Photo courtesy of Mary Torres
New Mexico Judge Elizabeth Whitefield, who died of cancer in 2018, is the namesake of a bill that would authorize medical aid in dying in New Mexico. The Elizabeth Whitefield End of Life Options Act allows consultations with health care providers to be conducted through a video link.

SALT LAKE CITY — A new bill that would allow terminally ill people in New Mexico to obtain medication "to bring about a peaceful death" has galvanized opponents who say the legislation would radically expand the boundaries of medically assisted suicide beyond what is authorized in other states.

Writing in National Review, attorney Wesley J. Smith said the bill reveals “the true radical heart of the assisted suicide/euthanasia agenda” with provisions that allow nurse practitioners and physician assistants — not just doctors — to prescribe the lethal drugs in a process that can include a video consultation.

Unlike legislation recently filed in Utah, which says the patient must have six months or less to live, New Mexico’s bill would make the option available to anyone with an incurable illness that will cause death “in the foreseeable future.” And it would allow a patient to receive the drugs two days after the prescription is written.

Proponents of medical assistance in dying say the use of telemedicine — diagnosing and treating patients from a distance through technology — is a logical next step for a practice that has been legal in some states for more than 20 years. They applaud New Mexico for drafting a bill that removes “unnecessary regulatory roadblocks” that make a dying person’s last stage of life even more difficult, and in some cases, prohibit the person from taking advantage of the law because of mandated waiting periods.

One study found that one-third of people who requested a prescription in California died before they were able to obtain it, said Kim Callinan, executive director of Compassion & Choices, a nonprofit with offices in Portland, Oregon, and Washington, D.C., that advocates on end-of-life issues.

Aaron Thorup, Compassion & Choices

"What the New Mexico lawmakers are very smartly doing is saying our goal is to pass legislation that both protects patients and is compassionate," said Kim Callinan, executive director of Compassion & Choices, a nonprofit with offices in Portland, Oregon and Washington D.C., that advocates on end-of-life issues.

New Mexico’s bill, which is being taken up by legislators this week, follows on the heels of Hawaii’s, which took effect Jan. 1 and also allows for video consultations. It would make New Mexico the eighth state (plus the District of Columbia) to authorize medical aid in dying. Seven other states, including Utah, have bills pending, and Callinan said said she knows of 10 others expected to have bills filed soon.

The prescribing of drugs to cause death, already a volatile subject, becomes even more controversial when done over the internet, similar to debate over prescribing pills that cause abortions online, or even birth control.

So, too, does the prospect of legalizing premature death via prescription drugs in a state that has some of the nation’s highest rates of both suicide and opioid overdoses, as New Mexico does, according to a disability-rights advocate who opposes medically assisted suicide.

What the bill says

Health policy consultant Oliver Kim has noted that former Senate Majority Leader Bill Frist, a physician, was criticized in 2005 for evaluating Terri Schiavo’s condition after viewing her on a video. (Schiavo, the Florida woman at the center of a contentious right-to-die case, died in 2005.)

“Although Frist backed away from calling his review of videos an actual diagnosis, it is interesting to think how the use of technology to make a remote determination of a patient’s condition has changed since Frist made his assessment,” Kim wrote for the Petrie-Flom Center for Health Law Policy, Biotechology and Bioethics at Harvard Law School.

" It may seem kind of unusual to people, but (telemedicine) is really catching on because of the distance challenges, provider shortages and difficulties in finding access to a care provider. "
Health policy consultant Oliver Kim

In an interview with the Deseret News, however, Kim, an adjunct professor at the University of Pittsburgh School of Law, said he doesn’t believe that New Mexico’s inclusion of telemedicine makes the bill more radical, as opponents have charged.

“It may seem kind of unusual to people, but (telemedicine) is really catching on because of the distance challenges, provider shortages and difficulties in finding access to a care provider. In some ways, it’s not surprising that a state like New Mexico, which has done a lot with telemedicine, would think to incorporate it," Kim said.

Prescription management and renewal is one of the most common uses of telemedicine, according to one study, along with diagnosis of minor conditions such conjunctivitis or a fever, birth control counseling and mental health therapies. (Radiologists, psychiatrists and cardiologists are the physicians most likely to practice telemedicine.)

Although telemedicine enables some people to consult with providers in other states, both New Mexico and Hawaii’s bills restrict medical aid in dying to adults residing in the states, contrary to some claims that the bill would create a wave of "suicide tourism."

Robert Schwartz, professor emeritus at the University of New Mexico School of Law, said the inclusion of telemedicine is a kindness, making medical assistance in dying available to people in rural communities, many of whom already make use of telemedicine.

“Right now, you look at Oregon or Washington or California, and you can see the people who use the law are — in Oregon for example — urban people, not entirely, but by and large. That’s because (in rural areas) it’s harder to get access, much harder to find a doctor willing to write a prescription. In some counties, it's harder to find a doctor altogether,” he said.

To ask a rural patient nearing death to drive to a city to see a doctor is an unnecessary hardship, particularly if the patient has already been seeing a doctor via a video link, Schwartz said. “Telemedicine is greatly advanced in New Mexico; we have the largest telemedicine program in the country. It’s normalized here in a way that hasn't been in some other places. So New Mexico seems a particularly good place to offer this through telemedicine,” Schwartz said.

Other components of the bill, however, have also caused concern.

Like other states, New Mexico stipulates that the official cause of death be listed as the underlying illness, not the drugs the dying person ingests, in effect compelling the prescriber to lie on the death certificate, Smith wrote in National Review.

Further, allowing a nurse practitioner or physician assistant to write the prescription and shrinking the waiting period required in other states means "a patient could go to a nurse practitioner on Monday morning, be examined, have a telemedicine consult, receive the prescription that day, have the poison dispensed on Wednesday, and be dead before Thursday begins," Smith wrote.

Nurse practitioners and physician assistants are able to prescribe most types of drugs, although the range varies by state. The New Mexico law would require doctors to tell all dying patients they have the right to request lethal drugs, but health care providers would not be legally bound to prescribe them and could opt out, as in other states — which is why proponents of the legislation say there's a need for a greater pool of health care providers who are able and willing to prescribe. At least two health care providers in Hawaii have said they will not fill lethal prescriptions at their pharmacies, according to an Associated Press report.

The wrong message?

In a statement, the New Mexico Conference of Catholic Bishops called these provisions "dangerous" and said the bill amounts to "euthanasia via remote, impersonal diagnosis."

Noting that the use of lethal drugs would be presented to patients as one of their options, the Steubenville, Ohio-based Patients Rights Council said that by enacting the bill, New Mexico would turn "assisted suicide into a medical treatment."

The Roman Catholic Church, The Church of Jesus Christ of Latter-day Saints and other religious bodies are among the foremost opponents of physician-assisted death, maintaining that palliative care can ease the suffering of the terminally ill, and that God alone should decide when a person dies.

But others have posited arguments against assisted suicide that don't involve religious faith, and many medical associations officially remain against the practice, or have adopted a neutral stance, as the American Academy of Family Physicians did last year.

Disability-rights groups have also taken a strong stand against medical-aid-in-dying legislation.

John Kelly, who was instrumental in the defeat of a bill in Massachusetts two years ago, is the New England regional director of Not Dead Yet, a national nonprofit that opposes medical aid in dying. He calls the New Mexico bill "appalling."

To Kelly, the bill does not represent a “qualitative change” in the problems he sees with similar bills, but “it peels away some of the trappings of safeguards and makes it look as nakedly death-centered as it always has been.”

Moreover, Kelly questions the wisdom of a state endorsing premature death by prescription drugs for some of its citizens while bemoaning overdose drugs by others. “This bill would put the state in the business of promoting suicide by overdose when New Mexico has the fourth highest suicide rate in the U.S. and rates are increasing among all demographics," he said.

“And New Mexico has a tremendous number of deaths by prescription drugs. Rather than countering this epidemic, now this bill comes along and says suicide is good and overdose by prescription drugs is the best way to get there. That’s exactly the opposite message of what New Mexicans need to hear,” Kelly said.

Proponents of physician-assisted death eschew the use of the term “assisted suicide,” saying that, unlike healthy people who kill themselves, people who choose this option don’t want to die, but are nearing death because of an illness.

In Oregon, the first state where medically assisted death was legal, most people who request lethal prescriptions have cancer or amyotrophic lateral sclerosis. The most common reasons for seeking lethal drugs are that they do not want to suffer and/or are no longer to take part in activities that make life worthwhile, Oregon records show.

A peaceful death, however, is not guaranteed, as the request the patient must sign says.

Under the bill filed in New Mexico, the patient would acknowledge that death generally occurs within three hours after taking the drugs, but may take longer. Oregon records show that death occurred anywhere from 1 minute to 4 days after patients took the drugs. And seven people have survived after taking the drugs, regaining consciousness and later dying from their illness.

Elizabeth Whitefield, the New Mexico judge for whom the End of Life Options Act is named, died last year after an 11-year battle with cancer. A proponent of medical aid in dying, Whitefield testified on behalf of an earlier bill, but was not able to choose the option for herself in her last days, said her friend, Mary Torres, an attorney who was present in Whitefield's final hours.

Photo courtesy of Mary Torres
New Mexico Judge Elizabeth Whitefield, who died of cancer in 2018, is the namesake of a bill that would authorize medical aid in dying in New Mexico. The Elizabeth Whitefield End of Life Options Act allows consultations with health care providers to be conducted through a video link.

Although Whitefield did not die in obvious pain and distress as she had feared, Torres said her friend was adamant that other people should be able to obtain a prescription to end suffering. The day before her death, Whitefield told Torres, "This is so hard."

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“I think this act would have given her the opportunity to say goodbye on her terms. Because cancer had taken everything from her, this would have given her the chance to flip the bird at cancer and say ‘I’m going out on my terms.’" Torres said.

Torres and Whitefield's husband, Paul Thorne, will be in Sante Fe this week to lobby for the passage of the bill. But even proponents say it may not survive in its present form.

"We are excited that the New Mexico Legislature is tackling the issue. They're looking at this in a really innovative way and saying we want to learn from other states," said Callinan, of Compassion & Choices. "But where they end up at the end, however, is not necessarily where the bills starts."