Lecture Notes Morris v. Brandenburg, N.M., 376 P.3d 836 (2016) Keith Burgess-Jackson 2 March 2017 Introduction. Basics. Explain the caption and the case citation. Amicus curiae. Means, literally, friend of the court. A person with strong interest in or views on the subject matter of an action may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views (Black s Law Dictionary, 5 th ed., 1979). Judicial system. New Mexico has a five-member Supreme Court. Put the colored judicial map on the screen. NMSA 1978, 30-2-4 (1963). Read the statute aloud. Neither suicide nor attempted suicide is prohibited by law. Explain how suicide can be punished. Other statutes. By statute, two classes of physicians are immune from criminal liability: (i) those who withdraw life-sustaining treatment from a patient, at the patient s direction; and (ii) those who administer pain medication to a patient in compliance with the New Mexico Pain Relief Act. Read the pertinent provisions of the statutes aloud. Neither statute applies to aid in dying. Issue. The question in this case is whether a mentally competent, terminally ill patient has a constitutional right to have a willing physician, consistent with accepted medical practices, prescribe a safe medication that the patient may self-administer for the purpose of peacefully ending the patient s life (3). No physician would be required to assist. Resolution. [W]e decline to hold that there is an absolute and fundamental constitutional right to a physician s aid in dying (4). The statute is not unconstitutional on its face or as applied to Petitioners in this case (4). All five justices voted to affirm the ruling of the Court of Appeals. Only one justice Edward L. Chavez wrote. The others, including Chief Justice Charles W. Daniels, concurred (i.e., ran with Chavez). Since no claim had been made concerning the United States Consti- 1
tution, the case ended here. Note that the New Mexico Legislature may well follow Oregon s lead. Note also that seven of the nine judges involved in this case ruled that there is no constitutional right to die. (All five males ruled for the defendants; two of the four women ruled for the plaintiffs and two for the defendants.) I. Background and Procedural History. Plaintiff. Aja Riggs (show the students a picture of Riggs from Google images) was diagnosed with uterine cancer in August 2011. Her doctors told her, after surgery, that the cancer was the most aggressive kind (4). She began chemotherapy and later radiation therapy. She had many painful side effects. She wanted a peaceful death or at least the option of a peaceful death with friends and family present. (Point out that a significant percentage of Oregonians who receive prescriptions for lethal drugs do not use them.) Query: Why didn t she opt for pain relief? Status of aid in dying. Four states Oregon, Washington, Vermont, and California allow aid in dying, which consists of a physician prescribing medication that will bring about a peaceful death. This was done by legislation. Montana s Supreme Court has ruled that a terminally ill patient s choice of physician aid in dying can be a valid consent defense to a charge of homicide brought against a physician (5). No appellate court [federal or state] has held that there is a constitutional right to physician aid in dying (5). New Mexico could have been the first. Additional plaintiffs. Dr Katherine Morris and Dr Aroop Mangalik want to provide the option of aid in dying for their terminally ill patients in New Mexico (5). Dr Morris had practiced in Oregon, which has a Death with Dignity Act. Lawsuit. Riggs, Morris, and Mangalik (plaintiffs) filed suit against Kari Brandenburg, the District Attorney for Bernalillo County, and Gary King, the Attorney General of New Mexico (defendants), seeking declaratory and injunctive relief. Explain the difference. They claimed (i) that the assisted-suicide statute did not apply to the conduct defined by Petitioners as physician aid in dying (7) and (ii) that, if the statute did 2
apply, it violated the New Mexico Constitution. Explain arguing in the alternative. Trial. The District Court judge, Nan G. Nash, heard testimony and ruled (i) that the statute applied to physician aid in dying and (ii) that the statute violated two provisions of the New Mexico Constitution: Article II, 4, 1 and Article II, 18. 2 Explain the concept of judicial review. Judge Nash held that Riggs had a fundamental right to choose aid in dying and that the state failed to show that applying the statute to her furthered a compelling state interest. Explain the various standards of judicial review. Use my searching-formoney analogy: You d look longer and harder for a missing $100 bill than you would for a missing $1 bill. How hard (or closely) we look for a thing depends on how valuable it is. If a fundamental right is at stake, a court will look very closely at any statute or regulation that threatens it. This is strict scrutiny. First appeal. The state appealed to the New Mexico Court of Appeals, which ruled, in a vote of 2-1, (i) that the statute applied to physician aid in dying and (ii) that the statute did not violate the New Mexico Constitution. The Court of Appeals held that no fundamental right was implicated and that strict scrutiny should not have been applied. The two judges in the majority disagreed about whether the case should be remanded to determine whether intermediate scrutiny or rational-basis scrutiny should be applied. In other words, there was no agreement on which standard of review should be applied. Second appeal. Morris et al. petitioned for relief to the New Mexico Supreme Court. Brandenburg and King responded. Respondents prevailed. Differential rights. Explain that a state constitution may confer more or stronger rights than the federal constitution. Draw a diagram that shows different states rising above a baseline to varying degrees (and some not rising above). 1 Sec. 4. [Inherent rights.] All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness. 2 Sec. 18. [Due process; equal protection; sex discrimination.] No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. 3
II. Section 30-2-4 Prohibits Physician Aid in Dying. Issue. Does the assisting-suicide statute apply to the practice of physician aid in dying? If not, then the case is resolved without reaching the constitutional issue. If so, then the Court must reach the constitutional issue. Statutory interpretation. The Court quotes another Supreme Court case: Our principle goal in interpreting statutes is to give effect to the Legislature s intent (8). Resolution. [T]he practice of aid in dying involves a physician deliberately prescribing a lethal dose of barbiturates with the understanding that the patient will self-administer the entire dose to end his or her life, should the patient choose to do so (8). Query: Is writing a prescription aiding? Is aid in dying suicide? Petitioners elicited detailed expert testimony explaining that the medical and psychological professions do not consider a death from aid in dying to be a suicide and that the medical profession considers the underlying cause of death brought on by aid in dying to be the terminal illness itself (9). Read footnote 1 aloud. The Court rejects this argument, saying that suicide is defined in the statute as the taking of [one s] own life. In other words, it s the legal meaning of suicide that matters, not the professional meaning. Suicide means killing of oneself. Compare homicide, genocide, regicide, patricide, matricide, and fratricide. Conclusion. We therefore conclude that physician aid in dying falls with the proscription of [the statute] (10). The question now arises whether the statute comports with the New Mexico Constitution. Note that the New Mexico Legislature may amend the statute so that it excludes aid in dying. Unanimity. All nine judges involved in the case ruled that the statute covers (i.e., prohibits) aid in dying. III. The Due Process Clause of the United States Constitution Does Not Protect the Right Asserted by Petitioners. Interstitial ( intervening space ) approach. When analyzing a state constitutional provision with a federal analogue, this Court employs the interstitial approach.... Under the 4
interstitial approach, we must first examine whether an asserted right is protected under an equivalent provision of the United States Constitution.... If the right is protected, then, under the New Mexico Constitution, the claim is not reached.... If the right is not protected, then the Court must determine whether... the New Mexico Constitution protects the right (11). Short version. Does the state constitution confer greater rights than the federal constitution? The burden is on the party seeking relief under the state constitution. Fourteenth Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Discuss substantive due process, which transforms a procedural requirement into a source of rights. Washington v. Glucksberg (1997). The United States Supreme Court ruled that the Washington aiding-suicide statute did not violate the Due Process Clause of the 14 th Amendment. [T]his holding has never been expressly overruled (13). Explain the difference between reversing and overruling, and point out that overruling can be done explicitly ( We hereby overrule X ) or implicitly. Lawrence v. Texas (2003) explicitly overruled Bowers v. Hardwick (1986). Brown v. Board of Education (1954) explicitly overruled Plessy v. Ferguson (1896). Glucksberg analysis. No fundamental right, so no strict scrutiny of statute. The statute is rationally related to a legitimate government interest. The Court identified five government interests, which are set out on pages 13-4 of the Morris opinion. IV. The Federal Analysis Set Forth in Glucksberg Is Not Flawed. Petitioners argue that the Glucksberg analysis is flawed; the Court disagrees. Glucksberg was not abandoned (i.e., implicitly overruled) in Obergefell v. Hodges (2015). Judge Linda Vanzi of the New 5
Mexico Court of Appeals argued that Obergefell implicitly overruled Glucksberg and that Glucksberg, therefore, is no longer good law. V. There Are No Distinctive State Characteristics with Respect to Article II, Section 18 of the New Mexico Constitution That Justify Our Departure from Glucksberg. Read the marked passage on page 17 aloud. The cases cited by Petitioners do not evoke any distinctive characteristics in New Mexico law that require physician aid in dying to be treated as a fundamental right (18). VI. Physician Aid in Dying Is Not a Fundamental or Important Right Under Article II, Section 4 of the New Mexico Constitution. This provision is seldom interpreted (19). The Court reviews the history of the provision, concluding that it is not an enforceable source of individual rights, but rather an overarching principle which informed the equal protection guarantee of our Constitution (24). VII. There Is a Rational Basis for the Section 30-2-4 Prohibition of Physician Aid in Dying. Read the marked passage on page 27, which sets out the government interests furthered by the assisting-suicide statute. [W]hen the relevant legislation is read as a whole, Section 30-2-4 is rationally related to the aforementioned legitimate government interests (27). VIII. Conclusion. [W]e reverse the district court s... conclusion and remand to the district court for proceedings consistent with this opinion (27). 6