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 279, 287, 302, 13 344 (1990) (majority opinion assumed that “a competent person [has] a 14 constitutionally protected right to refuse lifesaving hydration and nutrition”; five 15 Justices concluded that there is a due process right to refuse medical treatment). And 16 there is a fundamental right to marry, even though not everyone will claim it. All 17 asserted rights must be considered in the context in which the allegedly protected 18 conduct takes place. The right to aid in dying is no different in this respect. The fact 77 1 that the right is exercised in a specific context, during a limited time period, does not 2 defeat its existence. Nor is the recognition of the right precluded because it would 3 protect physicians who provide aid in dying from prosecution but not non-physicians. 4 For one thing, Plaintiffs do not assert a right to the assistance of anyone but a 5 physician in providing aid in dying. For another, the protection of physicians from 6 criminal liability in this context is required for the same reasons it is required in any 7 context in which the assistance of a physician is necessary (under the medical 8 standard of care or otherwise) to effectuate the constitutional right of the patient. As 9 discussed below, the patient’s choice and the assistance of the physician to actualize 10 it are both protected. This does not vitiate the right asserted here any more than it 11 does the right to terminate a pregnancy, or to administer terminal sedation, or 12 withdraw life sustaining medication and equipment. 13 {74} Plaintiffs invoke two provisions of the New Mexico Constitution: the due 14 process clause of Article II, Section 18, which has an analogous provision in the 15 United States Constitution, and the inherent rights guarantee of Article II, Section 4, 16 which has no federal constitutional analogue. The State made no attempt below to 17 justify Section 30-2-4 as necessary to serve a compelling governmental interest (as 18 it must if the right is “fundamental”) or a substantial governmental interest (which it 78 1 must if the right is “important”). Instead, relying on a single federal decision, 2 Washington v. Glucksberg, 521 U.S. 702 (1997), it argued that the statute is 3 constitutional as applied to aid in dying because it is rationally related to a legitimate 4 governmental interest. 5 {75} The district court concluded that Section 30-2-4, as applied to aid in dying, 6 violates Article II, Section 4 and Article II, Section 18 of the New Mexico 7 Constitution. Citing Glucksberg, 521 U.S. at 725, the court acknowledged that the 8 United States Supreme Court had previously “declined to find the right to aid in dying 9 to be . . . protected by the federal Constitution.” The court nevertheless departed from 10 federal precedent. Noting that New Mexico has inherent power as a separate 11 sovereign in our federalist system to provide more liberty than that afforded by the 12 federal Constitution and applying the interstitial approach to constitutional analysis, 13 see State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1, the district 14 court concluded that Article II, Section 4 provides “distinct additions” to the rights 15 afforded by the federal Constitution and a basis to diverge from federal precedent. 16 {76} The district court held that “[a] terminally ill, mentally competent patient has 17 a fundamental right to choose aid in dying pursuant to the New Mexico Constitution’s 18 guarantee to protect life, liberty, and seeking and obtaining happiness, N.M. Const. 79 1 art. II, § 4, and its substantive due process protections, N.M. Const. art. II, § 18.” 2 Applying strict scrutiny, the court held that the State had failed to prove that Section 3 30-2-4 furthers a compelling interest by criminalizing physician aid in dying and 4 ordered that the State is permanently enjoined from prosecuting any physician who 5 provides aid in dying to mentally competent, terminally ill patients. 6 {77} On appeal, the State argues that: (1) there is no fundamental constitutional right 7 to the deliberate assistance of a third party in ending one’s own life; and (2) the 8 district court’s ruling violates the doctrine of separation of powers by legalizing 9 conduct that was designated as a crime by the Legislature. Here, as in the district 10 court, the State makes no attempt to justify Section 30-2-4’s proscription against aid 11 in dying as necessary to serve a compelling or substantial state interest; relying on 12 Glucksberg, it asserts it does not have to. Our review is de novo. Bank of N.Y. v. 13 Romero, 2014-NMSC-007, ¶ 52, 320 P.3d 1. 14 II. DUE PROCESS 15 The due process clause of the New Mexico Constitution provides that “[n]o {78} 16 person shall be deprived of life, liberty or property without due process of law[.]” 17 N.M. Const. art. II, § 18. The federal due process clause similarly provides that no 18 state “shall . . . deprive any person of life, liberty, or property, without due process 80 1 of law[.]” U.S. Const. amend. XIV, § 1. Plaintiffs do not claim a right to aid in dying 2 under federal law, but the State’s argument that there is no such right assumes that the 3 result in this case is dictated by Glucksberg, 521 U.S. at 728, which held that “the 4 asserted ‘right’ to assistance in committing suicide is not a fundamental liberty 5 interest protected by the [federal] Due Process Clause” and that “Washington’s 6 assisted-suicide ban [is] rationally related to legitimate government interests.” The 7 majority and concurring opinions also assume that Glucksberg is dispositive here. I 8 begin with a review of the key United States Supreme Court decisions interpreting 9 the liberty interest protected by the federal due process clause. 10 A. Federal Due Process Precedents 11 Long before it decided Glucksberg, the United States Supreme Court {79} 12 interpreted the substantive component of the due process clause to protect aspects of 13 personal autonomy as “fundamental rights,” notwithstanding that they are not 14 mentioned in the text of the Bill of Rights, with which the government may not 15 interfere unless it meets its burden under the strict scrutiny standard to prove that the 16 infringing statute is narrowly tailored to serve a compelling governmental interest. 17 See Casey, 505 U.S. at 847 (explaining that the United States Supreme Court has 18 never accepted the view that “liberty encompasses no more than those rights already 81 1 guaranteed to the individual against [governmental] interference by the express 2 provisions of the first eight Amendments to the Constitution”). 3 {80} These previously recognized fundamental rights include the right to marry, see 4 Loving v. Virginia, 388 U.S. 1, 2 (1967), and aspects of parental autonomy, see, e.g., 5 Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the rights to the 6 companionship, care, custody, and management of one’s children); Stanley v. Illinois, 7 405 U.S. 645, 651-52 (1972) (preserving the right to conceive, raise, and retain 8 custody of one’s children); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 9 541 (1942) (decided on equal protection grounds, emphasizing the “fundamental” 10 nature of individual choice about procreation and the corresponding standard of 11 “strict scrutiny”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925) 12 (recognizing the right to raise one’s children); Meyer v. Nebraska, 262 U.S. 390, 400 13 (1923) (discussing the parental right to control children’s education). The Court has 14 also recognized a fundamental due process right to bodily integrity. See Casey, 505 15 U.S. at 849 (citing Washington v. Harper, 494 U.S. 210, 221-22 (1990); Winston v. 16 Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952)). 17 {81} The Court has held that there is a fundamental due process right to reproductive 18 autonomy, which includes the right to purchase and use contraceptives, see Griswold 82 1 v. Connecticut, 381 U.S. 479, 499 (1965) (recognizing a married couple’s privacy 2 right in their intimate relationship); Eisenstadt v. Baird, 405 U.S. 438, 443-44 (1972) 3 (extending Griswold, under the Equal Protection Clause, to invalidate a state law 4 against distributing contraceptives to unmarried persons), and the right to terminate 5 a pregnancy, see Roe v. Wade, 410 U.S. 113, 165-66 (1973); Casey, 505 U.S. at 833. 6 In Roe and its progeny, the Court recognized and then affirmed the right of a woman 7 to choose whether or not to terminate her pregnancy, reasoning primarily from the 8 personal nature of the decision and its consequences, which are best left to “the 9 woman and her responsible physician.” 410 U.S. at 153; see Casey, 505 U.S. at 846 10 (affirming Roe’s central holding). 11 {82} Writing separately in Roe and its companion case, Bolton, Justice Douglas 12 broadly described, among other liberties, a “freedom to care for one’s health and 13 person[.]” Doe v. Bolton, 410 U.S. 179, 213 (1973) (Douglas, J., concurring). These 14 cases establish that individuals have an “interest in independence in making certain 15 kinds of important decisions[,]” Whalen v. Roe, 429 U.S. 589, 599-600 (1977) 16 (footnote omitted); see Carey v. Population Servs. Int’l, 431 U.S. 678, 684-85 (1977), 17 and that “[i]t is a promise of the Constitution that there is a realm of personal liberty 18 which the government may not enter[,]” Casey, 505 U.S. at 847. This interest in self- 83 1 definition, which is “the heart of liberty,” is no less than “the right to define one’s 2 own concept of existence, of meaning, of the universe, and of the mystery of human 3 life.” Id. at 851. Casey described Roe “not only as an exemplar of Griswold liberty 4 but as a rule . . . of personal autonomy and bodily integrity, with doctrinal affinity to 5 cases recognizing limits on governmental power to mandate medical treatment or to 6 bar its rejection.” Casey, 505 U.S. at 857. 7 {83} Substantive due process decisions pre-dating Glucksberg also clearly 8 recognized, as part of the protected liberty interest, the right to the necessary 9 assistance of a physician. In Carey, 431 U.S. at 684-90, the Court emphasized, in 10 holding that restrictions on the distribution of contraceptives must satisfy strict 11 scrutiny because they clearly burden the fundamental right to make decisions 12 concerning reproduction, that strict scrutiny also applies to state regulations that 13 burden the fundamental right to make such decisions “by substantially limiting access 14 to the means of effectuating that decision.” And the decisions in Roe and Casey held 15 that the right encompasses the assistance of a physician necessary to exercise it, 16 “vindicat[ing] the right of the physician to administer medical treatment according to 17 his professional judgment up to the points where important state interests provide 18 compelling justifications for intervention.” Roe, 410 U.S. at 165-66. “If an individual 84 1 practitioner abuses the privilege of exercising proper medical judgment, the usual 2 remedies, judicial and intra-professional, are available.” Id. at 166. 3 {84} Casey further clarified that, although “[i]t is . . . tempting . . . to suppose that 4 the Due Process Clause protects only those practices, defined at the most specific 5 level, that were protected against government interference by other rules of law when 6 the Fourteenth Amendment was ratified . . . such a view would be inconsistent with 7 our law.” 505 U.S. at 847; see also Rochin, 342 U.S. at 171 (“To believe that this 8 judicial exercise of judgment could be avoided by freezing ‘due process of law’ at 9 some fixed stage of time or thought is to suggest that the most important aspect of 10 constitutional adjudication is a function for inanimate machines and not for 11 judges[.]”). 12 {85} In Cruzan, 497 U.S. at 278, the Court stated that “[t]he principle that a 13 competent person has a constitutionally protected liberty interest in refusing 14 unwanted medical treatment may be inferred from our prior decisions” and 15 “assume[d] that the United States Constitution would grant a competent person a 16 constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 17 279; see id. at 281 (“[T]he Due Process Clause protects . . . an interest in refusing life18 sustaining medical treatment.”). As Justice O’Connor explained in her concurring 85 1 opinion, “The State’s imposition of medical treatment on an unwilling competent 2 adult necessarily involves some form of restraint and intrusion. A seriously ill or 3 dying patient whose wishes are not honored may feel a captive of the machinery 4 required for life-sustaining measures or other medical interventions. Such forced 5 treatment may burden that individual’s liberty interests as much as any state coercion. 6 The State’s artificial provision of nutrition and hydration implicates identical 7 concerns.” Id. at 288 (O’Connor, J., concurring) (citations omitted). “Requiring a 8 competent adult to endure such procedures against her will burdens the patient’s 9 liberty, dignity, and freedom to determine the course of her own treatment. 10 Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it 11 protects anything, an individual’s deeply personal decision to reject medical 12 treatment, including the artificial delivery of food and water.” Id. at 289 (O’Connor, 13 J., concurring). 14 {86} In Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986), overruled by Lawrence 15 v. Texas, 539 U.S. 558 (2003), the Court did an about-face, rejecting the substantive 16 due process analysis it had previously applied in addressing fundamental rights. 17 Recasting the respondent’s claim as an asserted “fundamental right to engage in 18 homosexual sodomy,” id. at 191, the Court dismissed the right as “at best, facetious,” 86 1 because homosexual sodomy was not “deeply rooted in this Nation’s history and 2 tradition.” Id. at 192, 194 (internal quotation marks and citation omitted). In 3 Glucksberg, the Court applied the same tactics, redefining the right asserted and 4 rejecting it for lack of a “deeply rooted” historical antecedent. Before examining 5 Glucksberg, I consider the Court’s most recent substantive due process decisions, 6 which make plain that the Bowers/Glucksberg analysis does not control substantive 7 due process analysis as a matter of federal constitutional law. 8 {87} In Lawrence, the Court overruled Bowers, emphatically rejecting its narrow 9 characterization of the right at issue and its rigid adherence to, and exclusive focus 10 on, an historical analysis in deciding substantive due process claims. Lawrence, 539 11 U.S. at 567, 577-78. The Lawrence Court adopted Justice Stevens’ dissent in Bowers, 12 which recognized that “the fact that the governing majority in a [s]tate has 13 traditionally viewed a particular practice as immoral is not a sufficient reason for 14 upholding a law prohibiting the practice[.]” Lawrence, 539 U.S. at 577-78 (internal 15 quotation marks and citation omitted). Stating that “[t]he issue is whether the majority 16 may use the power of the [s]tate to enforce these views on the whole society through 17 operation of the criminal law[,]” the Lawrence Court embraced Casey, quoting its 18 statement that the Court’s “ ‘obligation is to define the liberty of all, not to mandate 87 1 our own moral code[,]’ ” and its formulation of the due process liberty interest as 2 protecting “the right to define one’s own concept of existence, of meaning, of the 3 universe, and of the mystery of human life.” Lawrence, 539 U.S. at 571, 574 (quoting 4 Casey, 505 U.S. at 850-51). 5 {88} Bowers, the Lawrence Court held, “was not correct when it was decided, and 6 it is not correct today.” Lawrence, 539 U.S. at 578. Reiterating Casey’s 7 pronouncement that “ ‘[i]t is a promise of the Constitution that there is a realm of 8 personal liberty which the government may not enter[,]’ ” Lawrence, 539 U.S. at 578 9 (quoting Casey, 505 U.S. at 847), Lawrence concluded, 10 11 12 13 14 15 16 Had those who drew and ratified the Due Process Clauses . . . known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. 17 Id. at 578-79. 18 {89} The Court cemented its rejection of a rigid historical analysis as dispositive of 19 substantive due process rights in Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 20 (2015), in which the Court held that the federal due process clause protects a liberty 21 interest in marrying a person of the same sex and requires states to license and 88 1 recognize such marriages. See id. at 2604-05, 2608. The Court explained that the 2 liberty interests protected by the federal due process clause “extend to certain 3 personal choices central to individual dignity and autonomy, including intimate 4 choices that define personal identity and beliefs[,]” id. at 2597 (citing Eisenstadt, 405 5 U.S. at 453; Griswold, 381 U.S. at 484-86), and that “[t]he identification and 6 protection of fundamental rights is an enduring part of the judicial duty to interpret 7 the Constitution[,]” id. at 2598. The Court emphasized that the task of fulfilling that 8 judicial responsibility “has not been reduced to any formula,” but rather “requires 9 courts to exercise reasoned judgment in identifying interests of the person so 10 fundamental that the State must accord them its respect.” Id. (internal quotation marks 11 and citation omitted). “History and tradition guide and discipline this inquiry but do 12 not set its outer boundaries.” Id. (citing Lawrence, 539 U.S. at 572). The proper 13 method of analysis “respects our history and learns from it without allowing the past 14 alone to rule the present.” Id. The Court reasoned: 15 16 17 18 19 20 21 22 The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a chapter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. 89 1 Id. 2 B. Washington v. Glucksberg 3 In Glucksberg, which was decided after Bowers but before Lawrence and {90} 4 Obergefell, an alliance of physicians and terminally ill patients sought a declaration 5 that a Washington statute criminalizing “promoting a suicide attempt,” defined as 6 “knowingly caus[ing] or aid[ing] another person to attempt suicide,” violated the 7 federal due process clause. Glucksberg, 521 U.S. at 707-08 (internal quotation marks 8 and citation omitted). The plaintiffs had asserted “a liberty interest protected by the 9 Fourteenth Amendment which extends to a personal choice by a mentally competent, 10 terminally ill adult to commit physician-assisted suicide.” Id. at 708 (internal 11 quotation marks and citation omitted). The Supreme Court recast the issue as 12 “whether the ‘liberty’ specially protected by the Due Process Clause includes a right 13 to commit suicide which itself includes a right to assistance in doing so[,]” id. at 723, 14 and restricted its inquiry to whether that right had previously been recognized in the 15 course of “our Nation’s history, legal traditions, and practices,” id. at 710, 721. The 16 Court concluded that a “ ‘right’ to assistance in committing suicide is not a 17 fundamental liberty interest protected by the Due Process Clause” because “[t]he 18 history of the law’s treatment of assisted suicide in this country has been and 90 1 continues to be one of the rejection of nearly all efforts to permit it.” Id. at 728. 2 Having declined to recognize a fundamental right, the Court went on to hold the 3 State’s asserted interests to be sufficient to withstand the immediate challenge under 4 rational basis review. Id. 5 {91} The Court distinguished Cruzan on the ground that the right the Court assumed 6 existed in that case was rooted in “the common-law rule that forced medication was 7 a battery, and the long legal tradition protecting the decision to refuse unwanted 8 medical treatment,” and thus “was entirely consistent with this Nation’s history and 9 constitutional traditions,” while “[t]he decision to commit suicide with the assistance 10 of another . . . has never enjoyed similar legal protection.” Glucksberg, 521 U.S. at 11 725. The Court characterized the broad, rights-protective language of Casey as a 12 general description of personal activities that had previously been identified as “so 13 deeply rooted in our history and traditions, or so fundamental to our concept of 14 constitutionally ordered liberty, that they are protected by the Fourteenth 15 Amendment[,]” concluding without analysis that the fact that “many of the rights and 16 liberties protected by the Due Process Clause sound in personal autonomy does not 17 warrant the sweeping conclusion that any and all important, intimate, and personal 18 decisions are so protected[.]” Glucksberg, 521 U.S. at 727-28. 91 1 {92} Five Justices wrote separately, reserving the possibility that the Court might 2 recognize a constitutional right to “physician-assisted suicide” in certain 3 circumstances, while relying on different grounds and different reasoning. Justice 4 Stevens concurred in the result, explaining that all of the patient plaintiffs had died 5 during the litigation and that the majority opinion held that “Washington’s statute 6 prohibiting assisted suicide is not invalid ‘on its face[.]’ ” Id. at 739 (Stevens, J., 7 concurring). Justice O’Connor joined the majority opinion “because [she] agree[d] 8 that there is no generalized right to ‘commit suicide[,]’ ” stating that there was no 9 need to reach “the narrower question whether a mentally competent person who is 10 experiencing great suffering has a constitutionally cognizable interest in controlling 11 the circumstances of his or her imminent death” in the context of what she 12 characterized as the facial challenges presented in Glucksberg and the related case, 13 Vacco v. Quill, 521 U.S. 793 (1997).11 Glucksberg, 521 U.S. at 736 (O’Connor, J., 14 concurring). Justice Ginsburg concurred “substantially for the reasons stated by 15 Justice O’Connor.” Id. at 789 (Ginsburg, J., concurring). Justice Breyer also joined 16 Justice O’Connor’s opinion, “except insofar as it joins the majority[,]” writing 11 17 In Quill, the Supreme Court held that New York’s similar ban did not deprive 18 a similarly defined class of persons of equal protection, despite the state’s recognition 19 and protection of the right of each patient in the class to refuse lifesaving medical 20 treatment. 521 U.S. at 796-97. 92 1 separately to say that our legal tradition might protect a “right to die with dignity,” 2 at the core of which “would lie personal control over the manner of death, 3 professional medical assistance, and the avoidance of unnecessary and severe 4 physical suffering—combined[,]” and to emphasize that terminally ill patients 5 experiencing “severe physical pain” might have a constitutionally protected interest. 6 Id. at 789-91 (Breyer, J., concurring) (internal quotation marks omitted). Taking a 7 completely different approach, Justice Souter stated that “the importance of the 8 individual interest here, as within that class of ‘certain interests’ demanding careful 9 scrutiny of the State’s contrary claim, cannot be gainsaid[,]” but did not reach the 10 question whether “that interest might in some circumstances, or at some time, be seen 11 as ‘fundamental’ to the degree entitled to prevail” because he was “satisfied that the 12 State’s interests . . . [we]re sufficiently serious to defeat the present claim that its law 13 is arbitrary or purposeless.” Id. at 782 (Souter, J., concurring) (citation omitted). 14 {93} Thus, Justices O’Connor and Stevens, and Justices Ginsburg and Breyer (to the 15 extent they joined Justice O’Connor’s concurrence) viewed the majority opinion as 16 having rejected a facial challenge. The majority opinion, moreover, agreed that its 17 holding “would not ‘foreclose the possibility that an individual plaintiff seeking to 18 hasten her death, or a doctor whose assistance was sought, could prevail in a more 93 1 particularized challenge[.]’ ” Id. at 735 n.24 (quoting id. at 750 (Stevens, J., 2 concurring)).12 3 {94} I need not discuss Glucksberg in exegetical detail. Given that Lawrence and 4 Obergefell emphatically rejected an analysis of unenumerated due process liberty 5 interests upon which Glucksberg, like Bowers, relied (an analysis focusing solely on 6 the historical roots of the asserted right) and just as emphatically embraced analytical 7 principles that Glucksberg rejected (the liberty rights analysis of Casey and other 8 decisions addressing due process liberty interests), it is impossible to conclude that 9 the due process analysis applied in Glucksberg is dispositive of the issue today, even 10 as a matter of federal law. 11 {95} The assumption that a fundamental right exists only if there is a history and 12 tradition of protecting it, shared by Bowers and Glucksberg, does not comport with 13 the Supreme Court’s analysis of due process liberty rights in decisions issued before 14 and afterward. As one noted constitutional scholar has pointed out, “laws prohibiting 15 interracial marriage were far more ‘deeply rooted in this Nation’s history and 16 17 18 19 20 21 12 As Laurence Tribe has observed, “Quill, like Glucksberg, splintered the Court in a way that required the majority opinion to acknowledge that the Court’s holding left open ‘the possibility that some applications of the state statute may impose an intolerable intrusion on the patient’s freedom.’ ” Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1918 n.89 (2004) (quoting Quill, 521 U.S. at 809 n.13) (alteration omitted). 94 1 tradition’ than the right to interracial marriage, but in Loving v. Virginia, the Court 2 held that such a right is protected by the Due Process Clause. And there was no 3 deeply rooted tradition of protecting a right to abortion before Roe v. Wade. In fact, 4 abortion was illegal in forty-six states when Roe was decided.” Erwin Chemerinsky, 5 Washington v. Glucksberg Was Tragically Wrong, 106 Mich. L. Rev. 1501, 1505 6 (2008) (footnotes omitted). Furthermore, “the fact that laws have long existed does 7 not answer the question as to whether the interest the laws regulate is so integral to 8 personhood as to be worthy of being deemed a fundamental right.” Id. 9 {96} The opinion of the Court in Obergefell briefly addressed Glucksberg, in 10 rejecting respondents’ argument that petitioners’ assertion of “a new and nonexistent” 11 right was inappropriate in light of Glucksberg. See Obergefell, ___ U.S. at ___, 135 12 S. Ct. at 2602. The Court said that, although Glucksberg’s requirement that liberty 13 “must be defined in a most circumscribed manner, with central reference to specific 14 historical practices . . . may have been appropriate for the asserted right there 15 involved (physician-assisted suicide), it is inconsistent with the approach this Court 16 has used in discussing other fundamental rights[.]” Id. The majority and concurring 17 opinions in this case seize on this statement as supporting their contention that 18 Glucksberg’s analysis still applies to aid in dying. See Majority Op. ¶ 35; Concurring 95 1 Op. ¶ 58. Stating that “[i]n Obergefell, every member of the United States Supreme 2 Court . . . passed upon an opportunity to question the majority’s reference to the 3 outcome in Glucksberg or cast aspersion upon the analysis of aid in dying that was 4 utilized in Glucksberg[,]” the majority opinion represents Obergefell as providing “a 5 specific reference of approval and a brief defense of Glucksberg.” Majority Op. ¶ 35; 6 see also Concurring Op. ¶ 58. This characterization of Obergefell as an endorsement 7 of Glucksberg is specious. It ignores that there was no occasion for the Obergefell 8 Justices to question or disparage Glucksberg’s analysis of aid in dying, as the issue 9 was not before the Court. And it is exceedingly difficult to imagine how Obergefell 10 could be so understood given what the Court said next: “If rights were defined by 11 who exercised them in the past,” the Court explained, “then received practices could 12 serve as their own continued justification and new groups could not invoke rights 13 once denied.” Obergefell, ___ U.S. at ___, 135 S. Ct. at 2602. “[R]ights come not 14 from ancient sources alone. They rise, too, from a better informed understanding of 15 how constitutional imperatives define a liberty that remains urgent in our own era.” 16 Id. This view of substantive due process rights could not be more contrary to 17 Glucksberg, and the application of this principle cannot be understood to be limited 18 to the identity of the right at issue. 96 1 {97} If the Obergefell Court had applied a Glucksberg analysis, it could not have 2 identified a history and tradition protecting the right to marry another of the same sex, 3 just as it could not identify a history and tradition protecting the right to engage in 4 same-sex sodomy when it applied that restrictive analysis in Bowers. I can think of 5 no principled reason why there should be two tests for substantive due process rights; 6 one for aid in dying, and one for everything else. Although the opinion of the Court 7 in Obergefell left Glucksberg untouched (again it had no reason to reach out to 8 overrule it), the dissent correctly acknowledged that the majority’s position 9 “require[d] it to effectively overrule Glucksberg.” Obergefell, ___ U.S. at ___, 135 10 S. Ct. at 2621 (Roberts, J., dissenting). It remains to be seen, of course, what the 11 outcome would be if the Court were to address aid in dying again, but the conclusion 12 is inescapable that the United States Supreme Court itself has disclaimed the 13 substantive due process analysis upon which Glucksberg’s holding rests. 14 {98} Reams of critical analysis by numerous commentators, preeminent 15 constitutional scholars among them, also belie the State’s conclusory contention that 16 Glucksberg is not “flawed,” and so should be followed under our interstitial approach 17 to analysis of rights afforded by provisions of our Constitution that have federal 18 analogues (more on that later). See, e.g., Chemerinsky, supra, at 1506 (“The 97 1 methodology of Lawrence . . . cannot be reconciled with Chief Justice Rehnquist’s 2 restrictive view of rights under the Due Process Clause [in Glucksberg].”); Yale 3 Kamisar, Foreward: Can Glucksberg Survive Lawrence? Another Look at the End 4 of Life & Personal Autonomy, 106 Mich. L. Rev. 1453, 1455-56 (2008) (noting 5 commentary that, although the Lawrence majority did not cite Glucksberg, “the 6 aspersions Lawrence cast on Bowers inevitably fell with equal force on 7 Glucksberg—especially the narrow view of substantive due process Glucksberg 8 shared with Bowers” (footnote, internal quotation marks, and citation omitted)); 9 Tribe, supra, at 1923 (stating that Lawrence demonstrates that “[n]othing in 10 Glucksberg can fairly be understood to have cemented the Bowers transmutation into 11 our constitutional law”). 12 {99} Commentators have noted, for example, the majority’s recharacterization of the 13 right asserted by the plaintiffs. See, e.g., Ruth C. Stern & J. Herbie Difonzo, Stopping 14 for Death: Re-Framing Our Perspective on the End of Life, 20 U. Fla. J.L. & Pub. 15 Pol’y 387, 418 (2009) (“In neither the majority nor in the five concurring opinions did 16 the justices correctly or coherently define the questions presented.”). Even scholars 17 who have questioned whether Lawrence necessarily means that the United States 18 Supreme Court will recognize a right to aid in dying have described Glucksberg’s 98 1 “fragility” in light of the obvious lack of agreement among the justices, even as to the 2 precise question answered. See Kamisar, supra, at 1459-60 (noting, inter alia, that 3 Justice O’Connor really did not join the majority; that the five concurring opinions 4 “make for frustrating reading and a shaky ruling”; and that Glucksberg “may be the 5 most confusing and the most fragile 9-0 decision in Supreme Court history”). As 6 Kamisar has observed, “although Rehnquist’s opinion is called ‘the opinion of the 7 Court,’ it does not seem to deserve that designation.” Kamisar, supra, at 1462. For 8 example, “[a]lthough formally Justice O’Connor provided the much-needed fifth vote, 9 it is highly doubtful that she really did[,]” id. at 1462, and Justice Stevens’ concurring 10 opinion “is primarily a dissent.” Id. at 1464. 11 {100} The State does not address the fractured nature of Glucksberg’s concurring 12 opinions. Indeed, counsel for the State said at oral argument that he was not “properly 13 equipped to discuss . . . some of the nuanced views” stated in those opinions. And, 14 although Obergefell was not decided until after oral argument, Lawrence had been 15 decided, yet the State did not acknowledge that Lawrence unequivocally rejected the 16 rigid historical analysis upon which Bowers and Glucksberg relied exclusively, and 17 instead embraced a concept of liberty that protects “an autonomy of self,” which 18 Glucksberg disavowed. 99 1 {101} The majority and concurring opinions in this case also say nothing about the 2 impact of Glucksberg’s fractures and fragility on its authoritative value; like the State, 3 they essentially say that we should give the decision dispositive effect because it 4 exists and has not been overruled. See Majority Op. ¶ 34; Concurring Op. ¶ 58. These 5 opinions also do not address the critical commentary, offering only that “[t]he fact 6 that Glucksberg’s analytic methodology has been questioned by some legal scholars 7 does not mean the opposite of its holding must be true.” Majority Op. ¶ 34. 8 {102} But even accepting the State’s conclusory assertion that Glucksberg is not 9 “flawed,” neither the State nor the majority or concurring opinions offer any reason 10 why it should be treated as persuasive, given the United States Supreme Court’s 11 current analysis of due process liberty interests and over seventeen years of 12 experience (and evidence) with aid in dying, which the Glucksberg Court did not 13 have before it. Whatever the status of Glucksberg in the federal courts, the bottom 14 line is that it does not bind us here, and our analysis of rights afforded by the New 15 Mexico Constitution—the only source of rights invoked by Plaintiffs—is not 16 “inextricably tied” to it. See, e.g., N.M. Right to Choose/NARAL v. Johnson, 199917 NMSC-005, ¶ 37, 126 N.M. 788, 975 P.2d 841; State v. Gutierrez, 1993-NMSC-062, 18 ¶ 16, 50-56, 116 N.M. 431, 863 P.2d 1052. 100 1 C. Article II, Section 18 and Our Interstitial Approach 2 Our Supreme Court has previously interpreted the New Mexico due process {103} 3 clause more expansively than the United States Supreme Court has interpreted the 4 federal due process clause, holding in Montoya v. Ulibarri, 2007-NMSC-035, ¶ 23, 5 142 N.M. 89, 163 P.3d 476, that New Mexico’s due process clause requires that 6 habeas petitioners must be permitted to assert freestanding claims of actual 7 innocence. See also State v. Vallejos, 1997-NMSC-040, ¶ 32, 123 N.M. 739, 945 P.2d 8 957 (holding that all forms of entrapment violate New Mexico’s due process clause; 9 rejecting widely criticized U.S. Supreme Court precedent to the contrary as to the 10 federal counterpart).13 And nothing in our Supreme Court’s most recent interpretation 11 of Article II, Section 18 remotely suggests that analysis of liberty interests under New 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 Our Supreme Court has rejected federal constitutional precedent and analysis affording less protection than our own Constitution under other provisions as well. See, e.g., State v. Leyva, 2011-NMSC-009, ¶ 51, 149 N.M. 435, 250 P.3d 861 (departing from Fourth Amendment analysis when construing analogous Article II, Section 10); State v. Garcia, 2009-NMSC-046, ¶ 34, 147 N.M. 134, 217 P.3d 1032 (rejecting widely criticized United States Supreme Court decision weakening a right “beyond a point which may be countenanced under our state constitution”); State v. Rowell, 2008-NMSC-041, ¶¶ 20-23, 144 N.M. 371, 188 P.3d 95 (declining to follow United States Supreme Court decisions criticized in legal literature as “devoid of a reasoned basis in constitutional doctrine”); Gutierrez, 1993-NMSC-062, ¶¶ 32, 50-56 (discussing “a willingness to undertake independent analysis of our state constitutional guarantees when federal law begins to encroach on the sanctity of those guarantees” and rejecting federal constitutional rule as incompatible with the guarantees of the New Mexico Constitution). 101 1 Mexico’s due process clause requires the rigid adherence to historical analysis that 2 Glucksberg, like Bowers, elevated to the exclusion of all else. See Griego, 20143 NMSC-003, ¶ 2 (“Interracial marriages were once prohibited by laws in many states 4 until the United States Supreme Court declared such laws unconstitutional and 5 ordered an end to the discriminatory treatment.”); id. ¶ 58 (“Articulating the 6 governmental interest as maintaining the tradition of excluding same-gender 7 marriages because the historic and cultural understanding of marriage has been 8 between a man and a woman—cannot in itself provide a sufficient basis for the 9 challenged exclusion. To say that the discrimination is traditional is to say only that 10 the discrimination has existed for a long time.” (alteration, internal quotation marks, 11 and citation omitted)). Indeed, Griego acknowledged both Lawrence, see Griego, 12 2014-NMSC-003, ¶ 58, and the privacy right recognized in Eisenstadt, 405 U.S. at 13 453, see Griego, 2014-NMSC-003, ¶ 60 n.10. 14 {104} Thus, to the extent it is appropriate to be guided by federal law in determining 15 whether New Mexico’s due process clause protects aid in dying, the sound and 16 persuasive analysis is that which embraces the view of liberty, autonomy, and privacy 17 elucidated in the Casey/Lawrence/Obergefell line of cases and rejects the analysis of 18 Bowers and Glucksberg. Even if Glucksberg remains good law, as a matter of 102 1 federaldue process analysis, I would reject it as unpersuasive, flawed, and inadequate 2 to protect the rights of New Mexicans. Garcia, 2009-NMSC-046, ¶ 57 (Bosson, J., 3 specially concurring) (“In a government of dual sovereigns, it is imperative that our 4 state Constitution develop to its full potential and protect the rights of our citizens 5 where we deem federal law lacking.”). The State has conceded that citizens have a 6 fundamental right to make their own end-of-life decisions and stated at oral argument 7 before this Court that citizens have a fundamental right to bring about their own 8 deaths, even by stockpiling morphine prescribed by a physician and ingesting a lethal 9 dosage. The State further conceded at oral argument that it had no interest in 10 preventing suffering, mentally competent, terminally ill patients from obtaining aid 11 in dying. See Oral Argument, No. 33,360 at 4:19:15-4:19:30 (Jan. 26, 2015) (“The 12 State interest does not lie in prolonging the suffering of people who are in fact 13 terminally ill, and have made an informed, competent decision to request this sort of 14 medication. I will readily concede that the State has no interest in preventing that 15 person from obtaining this sort of assistance.” (emphasis added)); supra, at 4:18:4016 4:19:00 (“I don’t think there would be a compelling state interest in preventing a 17 person at the very end of their life who is, in fact, terminally ill and mentally 18 competent from obtaining this sort of assistance. I don’t think the statute would 103 1 survive strict scrutiny analysis. I don’t think the statute would survive an intermediate 2 scrutiny analysis, either, for largely the same reasons.”). According to the State, the 3 only conduct proscribed by Section 30-2-4 in this context is a physician’s act of 4 prescribing a lethal dosage of medication. Yet it provides no reason, other than its 5 citation to Glucksberg, why that conceded fundamental right does not include the 6 only means available to effectuate the right in a peaceful and dignified manner—a 7 lethal dosage of medication prescribed by a willing physician acting in accordance 8 with the established standard of care for aid in dying.14 Nor does 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 As Justice Souter reasoned in Glucksberg: There is . . . [another] reason for claiming that a physician’s assistance here would fall within the accepted tradition of medical care in our society, and the abortion cases are only the most obvious illustration . . . . While the Court has held that the performance of abortion procedures can be restricted to physicians, the Court’s opinion in Roe recognized the doctors’ role in yet another way. For, in the course of holding that the decision to perform an abortion called for a physician’s assistance, the Court recognized that the good physician is not just a mechanic of the human body whose services have no bearing on a person’s moral choices, but one who does more than treat symptoms, one who ministers to the patient. This idea of the physician as serving the whole person is a source of the high value traditionally placed on the medical relationship. Its value is surely as apparent here as in the abortion cases, for just as the decision about abortion is not directed to correcting some pathology, so the decision in which a dying patient seeks help is not so limited. The patients here sought not only an end to pain (which they might have had, although perhaps at the price of stupor) but an end to their short remaining lives with a dignity that they believed would be denied them by powerful pain medication, as well as 104 1 it explain or even attempt to justify why a physician’s affirmative acts of 2 administering terminal sedation and removing life-sustaining nutrition, hydration, or 3 mechanical life support—undertaken with knowledge that these acts will hasten 4 death—should be legal, while a physician’s affirmative act of writing a prescription 5 that will bring about the same result should be criminalized.15 I would hold that 6 Article II, Section 18 affords New Mexico citizens a fundamental, or at least 7 important, liberty right to aid in dying from a willing physician. 8 {105} The majority opinion asserts that “[i]n order to justify a departure from 9 Glucksberg, Plaintiffs must have shown precisely why greater fundamental due 10 11 12 13 14 15 16 by their consciousness of dependency and helplessness as they approached death. In that period when the end is imminent, they said, the decision to end life is closest to decisions that are generally accepted as proper instances of exercising autonomy over one’s own body, instances recognized under the Constitution and the State’s own law, instances in which the help of physicians is accepted as falling within the traditional norm. 17 Glucksberg, 521 U.S. at 779 (citations omitted). 18 19 20 21 22 23 24 15 See Chemerinsky, supra, at 1508 (“Turning off a respirator, removing a feeding tube, stopping medication that keeps a person’s blood pressure at a level to sustain life; all are affirmative acts. Both are intended to end a person’s life—and both will have that effect. The [Glucksberg] argument invokes a familiar distinction between omission and commission, but this distinction is inapposite here because ending treatment and administering substances to end life are both acts of commission with the same purpose and effect.”). 105 1 process protections exist under Article II, Section 4.” Majority Op. ¶ 34. It asserts that 2 “we should continue to be very careful when considering new constitutional interests 3 and remain reluctant to deviate from United States Supreme Court determinations of 4 what are, and what are not, fundamental constitutional rights.” Id. ¶ 35. It assigns 5 Plaintiffs the burden to cite authority for the proposition that “ ‘death’ or ‘aid in 6 dying’ in New Mexico have either been recognized as embedded principles within 7 our democratic society or as a modern interpretation of certain fundamental interests 8 that have been applied to some members of society but historically denied to others.” 9 Id. ¶ 36. No authority is cited for any of these propositions. I am aware of none. These 10 and other statements in the majority and concurring opinions reflect a profound 11 misunderstanding of our interstitial approach to state constitutional analysis. 12 {106} For example, the majority opinion asserts that “there is no basis under the 13 Gomez factors to permit the creation of an interstitial constitutional right under 14 Article II, Section 4 of the New Mexico Constitution.” Majority Op. ¶ 43. But we use 15 interstitial analysis to determine whether we should follow federal precedent in 16 interpreting provisions of our Constitution that have federal analogues. See, e.g., 17 Gomez, 1997-NMSC-006, ¶¶ 16, 21-23. Section 18’s due process clause has a federal 18 counterpart; Section 4 does not. I agree with the district court that Section 4 is a 106 1 distinctive characteristic of our Constitution that provides a basis to depart from 2 federal precedent in determining the due process rights protected by Section 18. See 3 NARAL, 1999-NMSC-005, ¶¶ 28-43 (concluding that distinctive characteristics of the 4 New Mexico Constitution—the Equal Rights Amendment—required rejection of 5 federal equal protection analysis affording less protection). I reject any suggestion 6 that our interstitial analysis requires that we must give federal due process precedents 7 dispositive effect in determining the inherent rights afforded by Section 4. 8 {107} I also reject the concurring opinion’s characterization of our interstitial 9 approach as “narrow” and as permitting departure from federal precedent based only 10 on a flawed federal analysis, structural differences between state and federal 11 government, or distinctive state characteristics. See Concurring Op. ¶ 58. These 12 grounds were stated in Gomez, of course, 1997-NMSC-006, ¶ 19, and have been 13 frequently cited since then. But our Supreme Court has subsequently described these 14 grounds as merely examples of reasons warranting departure from federal precedent. 15 See Leyva, 2011-NMSC-009, ¶ 40 n.6 (describing these three grounds as “examples 16 of reason for departure”); id. ¶ 49. 17 {108} The majority opinion appears to confuse the requirements for preserving a 18 claim predicated on a provision of our Constitution that has a federal counterpart with 107 1 the parameters that inform our decision whether to follow federal precedent in 2 determining whether the state constitutional provision protects the right asserted. See 3 Majority Op. ¶¶ 23, 34. There is no preservation issue here. Plaintiffs have not 4 brought a claim under the federal Constitution. They have identified the provisions 5 of our Constitution that they believe protect the right they assert. They have explained 6 why they believe that each provision protects the right. They have stated reasons why 7 we should not follow Glucksberg and why they believe that our Constitution provides 8 broader protection than the federal Constitution. Our interstitial approach requires no 9 more; in fact, it requires less. See Leyva, 2011-NMSC-009, ¶ 49 (noting that citation 10 to the state constitutional provision invoked is sufficient). 11 {109} Our interstitial approach does not require (or even permit) us to treat 12 Glucksberg as dispositive of this case simply because it exists. See Gomez, 199713 NMSC-006, ¶ 17; see also Arizona v. Evans, 514 U.S. 1, 8 (1995) (“[S]tate courts are 14 absolutely free to interpret state constitutional provisions to accord greater protection 15 to individual rights than do similar provisions of the United States Constitution.”). 16 It obligates us to consider whether the federal analysis articulated in Glucksberg is 17 persuasive because its underlying reasoning “is better calibrated to protect the rights 108 1 of individuals” in this state from unwarranted government intrusion. Leyva, 20112 NMSC-009, ¶ 53. It is not. 3 D. Article II, Section 4 of the New Mexico Constitution 4 Plaintiffs also assert a right to aid in dying under the New Mexico {110} 5 Constitution’s inherent rights guarantee, which provides, “All persons are born 6 equally free, and have certain natural, inherent and inalienable rights, among which 7 are the rights of enjoying and defending life and liberty, of acquiring, possessing and 8 protecting property, and of seeking and obtaining safety and happiness.” N.M. Const. 9 art. II, § 4. Section 4 has been sparsely interpreted. See Reed v. State ex rel. Ortiz, 10 1997-NMSC-055, ¶ 105, 124 N.M. 129, 947 P.2d 86 (recognizing that “[o]ur courts 11 have not fully defined the scope of this constitutional provision”), rev’d sub nom. on 12 other grounds by New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998). But that 13 surely does not mean that its text may simply be read out of the Constitution. See 14 Hannett v. Jones, 1986-NMSC-047, ¶ 13, 104 N.M. 392, 722 P.2d 643 (noting that 15 the Constitution must be “construed so that no part is rendered surplusage or 16 superfluous”); cf. Johnson v. Craft, 87 So. 375, 386 (Ala. 1921) (“The Constitution 17 contains no idle assertions, no meaningless language, [and] no ephemeral 18 purpose[.]”). 109 1 {111} Nor does it mean that its scope is defined by and limited to the circumstances 2 in which it has previously been invoked, as the State appears to suggest. The State 3 cites Lucero v. Salazar, 1994-NMCA-066, ¶ 7,117 N.M. 803, 877 P.2d 1106, for the 4 proposition that “mere references to the right to enjoy life and to seek and obtain 5 safety and happiness are not sufficient to serve as a basis for a waiver of immunity 6 under [the New Mexico Tort Claims Act].” Lucero relied on Blea v. City of Espanola, 7 1994-NMCA-008, ¶ 20, 117 N.M. 217, 870 P.2d 755, which stated that “vague 8 references to safety or happiness in [A]rticle II, Section 4 . . . are not sufficient to 9 state a claim under [the New Mexico Tort Claims Act].” Blea made clear, however, 10 that the issue in that case was “not what our [C]onstitution protects or does not 11 protect[,]” but “the scope of the acts for which the [L]egislature has waived 12 immunity.” Id. These cases have no bearing on the question presented here, which 13 quite obviously requires us to determine what our Constitution protects in this 14 context. 15 {112} Equally clear is that this case involves a great deal more than a vague reference 16 to “safety and happiness.” Far more significant, and relevant here, is that the framers 17 of our Constitution saw fit to include in their enumeration of rights guaranteed as 18 “inherent” the right—and agency to effectuate the right—to “enjoy[] and defend[]” 110 1 their own “li[ves] and liberty” against unjustified intrusions by the government. N.M. 2 Const. art. II, § 4. Section 4 is no mere “ornament,” as one amicus declares. To the 3 contrary, Griego begins by quoting its text in full, emphasizing the primacy of the 4 inherent rights provision in any consideration of the liberty rights of our citizens. See 5 2014-NMSC-003, ¶ 1. And Griego instructs that “[w]hen government is alleged to 6 have threatened any of these rights, it is the responsibility of the courts to interpret 7 and apply the protections of the Constitution.” Id. 8 {113} I think it is plain that Section 4 supplements and expands the liberty rights 9 afforded by Section 18’s due process clause to ensure maximum protection for the 10 lives and liberty of New Mexicans. The express textual rights to “enjoy[] and 11 defend[]” these interests can mean nothing less. I would hold that, whether construed 12 on its own terms as a constitutional provision with no federal analogue, or deemed 13 a “distinctive characteristic” of the New Mexico Constitution mandating rejection of 14 a federal constitutional analysis affording less protection, see, e.g., NARAL, 199915 NMSC-005, ¶¶ 28-43, Section 4 affords New Mexico citizens the right and agency 16 to defend their lives and liberty by availing themselves of aid in dying, as that term 17 is defined herein. 111 1 {114} Relying on a dictionary definition of “life,” the majority opinion recasts the 2 liberty interest asserted by Plaintiffs as “an implied fundamental interest in hastening 3 another person’s death” and then declines to recognize it “because such an interest 4 is diametrically opposed to . . . life.” Majority Op. ¶ 39 (alteration, internal quotation 5 marks, and citation omitted); see also Concurring Op. ¶ 59. Despite the contrary 6 stipulated record, the opinion seems to equate the dying and suffering patient who 7 seeks aid in dying with a person who wishes to commit suicide, and her doctor with 8 any miscreant who counsels another to commit suicide against her will. See Majority 9 Op. ¶ 40 (citing, inter alia, Commonwealth v. Bowen, 13 Mass. 356 (1816)). This re10 characterization ignores the distinctions between suicide and aid in dying established 11 by the trial testimony and reflects a shocking disrespect for the individuals whose 12 circumstances would bring them to seek aid in dying, individuals who would live if 13 they could, but whose terminal illnesses will not allow them to do so. For these 14 individuals, “death” is imminent, and “life” means being forced to endure unbearable 15 suffering until it ends. The majority’s characterization of aid in dying as contrary to 16 the interest in “life” protected by the inherent rights guarantee, see also Concurring 17 Op. ¶ 59, also misapprehends the nature of the liberty interest asserted by Plaintiffs, 18 and ignores that Article II, Section 4 protects the right to “liberty” as well as to life, 112 1 and the right to defend that liberty against unjustified government intrusion. Having 2 declared what amounts to lock-step adherence to federal due process precedent, the 3 majority and concurring judges ought to consider that under federal law, “a State’s 4 interest in the protection of life falls short of justifying any plenary override of 5 individual liberty claims.” Casey, 505 U.S. at 857 (citing, inter alia, Cruzan, 497 U.S. 6 at 278). They should also consider the record in this case, which establishes that the 7 State has articulated no basis, and concedes none exists, for intruding into the liberty 8 interests of mentally competent, terminally ill New Mexicans to seek aid in dying, as 9 discussed further below. 10 III. THE ASSERTED STATE INTERESTS 11 The determination that our Constitution affords New Mexicans a right to aid {115} 12 in dying does not end the matter. The next question is whether the State has carried 13 its burden to prove that Section 30-2-4’s infringement of that right is constitutionally 14 justified. See Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 12, 137 N.M. 734, 15 114 P.3d 1050. We apply strict scrutiny when the interest at issue is a “fundamental 16 personal right or civil liberty” guaranteed by the Constitution. Marrujo v. N.M. State 17 Highway Transp. Dep’t, 1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747. Strict 18 scrutiny requires the government to prove that the infringing statute is narrowly 113 1 tailored to serve a compelling governmental interest. Id. ¶¶ 10-11. Intermediate 2 scrutiny, which applies when legislation infringes on important but not fundamental 3 rights, requires the government to prove that the infringing statute is substantially 4 related to an important governmental interest. Id. Relying on Glucksberg, the State 5 presumes, as does the concurring opinion, that the less stringent rational basis 6 standard applies here. That standard requires the party asserting the right to show that 7 the statute is not rationally related to a legitimate governmental interest. See Marrujo, 8 1994-NMSC-116, ¶¶ 10-12 (describing the three levels of scrutiny applicable to 9 review of equal protection and substantive due process claims). On this record, I 10 would conclude that Section 30-2-4, as applied to aid in dying, does not survive 11 scrutiny under any standard. 12 {116} Throughout this litigation, the State has relied exclusively on the governmental 13 interests asserted by the State of Washington in Glucksberg: (1) preserving life; (2) 14 “protecting the integrity and ethics of the medical profession”; (3) “ensuring adequate 15 regulation of the practice”; and, for the first time on appeal, (4) preventing suicide 16 and treating its causes. Beyond simply reciting these interests, the State has made 17 virtually no effort to explain how any of them justify applying Section 30-2-4 to aid 114 1 in dying in New Mexico.16 As noted, the State stipulated to the entirety of the 2 evidence presented in the district court. It did not challenge any of the evidence as 3 flawed or unsupported, nor did it call any witnesses or provide any evidence of its 4 own. The State further conceded at oral argument that other than an interest in 5 preventing the “hypothetical potential for abuse,” it had no interest—compelling or 6 substantial or otherwise—in preventing suffering, mentally competent, terminally ill 7 patients from obtaining aid in dying. Nor could it cite a single instance of abuse in 8 any United States jurisdiction where aid in dying is legal—including in Montana, 9 which has no legislatively enacted regulatory framework and is governed entirely by 10 the medical profession’s standard of care. The State merely incants Glucksberg, as if 11 it held talismanic significance. But the State may not claim substantial or compelling 12 interests without providing any such evidence; on that basis alone, Section 30-2-4’s 13 14 15 16 17 18 19 20 21 22 23 16 Like the State, the majority and concurring opinions rely only on the broadly stated governmental interests set forth in Glucksberg, and like the State, they provide no analysis explaining how those interests justify denying the right to aid in dying. See Majority Op. ¶ 37; Concurring Op. ¶ 61. Nor do the opinions reconcile their position with the State’s stipulation to the entire factual record and the State’s concession that it has no interest in “prolonging the suffering of people who are terminally ill.” To the extent that the majority and concurring opinions discuss aid in dying as “a matter of relatively recent human phenomena,” Majority Op. ¶ 37; Concurring Op. ¶ 62, it is unclear why this itself poses an obstacle. If the concern is lack of information, there is now almost twenty years of data that the Glucksberg Court did not have. 115 1 prohibition on aid in dying fails under heightened scrutiny. See Griego, 2014-NMSC2 003, ¶ 57 (“[T]he party with the burden of proof in a constitutional challenge must 3 support his or her argument with a ‘firm legal rationale’ or evidence in the record.”). 4 And even under the rational basis standard, the State must do more than cite to 5 interests asserted by another state more than seventeen years ago—at least in this 6 case, in which it has stipulated to a record that demonstrates that the concerns raised 7 in Glucksberg have not materialized in states that allow aid in dying. Below, I address 8 the State’s broadly asserted interests, as well as those raised by amici for the State, 9 in light of Plaintiffs’ uncontradicted evidence and the State’s concessions. 10 A. Interests in Life and Preventing Suicide 11 No one doubts, as a general abstract matter, that the government has a {117} 12 compelling interest in preserving human life. The specific question presented in this 13 case, however, is whether the State has a compelling—or substantial—interest in 14 prolonging the lives of mentally competent, terminally ill patients, the quality of 15 whose lives can no longer be meaningfully improved by treatment, and whose dying 16 process is so intolerable that they wish to end their lives. The State is unable to 17 articulate an interest in prolonging life in this narrow circumstance and concedes that 18 it has no interest in preventing the terminally ill from hastening their deaths and 116 1 avoiding painful, undignified, and inhumane endings to their lives. And the State 2 does not dispute that when a patient is close to the end of life and suffering 3 intractable, unrelenting pain, it is legal and ethical for her physician to sedate her and 4 maintain her in a state of deep, continuous unconsciousness to the time of death, with 5 or without providing artificial hydration or nutrition, thereby hastening death. 6 {118} Nor does the law treat the safeguarding of human life as a governmental 7 interest that is absolute, subject to no exceptions. For example, under current New 8 Mexico law and United States Supreme Court precedent, any patient may refuse or 9 withdraw life-sustaining treatment, may voluntarily stop eating and drinking, and may 10 obtain from a qualified physician medication that will deeply sedate her—and thereby 11 hasten death—to alleviate suffering. See generally §§ 24-7A-1 to -18 (expanding the 12 right to withdraw or withhold life-sustaining treatment to all medical decisions and 13 all patients); Glucksberg, 521 U.S. at 736-37 (O’Connor, J., concurring) (“[A] patient 14 who is suffering from a terminal illness and who is experiencing great pain has no 15 legal barriers to obtaining medication, from qualified physicians, to alleviate that 16 suffering, even to the point of causing unconsciousness and hastening death.”); 17 Cruzan, 497 U.S. at 279 (assuming a constitutionally protected right for those who 18 are on life support to have it ended). Thus, some decisions to end one’s life 117 1 intentionally through termination or refusal of treatment are clearly regarded as 2 worthy of protection, and this is so even where the assistance of a physician is 3 required. These settled constitutional and statutory rights necessarily acknowledge 4 a diminished governmental interest in the protection of life under certain 5 circumstances.17 See Compassion in Dying v. Washington, 79 F.3d 790, 820 (9th Cir. 6 1996) (en banc) (“When patients are no longer able to pursue liberty or happiness and 7 do not wish to pursue life, the state’s interest in forcing them to remain alive is clearly 8 less compelling.”), rev’d on other grounds by Glucksberg, 521 U.S. at 709. I would 9 hold that the State’s mere assertion of a general interest in the preservation of life 10 cannot outweigh the constitutionally protected liberty interest of a mentally 11 competent, terminally ill patient to aid in dying. See Casey, 505 U.S. at 857 (“[A] 12 State’s interest in the protection of life falls short of justifying any plenary override 13 of individual liberty claims.” (citing inter alia Cruzan, 497 U.S. at 278)). 14 {119} The State’s asserted interest in “preventing suicide and treating its causes,” 15 raised for the first time on appeal, is unquestionably significant but irrelevant in this 16 17 18 19 20 17 The United States Supreme Court has identified similarly shifting state interests at the other end of the spectrum of life. See Roe, 410 U.S. at 155; Casey 505 U.S. at 860, 869-73 (affirming the central holding of Roe). Thus, as the government’s interest in life increases during the course of a pregnancy, see Casey, 505 U.S. at 86973, so it diminishes when a suffering patient faces near and imminent death. 118 1 case. Unrebutted expert testimony at trial established that the practice of aid in dying 2 bears almost no medical or psychological overlap with suicide, as the two phenomena 3 are fundamentally distinct mental and physical processes. Patients who request aid 4 in dying do so because they are suffering from a terminal and incurable physical 5 condition, rather than from a temporary, treatable mental pathology, as is typical of 6 suicide. In addition, the collaboration between a physician and terminally ill patient 7 over time reflects a deliberative, rational process intended to preserve the patient’s 8 sense of self and coherent self-image; the antithesis of the impulse-driven, self9 destructive behavior of the mentally unstable person who commits suicide. See, e.g., 10 Roy F. Baumeister, Suicide as Escape from Self, Psychological Review, Vol. 97, No. 11 1 at 90 (1990). Unlike the suicidal person whose psychiatric disorder is amenable to 12 treatment, the terminally ill patient wants to live but cannot because incurable disease 13 makes near-term death inescapable. The State itself admits that individuals seeking 14 aid in dying “are patients who, if the option were available to them, would continue 15 to live a full and rewarding life.” Furthermore, the families of terminally ill patients 16 requesting aid in dying tend to be more prepared for, and at peace with, the deaths of 17 their loved ones, and they are often gathered to say farewell; this is in contrast to the 119 1 feelings of shock, blame, guilt, anger, and/or shame that often accompany death by 2 suicide. 3 {120} This unchallenged expert testimony is supported by amici New Mexico 4 Psychological Association and the American Medical Women’s Association, 5 American Medical Students Association, and New Mexico Public Health Association, 6 who agree that the reasoning on which a mentally competent, terminally ill person 7 bases a decision to end his or her life is distinct from the reasoning a clinically 8 depressed person uses to justify suicide. As Justice James C. Nelson eloquently 9 summarized in Baxter v. Montana, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 “Suicide” is a pejorative term in our society. . . . The term denigrates the complex individual circumstances that drive persons generally—and, in particular, those who are incurably ill and face prolonged illness and agonizing death—to [seek aid in dying]. The term is used to generate antipathy, and it does. [The patients seeking aid in dying] do not seek to commit “suicide.” Rather, they acknowledge that death within a relatively short time is inescapable because of their illness or disease. And with that fact in mind, they seek the ability to self-administer, at a time and place of their choosing, a physician-prescribed medication that will assist them in preserving their own human dignity during the inevitable process of dying. Having come to grips with the inexorability of their death, they simply ask the government not to force them to suffer and die in an agonizing, degrading, humiliating, and undignified manner. They seek nothing more nor less[.] 24 2009 MT 449, ¶ 71, 354 Mont. 234, 224 P.3d 1211 (Nelson, J., specially concurring). 120 1 {121} I conclude that, although the State’s interests in preserving life and preventing 2 suicide may be compelling or substantial in the abstract, these broadly stated general 3 interests are insufficient to justify infringing the right to aid in dying. Given the 4 State’s stipulations and concessions in this case, there is no basis for a contrary 5 conclusion. 6 B. The Integrity of the Medical Profession and Adequate Regulation 7 The State makes three arguments concerning its interest in the integrity of the {122} 8 medical profession and the necessity for regulations: (1) Glucksberg recognized the 9 interest; (2) there are no preexisting legislative definitions of “mentally competent” 10 and “terminally ill”; and (3) there is no regulation of the manner in which a patient 11 makes the request. The stipulated factual record undercuts these arguments, and the 12 State’s unsupported conclusions are insufficient to justify Section 30-2-4’s 13 prohibition against aid in dying. 14 {123} The State’s reliance on Glucksberg’s stated concerns about protecting the 15 integrity and ethics of the medical profession is unavailing. First, to the extent that 16 the Glucksberg Court generally accepted that “the American Medical Association, 17 like many other medical and physicians’ groups, has concluded that physician18 assisted suicide is fundamentally incompatible with the physician’s role as healer[,]” 121 1 521 U.S. at 731 (alteration, internal quotation marks, and citation omitted), that view 2 began to shift significantly within the medical community soon after Glucksberg was 3 decided. In fact, by 2005, two national surveys revealed that a majority of polled 4 rank-and-file physicians believed it to be ethical for a doctor to assist a competent, 5 dying patient hasten death.18 Two months ago, the California Medical Association, 6 representing more than 40,000 physicians in that state, removed its historic opposition 7 to a bill that would allow doctors to prescribe lethal doses of medication to terminally 8 ill patients. California Medical Association Removes Opposition to Physician Aid in 9 Dying Bill (May 20, 2015), available at http://www.cmanet.org/news/ 10 press-detail/?article=california-medical-association-removes. Regardless, a ruling 11 holding that the New Mexico Constitution protects the right to aid in dying would not 12 compel any physician to provide aid in dying. 13 14 15 16 17 18 19 20 21 22 23 18 See The Jewish Theological Seminary, Physician-Assisted Suicide Survey, available at http://www.jtsa.edu/x5533.xml (finding that 57% of 1,088 physicians polled believed aid in dying ethical); News & Innovations, 20 J. Pain and Palliative Care Pharmacotherapy 83, 92 (2006) (finding that a majority of 677 physicians and 1,057 members of the public polled believed that physicians should be permitted to practice aid in dying). Most recently, in a survey of 17,000 American physicians representing 28 medical specialties, a majority stated the belief that patients with an “incurable and terminal” disease should have the option to choose aid in dying. Medscape Ethics Report 2014, Part 1: Life, Death, and Pain, at 2 (December 16, 2014), available at http://www.medscape.com/features/slideshow/public/ ethics2014-part1#1. 122 1 {124} Second, the stipulated record in this case includes evidence of the experience 2 with aid in dying in Oregon, Washington, Montana, and Vermont;19 uncontroverted 3 opinion evidence of medical ethicists and practitioners informed by the experience 4 in United States jurisdictions with legalized aid in dying; and specific evidence 5 concerning current palliative care and palliative/terminal sedation practices. And this 6 evidence (almost two decades worth) proves that the medical profession has not 7 become corrupted or compromised in any respect in jurisdictions where aid in dying 8 is allowed. Cf. Casey, 505 U.S. at 863-64 (explaining that the decisions in West Coast 9 Hotel Co. v. Parrish, 300 U.S. 379 (1937), and Brown v. Board of Education, 347 10 U.S. 483 (1954), “each rested on facts, or an understanding of facts, changed from 11 those which furnished the claimed justifications for the earlier constitutional 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 For example, the Oregon Health Authority recently produced its 2014 annual “Death with Dignity Act - 2014” report, which identifies the number of prescriptions written, number of deaths, patient characteristics, physician characteristics, type of medications, complications, data analysis, and end-of-life concerns, along with historical, legal and statutory challenges, from the time of the law’s enactment in1998 through February 2, 2015, and includes supporting documents. Oregon Public Health Division, Oregon’s Death With Dignity Act - 2014, available at https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/D eathwithDignityAct/Pages/index.aspx. The Washington Department of Health similarly issued its fifth annual report containing much of the same information. Washington State Department of Health 2013 Death With Dignity Act Report, Executive Summary, available at http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109-DeathWithDignityAct 2013.pdf. 123 1 resolutions[,]” and that “[i]n constitutional adjudication as elsewhere in life, changed 2 circumstances may impose new obligations, and the thoughtful part of the Nation 3 could accept each decision to overrule a prior case as a response to the Court’s 4 constitutional duty”). 5 {125} Third, the State ignores the fact that, for all practical purposes, physicians 6 already participate in helping terminal patients to end their lives. Some doctors do this 7 by ending medical care necessary to sustain life. And, as explained above, when 8 doctors terminally sedate patients, they know that they are “hastening that moment 9 at which that death will occur.”20 The State has not cited any example where the 10 integrity and/or ethics of the medical profession have been called into question in 11 jurisdictions in which aid in dying is practiced; the unspecified concern it adverts to 12 here is speculative and bereft of evidentiary support. 13 {126} The State’s asserted interest in adequate regulation rests on the flawed premise 14 that such legislation is required. As a legal matter, the existence of regulations is 15 surely not a prerequisite to the recognition of a constitutional right. As a factual 16 17 18 19 20 21 20 See also Roger S. Magnusson, “Underground Euthanasia” & the Harm Minimization Debate, 32 J.L. Med. & Ethics 486, 486 (2004) (“A national survey of 1092 American physicians found that 3.3 percent had written at least one ‘lethal prescription,’ while 4.7 percent had provided at least one lethal injection. A survey of American oncologists found that 3.7 percent had performed euthanasia, while 10.8 percent had [provided aid in dying].” (footnote omitted)). 124 1 matter, medical care is typically governed by professional standards of practice, not 2 by statutes or court decisions that either prohibit or provide affirmative authorization 3 for specific types of care. See 61 Am. Jur. 2d Physicians, Surgeons, & Other Healers 4 § 187 (2015); see also Pharmaseal Labs. Inc. v. Goffe, 1977-NMSC-071, ¶ 14, 90 5 N.M. 753, 568 P.2d 589 (discussing a physician’s obligation to adhere to recognized 6 standards of medical practice in the community); Gonzales v. Oregon, 546 U.S. 243, 7 271 (2006) (noting that the development of best practices in medicine—also referred 8 to as the standard of care—is left to physicians and regulated by the states). 9 {127} Dr. Kress, who practices aid in dying in Montana, which has no regulatory 10 framework, testified at length about how doctors in that state would be liable for 11 malpractice were they to prescribe the medication without “tapping into” the existing 12 standard of care for aid in dying that has developed over seventeen years of clinical 13 experience in Oregon. Today, that established standard of care, which the State does 14 not dispute exists and to which physicians in New Mexico would be held, includes 15 the requirements that an eligible patient for aid in dying must be a terminally ill, 16 mentally competent adult who has made repeated requests over multiple visits, and 17 who is able to self-administer the medication. Mental competence means that the 18 patient does not have any gross cognitive or psychological impairment and that she 125 1 understands the nature of the illness and the proposed treatments, including any 2 alternatives such as hospice care and pain control, and the potential risks and 3 probable results of taking the medication that will result in her death. Thus, for 4 example, a patient with Alzheimer’s disease or a brain cancer that affects cognition 5 is not eligible for aid in dying. In addition, the standard of care for providing aid in 6 dying directs, in part, that a patient is terminally ill when she has less than six months 7 to live; that to establish terminality, two physicians must agree to the diagnosis; and 8 that the patient must be able to understand the information presented to her and to 9 make a reasoned decision. I also view as significant the trial testimony about a 10 doctor’s relationship with her patient and the often lengthy process of caring for 11 someone who has a terminal illness. 12 {128} In addition to civil liability for failing to comply with the standard of care, as 13 Dr. Kress described, all doctors in New Mexico are subject to regulation by the state 14 medical board, which has been tasked by the Legislature with protecting the public 15 from “the improper, unprofessional, incompetent and unlawful practice of medicine,” 16 and which supervises the profession by licensing competent physicians and by 17 disciplining those whose performance falls below its requirements. NMSA 1978, 18 § 61-6-1 (2003). Discipline for gross negligence includes the revocation or 126 1 suspension of a license to practice medicine in New Mexico. NMSA 1978, § 61-62 15(A), (D)(12) (2008). 3 {129} The State’s attempt to justify the blanket prohibition of a liberty interest that 4 it concedes is “important and fundamental,” solely on the basis that the Legislature 5 has not enacted legislation to ward off dangers that have not before materialized, is 6 without merit. Such an approach would obliterate constitutional recognition and 7 protection of virtually any liberty interest requiring the intervention of the medical 8 profession, including the right found in Roe, 410 U.S. at 155, and affirmed in Casey, 9 505 U.S. at 846. Although I conclude that the need for regulation of aid in dying is 10 not necessary given the existing standard-of-care framework, the Legislature is free 11 to enact appropriate guidelines to ensure that only the terminally ill who make a 12 voluntary and informed decision may receive aid in dying. What it may not do is 13 intrude upon the doctor-patient relationship21 as it relates to the constitutional right 14 to aid in dying by criminalizing the provision of aid in dying by a willing physician 15 at the request of a mentally competent, terminally ill patient. 16 C. Abuse of Vulnerable Populations and Slippery Slope 21 17 Here, as in the context of reproductive autonomy, “[w]hatever constitutional 18 status the doctor-patient relation may have as a general matter, in the present context 19 it is derivative of the [patient]’s position” and “is entitled to the same solicitude it 20 receives in other contexts.” Casey, 505 U.S. at 884. 127 1 {130} At oral argument, the State acknowledged that preservation of life was “a pretty 2 weak interest” when applied to terminally ill patients but said that the interest in life 3 extended to potential areas of abuse. Although the State admitted that this was a 4 “phantom concern” and that “the sky has not fallen,” the State’s amici cite interests 5 in protecting vulnerable individuals, including the elderly and disabled, from 6 exploitation and abuse, and in avoiding a slippery slope to “non-voluntary 7 euthanasia.”22 8 {131} Abuse of any sort is, of course, a legitimate governmental concern in general, 9 but this “interest” is far too abstract to justify infringement of the constitutional right 10 to aid in dying. First, the detailed protocols and established standard of 11 care—requiring, among other things, the mental competence and informed consent 12 of the patient, ability of the patient to self-administer the medication, a diagnosis of 13 terminal illness by two physicians, and repeated requests with waiting periods in 14 between—undeniably guard against the speculative dangers that amici raise. 15 Moreover, amici fail to explain how the circumscribed right to aid in dying would 16 17 18 19 20 22 Non-voluntary euthanasia is defined as causing or hastening the death of “an incompetent, and therefore nonconsenting, person; euthanasia that occurs when the person killed is incapable of either making or refusing to make a request to be killed.” Black’s Law Dictionary (10th ed. 2014). Non-voluntary euthanasia has nothing to do with the practice of aid in dying. 128 1 increase the frequency of elder abuse and disproportionately affect the poor and 2 disabled. 3 {132} And again, as previously noted, the State and amici have not provided a single 4 example of abuse in any United States jurisdiction where aid in dying is legal. The 5 record contains no such evidence, and almost two decades of substantial data from 6 Oregon and elsewhere are to the contrary. See Or. Pub. Health Div., Oregon’s Death 7 with Dignity Act Rep. (2014); Wash. State Dept. of Health, 2013 Death with Dignity 8 Act Rep., Exec. Summary (2014). According to the data and evidence described 9 above, issues of coercion, insidious bias, and societal indifference have not occurred 10 and have not threatened the safety of people who are poor, elderly, uninsured, or 11 disabled.23 See Oregon’s Death with Dignity Act Rep., supra, at 1-6; Wash. State 12 Dept. of Health 2013 Death with Dignity Act Rep., supra, at 1-12; see also Margaret 13 P. Battin, et al., Legal Physician-Assisted Dying in Oregon and the Netherlands: 14 Evidence Concerning the Impact on Patients in “Vulnerable” Groups, 33 J. Med. 15 Ethics 591, at 591 (2007) (finding no evidence of “heightened risk” to patients with 16 17 18 19 20 21 23 Amici’s related argument concerning the increase in the number of physicianassisted deaths in the Netherlands and Belgium is inapplicable to the issue before us for a host of reasons including, most notably, the fact that those countries practice euthanasia and do so under an entirely different set of laws and standards. For the same reason, the concurring opinion’s citation to a New Yorker article concerning euthanasia in Belgium, see Concurring Op. ¶ 64 n.9, is also inapt. 129 1 non-terminal physical disabilities or mental disabilities or other vulnerable groups). 2 Rather, patients who have ingested the medication are overwhelmingly white, 3 married, college-educated, insured, receiving hospice services, and dying of cancer 4 or ALS (commonly referred to as Lou Gehrig’s disease). See Oregon’s Death with 5 Dignity Act Rep., supra, at 4-5; Wash. State Dept. of Health 2013 Death with Dignity 6 Act Rep., supra, at 1. Nearly all patients pass away at home, and complications are 7 rare, occurring in less than three percent of all cases. See Oregon’s Death with 8 Dignity Act Rep., supra, at 2, 5; Wash. State Dept. of Health 2013 Death with 9 Dignity Act Rep., supra, at 1, 9. 10 {133} Trial experts testified that the potential for mistaken diagnoses are low. 11 Physicians have established referral pathways to learn about safe ways to prescribe 12 the medication, including methods for ensuring terminality and competency—medical 13 diagnoses and determinations they are historically and routinely called upon to make 14 outside the context of aid in dying. For instance, physicians frequently assess 15 competency in order to obtain informed consent for surgical and other medical 16 procedures. Doctors are typically capable of differentiating between clinical 17 depression and a sincere, informed decision to seek aid in dying, and they are 18 required by the standard of care to take a patient-centered approach to the issue, 130 1 ensuring that all options have been meaningfully discussed by first exploring a 2 patient’s needs and fears related to death from terminal illness. Physicians also have 3 experience diagnosing terminality before changing a patient’s model of care from 4 curative to hospice and before terminally sedating any patient. Some amici assert that 5 doctors “often get terminality wrong in determining eligibility for hospice care.” But 6 they offer no supporting evidence, and the statement ignores the fact that we entrust 7 doctors to make these judgments every day in accordance with the relevant standards 8 of care in the medical profession. That some people may defy the odds and that 9 doctors may be wrong from time to time are not reasons to deny to all New Mexicans 10 a constitutional right to aid in dying. No diagnosis is fool proof. But the law does not 11 require 100% certainty. The United States Supreme Court in Casey drew a line based 12 on estimated time of fetal viability. Estimates of end-of-life are functionally no 13 different. 14 {134} In my view, the potential for abuse is far more likely in other circumstances not 15 proscribed by law. For example, the State suggested at oral argument that patients 16 could legally stockpile their medication and ingest it to end their lives. And, as 17 discussed, doctors already help patients end their lives by withholding essential 18 medical care and by practicing terminal sedation, neither of which are subject to 131 1 statutory regulation or to any reporting or recording requirements. Further, experts 2 presented uncontested testimony that patients are sometimes sedated to death 3 according to the instructions of physicians or surrogate decision makers, without the 4 patient’s explicit consent and without anyone “knowing what the patient would 5 exactly want because the illness itself or the treatment has rendered them past [the] 6 point of competency.” It is hard to imagine that aid in dying makes the potential for 7 abuse any more likely than do these practices; indeed, these practices could well 8 create a greater risk of abuse. As noted constitutional scholar Erwin Chemerinsky put 9 it, bluntly: 10 11 12 13 14 15 16 Indeed, the same concern [about abuse] can be raised about the right to refuse medical care. A person could choose to terminate treatment because of pressure from family members or to reduce their emotional or financial burdens. Notwithstanding this concern, the [United States Supreme] Court recognized a right to refuse medical care in Cruzan. There is no reason why the concern is weightier or more powerful in the context of [aid in dying]. 17 18 19 20 21 Besides, if the concern is pressure, the solution should be to lessen the risk of pressure, not to prohibit [aid in] dying. And if the government is concerned that individuals might feel pressure to save their families from large expenses, then the government should ensure that the costs of medical care are adequately covered. 22 Chemerinsky, supra, at 1512. 132 1 {135} The unsupported assertions of the State and its amici about potential abuses are 2 questionable, at best. The speculative possibility that vulnerable individuals might be 3 induced or coerced to hasten their deaths cannot justify denying to all New Mexicans 4 the constitutional right to aid in dying. 5 {136} Finally, amici raise a host of slippery slope arguments, including that aid in 6 dying will assuredly lead to such horrors as euthanasia (voluntary and non-voluntary) 7 of adults and children, that it will be administered by non-physician third parties, and 8 that courts will soon be asked to extend the constitutional right to aid in dying to any 9 competent person, regardless of whether or not the person is terminally ill. These 10 cataclysmic predictions provide no basis to deny a constitutionally protected right to 11 aid in dying. As the United States Supreme Court observed in Cruzan, “it is the better 12 part of wisdom not to attempt, by any general statement, to cover every possible 13 phase of the subject.” 497 U.S. at 278 (alteration, internal quotation marks, and 14 citation omitted); see also Marozsan v. United States, 852 F.2d 1469, 1498 (7th 15 Cir.1988) (Easterbrook, J., dissenting) (stating that “[t]he terror of extreme 16 hypotheticals produces much bad law”). The State has had “ample opportunity to 17 articulate a constitutionally adequate justification” for prohibiting aid in dying. 18 Griego, 2014-NMSC-003, ¶ 68. It has not done so. 133 1 {137} It is possible that, in another case, presenting different facts, the State might 2 assert interests that a court might view differently. In this case, I end where I began, 3 asking what possible interest the State could have in denying to a mentally competent, 4 terminally ill patient whose medical condition is irreversible and irremediable, who 5 has but a short time to live, and who is experiencing intractable suffering, the right 6 to die peacefully, with dignity, at a time of her own choosing. The State has not 7 advanced a sufficiently persuasive justification for denying aid in dying as that term 8 is defined herein. Indeed, the State has acknowledged the profoundly diminished 9 value of its asserted interests, to the extent it has not conceded that the interests do 10 not exist at all. The factual record in this case, to which the State stipulated in its 11 entirety—including the expert testimony, the comprehensive body of data that has 12 been amassed since Glucksberg, and the current state of medical practice and the 13 standard of care—taken together with the State’s significant concessions, compel the 14 conclusion that the State’s asserted interests do not, and cannot, withstand scrutiny 15 under any standard of review; strict, intermediate, or rational basis. I would hold that 16 Section 30-2-4 is unconstitutional as applied to a willing physician’s act of providing 17 aid in dying at the request of a mentally competent, terminally ill patient who wishes 18 a peaceful end of life as an alternative to being forced to endure an unbearable dying 134 1 process marked by suffering, including extreme pain and/or the loss of autonomy and 2 dignity. 3 IV. THE REMAND PROPOSAL 4 The author of the majority opinion, having concluded that the right asserted by {138} 5 Plaintiffs is not a fundamental right, would remand for the district court to (1) 6 determine whether the State has met its burden to justify Section 30-2-4’s 7 proscription against aid in dying under intermediate scrutiny; (2) determine whether 8 Section 30-2-4 is constitutional under rational basis review; (3) decide the merits of 9 other constitutional theories that Plaintiffs raised below but did not cross appeal; and 10 (4) make any additional “factual findings relevant to issues left unaddressed by the 11 district court.” Majority Op. ¶¶ 48-53. This proposal is completely at odds with the 12 majority opinion’s suggestion that it would be inappropriate for this Court to 13 recognize a fundamental right because our Supreme Court is “the ultimate arbiter of 14 the meaning of” our Constitution. Majority Op. ¶ 38. It goes without saying that our 15 Supreme Court will have the final word. But it does not follow that this Court must 16 remain mute until it does. (The cases cited by the majority do not stand for that 17 proposition.) Regardless, it is impossible to reconcile this reasoning with a proposal 135 1 to remand. And remand cannot be squared with true and settled legal principles as 2 applied to this case. 3 {139} First, the question whether a constitutional right exists is a pure question of 4 law, as is the standard to be applied in determining whether a governmental 5 infringement of that right is constitutionally justified, i.e., the level of scrutiny to be 6 applied to the challenged statute. State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 7 102, 163 P.3d 489 (“[The appellate courts] review issues of statutory and 8 constitutional interpretation de novo.”); Breen v. Carlsbad Mun. Sch., 2005-NMSC9 028, ¶ 15, 138 N.M. 331, 120 P.3d 413 (“The determination of which level of scrutiny 10 is applicable under the Constitution is a purely legal question, and is reviewed de 11 novo.”); Hyden v. N.M. Human Servs. Dep’t, 2000-NMCA-002, ¶ 12, 128 N.M. 423, 12 993 P.2d 740 (stating that interpretation of the state constitution is reviewed de novo). 13 This means that we consider the legal question whether our Constitution protects the 14 right asserted without any deference to the district court’s conclusions on the issue. 15 In re Estate of Duran, 2003-NMSC-008, ¶ 14, 133 N.M. 553, 66 P.3d 326 (explaining 16 that the appellate court is not bound by district court’s legal conclusions and “may 17 independently draw [its] own conclusions of law on appeal” (internal quotation marks 18 and citation omitted)); Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 136 1 1996-NMSC-010, ¶ 5, 121 N.M. 471, 913 P.2d 659 (stating that the appellate court 2 does not defer to district court’s legal conclusions but “determine[s] whether the 3 [district] court correctly applied the law to the facts of the case”). And that means that 4 a remand would be utterly pointless; all the more so here because the district court’s 5 conclusion that the asserted right is protected by our Constitution as a fundamental 6 right necessarily includes the conclusion that the right is at least important, and the 7 State has conceded that it cannot meet its burden under intermediate scrutiny to 8 demonstrate a substantial governmental interest sufficient to justify Section 30-2-4’s 9 intrusion on the right. As Justice Bosson stated in emphasizing that appellate courts 10 should consider state constitutional issues, even if the district court did not, if the 11 party asserting the right cited a state constitutional provision below: 12 13 14 15 16 17 18 19 [E]ven if the court is not alerted, of what real import is that to the resolution of a pure question of law? The factual record here is not subject to any material dispute. This Court can decide the . . . issue whether or not the trial court addressed it. While in a perfect world the trial court should address each issue first, that aspiration should not be determinative. The statewide interest in development of our state Constitution tips the balance in favor of proceeding, and we should not hesitate to do so. 20 Garcia, 2009-NMSC-046, ¶ 63 (Bosson, J., concurring). Although Justice Bosson’s 21 comments were made in the context of discussing the requirements for preserving a 137 1 state constitutional issue for appeal (an issue not presented here, where Plaintiffs’ 2 claims are based solely on the New Mexico Constitution), the point pertains. 3 {140} To the extent the author of the majority opinion believes that the district court 4 should make further “findings,” the factual record is undisputed, and our review is de 5 novo on this aspect of the case as well. See City of Albuquerque v. One 1984 White 6 Chevy Ut., 2002-NMSC-014, ¶ 5, 132 N.M. 187, 46 P.3d 94 (explaining that the 7 appellate courts review issues under de novo standard when there are no disputed 8 material facts); State v. Esparza, 2003-NMCA-075, ¶ 13, 133 N.M. 772, 70 P.3d 762 9 (“Because the underlying facts . . . are not in dispute, we review the legal issues 10 presented de novo.”). The majority opinion’s concern with factual findings in a case 11 in which the facts are entirely undisputed is baffling in itself. But even assuming a 12 legitimate concern, the author of the majority opinion does not identify a single fact 13 purportedly necessary to resolve the legal issues presented in this case that is not 14 already contained in the stipulated record; the opinion, in fact, does not address the 15 factual record at all. Nor does the State argue that the record is incomplete, or that it 16 lacked the opportunity to present its case in the district court. To the contrary, the 17 State’s counsel said below that “the issues are not fact disputes but legal disputes” 138 1 and that he thought he “would be willing to stipulate to any facts that Plaintiffs 2 wanted to prove.” 3 {141} The contention that remand is necessary so that the district court can rule on 4 other constitutional theories raised by Plaintiffs that the court saw no need to reach 5 in light of its ruling is contrary to elementary legal principles. Appellate courts 6 routinely affirm district court rulings on purely legal issues where the record allows, 7 even when the district court relied on different reasoning, and when the court did not 8 consider the issue at all. State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 9 P.3d 684 (“[W]e may affirm the district court’s order on grounds not relied upon by 10 the district court if those grounds do not require us to look beyond the factual 11 allegations that were raised and considered below.” (internal quotation marks and 12 citation omitted)); State v. Snyder, 1998-NMCA-166, ¶ 8, 126 N.M. 168, 967 P.2d 13 843 (considering a state constitutional issue that was not considered or ruled upon in 14 the district court); State v. Beachum, 1972-NMCA-023, ¶ 8, 83 N.M. 526, 494 P.2d 15 188 (“A decision of the trial court will be upheld if it is right for any reason.”). No 16 one argues that the district court erred by failing to determine whether the right to aid 17 in dying is “important” even if it is not “fundamental,” as the district court held it 18 was. Nor does anyone claim that the district court erred by failing to rule on 139 1 Plaintiffs’ other constitutional theories. Appellate courts treat claims made in the 2 district court but not pressed on appeal as abandoned. English v. English, 19943 NMCA-090, ¶ 14, 118 N.M. 170, 879 P.2d 802. And the law requires that courts 4 avoid reaching constitutional questions that need not be decided. Minero v. 5 Dominguez, 1985-NMCA-100, ¶ 5, 103 N.M. 551, 710 P.2d 745 (“As a general 6 principle, courts do not reach constitutional questions unless absolutely required to 7 do so in order to resolve an issue presented.”). The notion that a remand is necessary 8 to decide abandoned constitutional issues so that “potential piecemeal appeals” may 9 be avoided, see Majority Op. ¶ 52, makes no sense. 10 {142} The law does not require “the doing of useless things.” State ex rel. Peters v. 11 McIntosh, 1969-NMSC-103, ¶ 9, 80 N.M. 496, 458 P.2d 222. The facts and principles 12 necessary to a correct holding are known. A remand would be pointless and would 13 needlessly consume the resources of the parties and the courts while delaying final 14 disposition by our Supreme Court. 15 V. SEPARATION OF POWERS 16 The State contends that New Mexico courts may not consider whether the {143} 17 Legislature’s criminalization of aid in dying is unconstitutional because doing so 140 1 violates “separation of powers.”24 First, it argues that decisions about aid in dying are 2 best left to the Legislature because that branch of government is directly accountable 3 to the people, and the fact that Section 30-2-4 has been on the books for forty-two 4 years without amendment demonstrates that the law reflects the values and social 5 mores of New Mexico citizens. Second, the State argues that the “legal landscape 6 surrounding physician[-]assisted suicide is unclear and filled with the kind of 7 uncertainty the resolution of which demands legislative action.” I address the State’s 8 arguments in reverse order. 9 {144} The State’s argument based on the lack of existing regulations specifically 10 governing the conduct of physicians who provide aid in dying has no merit. As a 11 threshold matter, this argument has nothing to do with the separation of powers; 12 rather, it concerns the type and scope of procedural safeguards the State says are 13 necessary to govern the practice of aid in dying. The State’s argument, moreover, is 14 24 15 16 17 18 19 20 The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except [where constitutionally excepted]. The separation of powers clause states: 21 N.M. Const. art. III, § 1. 141 1 internally inconsistent, relying on contradictory contentions. The State first contends 2 that the district court erred by failing to implement procedural safeguards for aid in 3 dying such as those set forth in Oregon’s Death With Dignity Act. It then argues that 4 the court “lacks the constitutional power to put these safeguards in place” because 5 these are exclusively legislative determinations. The State is correct that it is not the 6 role of the court to legislate. But a ruling that the New Mexico Constitution protects 7 the right to aid in dying in no way usurps the Legislature’s power to regulate aid in 8 dying in a manner that comports with that ruling. To the extent the Legislature deems 9 regulations appropriate or necessary, nothing would prevent it from enacting 10 constitutionally permissible measures. 11 {145} The State’s argument that the district court impermissibly intruded upon the 12 exclusive province of the Legislature evinces a fundamental misunderstanding of the 13 role of judicial review. Indeed, a decision holding Section 30-2-4 unconstitutional as 14 applied to aid in dying necessarily would vitiate the State’s argument that the district 15 court violated the provisions in our Constitution requiring separation of powers. See 16 NARAL, 1999-NMSC-005, ¶ 59 (“It is a function of the judiciary when its jurisdiction 17 is properly invoked to measure the acts of the executive and the legislative branch 18 solely by the yardstick of the [C]onstitution.” (internal quotation marks and citation 142 1 omitted)); see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically 2 the province and duty of the judicial department to say what the law is.”); Dillon v. 3 King, 1974-NMSC-096, ¶¶ 27-28, 87 N.M. 79, 529 P.2d 745 (holding that the 4 Constitution is the supreme law of the land and that it is the judiciary’s “function and 5 duty to say what the law is and what the Constitution means”). When a 6 constitutionally protected interest is at stake, preference for the legislative process 7 cannot constrain this Court, no matter how long the law at issue has been in effect. 8 See Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 678 (1970) (“[N]o one 9 acquires a vested or protected right in violation of the Constitution by long use, even 10 when that span of time covers our entire national existence and indeed predates it.”); 11 Loving, 388 U.S. at 6-8 (noting that the state cannot rely on a history of exclusion to 12 narrow the scope of the right); Brown, 347 U.S. at 492-93 (same); Oliver Wendell 13 Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897) (“It is revolting 14 to have no better reason for a rule of law than that so it was laid down in the time of 15 Henry IV. It is still more revolting if the grounds upon which it was laid down have 16 vanished long since, and the rule simply persists from blind imitation of the past.”). 17 The State urges us to abdicate our constitutional responsibility to decide this matter. 18 This I cannot and will not do. 143 1 {146} Just over a year ago, our Supreme Court struck down a statutory scheme dating 2 back almost a century that effectively precluded same-sex couples from marrying. At 3 the time, many argued that the policy debate over same-sex marriage, like the current 4 debate over aid in dying, was best left to the legislative process and that judicial 5 review would violate the separation of powers. Our Supreme Court did not retreat 6 from its constitutional responsibility in favor of leaving the matter to civic discourse 7 and legislative action. In Griego, 2014-NMSC-003, ¶ 1, Justice Chávez began by 8 underscoring the duty of courts to interpret and apply the protections of the 9 Constitution when the government is alleged to have threatened individual rights. The 10 Court rejected at the outset the premise of the argument the State makes here: 11 12 13 14 15 16 17 The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. 18 Id. (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). The Court 19 went on to recognize for the first time a right to same-sex marriage and held that our 20 marriage laws were unconstitutional insofar as they applied only to opposite-sex 21 couples. Id. ¶ 69; see also Obergefell, ___ U.S. at ___, 135 S. Ct. at 2605 (“The 144 1 dynamic of our constitutional system is that individuals need not await legislative 2 action before asserting a fundamental right. The Nation’s courts are open to injured 3 individuals who come to them to vindicate their own direct, personal stake in our 4 basic charter. An individual can invoke a right to constitutional protection when he 5 or she is harmed, even if the broader public disagrees and even if the legislature 6 refuses to act.”); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 7 (1985) (“It is plain that the electorate as a whole, whether by referendum or 8 otherwise, could not order city action violative of the Equal Protection Clause[.]”); 9 Chambers v. State of Florida, 309 U.S. 227, 241 (1940) (“Under our constitutional 10 system, courts stand against any winds that blow as havens of refuge for those who 11 might otherwise suffer because they are helpless, weak, outnumbered, or because they 12 are non-conforming victims of prejudice and public excitement.”). 13 {147} While I recognize that Section 30-2-4 was enacted over four decades ago, I 14 disagree with the contention of the State and the concurring opinion, see Concurring 15 Op. ¶ 62, that this fact immunizes the statute from judicial review of its 16 constitutionality. The argument is little more than a bald assertion that the Legislature 17 may constitutionally criminalize conduct simply because ‘twas ever thus. The law is 18 to the contrary. A ruling that Section 30-2-4 is unconstitutional as applied to aid in 145 1 dying reflects neither ignorance nor disregard of a quintessential legislative function. 2 It would not violate the separation of powers. It would simply be an exercise of 3 judicial authority and responsibility that is a founding principle of our system of 4 government. This is what courts do. 5 6 **** {148} The question at the heart of this case is who has the right to decide when and 7 how a mentally competent, terminally ill New Mexican will end her life after the 8 options for meaningful improvement of her terminal condition have been exhausted, 9 such that “life” means being forced to endure unbearable suffering until death 10 arrives.25 I recognize that citizens may disagree about the profound implications of 11 a terminally ill individual’s decision to end her suffering by ending her life, but our 12 judicial obligation is to give effect to the liberty interests of all New Mexicans in 13 accordance with the guarantees of our Constitution. Other choices and decisions 14 central to personal autonomy and dignity have long enjoyed the status of 15 constitutionally protected liberty interests. I would hold that the New Mexico 16 17 18 19 20 21 25 “There are times when even the most accommodating sufferers can endure no more pain, no further losses of function, and no additional insults to their bodily and personal integrity. Despite receiving good palliative care, and regardless of prognosis, these patients arrive at a point where they are ready to end the struggle with their illness.” Stern & Difonzo, supra, at 400 (footnote and internal quotation marks omitted). 146 1 Constitution protects aid in dying as a liberty interest subject to heightened scrutiny. 2 While it is impossible for me to conclude that governmental infringement of the right 3 to aid in dying could be justified by any lesser interest than that required for 4 constitutional rights previously recognized as “fundamental,” the required level of 5 scrutiny need not be determined in this case. For the State concedes that mentally 6 competent, terminally ill citizens have a fundamental right to decide for themselves 7 when and how to end their lives, and it provides no acceptable justification for 8 denying them the only means available to effectuate that right in a peaceful and 9 dignified manner—a lethal dosage of medication prescribed by a willing physician 10 acting in accordance with the established standard of care for aid in dying. It is 11 beyond dispute that the suffering of these citizens “is too intimate and personal for 12 the State to insist, without more, upon its own vision . . . , however dominant that 13 vision has been in the course of our history and our culture.” Casey, 505 U.S. at 852. 14 15 _______________________________ LINDA M. VANZI, Judge 16 147

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