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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-027

Filing Date: June 30, 2016

Docket No. S-1-SC-35478

KATHERINE MORRIS, M.D., AROOP 

MANGALIK, M.D., and AJA RIGGS,

Plaintiffs-Petitioners,

v.

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-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI

Nan G. Nash, District Judge

Kennedy, Kennedy & Ives, LLC

Laura Schauer Ives

Albuquerque, NM

ACLU of New Mexico Foundation

Alexandra Freedman Smith

Albuquerque, NM

Disability Rights Legal Center

Kathryn L. Tucker

Los Angeles, CA

for Petitioners

Fuqua Law & Policy, P.C.

Scott Fuqua

Santa Fe, NM

for Respondents
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Modrall, Sperling, Roehl, Harris & Sisk, P.A.

Emil J. Kiehne

Albuquerque, NM

Alliance Defending Freedom

Catherine Glenn Foster

Washington, DC

for Amici Curiae New Mexico State Senators Mark Moores, Steven P. Neville, et al.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP

Carolyn M. “Cammie” Nichols

Albuquerque, NM

Compassion & Choices

Kevin Diaz

Portland, OR

for Amicus Curiae Compassion & Choices

Montgomery & Andrews, P.A.

Lara Katz

Santa Fe, NM

Stephen F. Gold

Philadelphia, PA

for Amici Curiae Not Dead Yet, et al.

Coberly & Martinez, LLLP

Kristina Martinez

Santa Fe, NM

for Amicus Curiae The ALS Association New Mexico Chapter

Robert Schwartz

Albuquerque, NM

for Amicus Curiae New Mexico Psychological Association

Garcia Ives Nowara LLC

Molly Schmidt Nowara

Albuquerque, NM
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Covington & Burling LLP

Christina G. Kuhn

Julia F. Post

Michael S. Labson

Washington, DC

for Amici Curiae American Medical Women’s Association, et al.

Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A.

Juan L. Flores

Jaime L. Dawes

Albuquerque, NM

for Amici Curiae Archbishop John Charles Wester of the Archdiocese of Santa Fe, et al.

OPINION

CHÁVEZ, Justice.

{1} Since at least 1963 it has been a crime in New Mexico to deliberately aid another in

the taking of his or her own life. See NMSA 1978, § 30-2-4 (1963). Yet a physician who

withdraws life-sustaining treatment from a patient, at the patient’s direction, and in

compliance with the Uniform Health-Care Decisions Act (UHCDA), NMSA 1978, §§

24-7A-1 to -18 (1995, as amended through 2015), is immune from criminal liability for such

actions. Section 24-7A-9(A)(1). And a physician who administers pain medication to a

patient in compliance with the New Mexico Pain Relief Act, NMSA 1978, §§ 24-2D-1 to

-6 (1999, as amended through 2012), even if doing so hastens the patient’s death, is also

immune from criminal liability. See § 24-2D-3. 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. If we

answer yes to the question, a willing physician may assist the patient and avoid criminal

liability because Section 30-2-4 would be unconstitutional as applied to the physician. If we

answer no to the question, the alternatives for the patient are to (1) endure the prolonged

physical and psychological consequences of a terminal medical condition that the patient

finds intolerable; or (2) take his or her own life, possibly by violent or dangerous means.

{2} It is not easy to define who would qualify to be a terminally ill patient, or what would

be the criteria for assuring a patient is competent to make an end-of-life decision, or what

medical practices are acceptable to aid a patient in dying, or what constitutes a safe

medication. These concerns require robust debate in the legislative and the executive

branches of government. Although the State does not have a legitimate interest in preserving

a painful and debilitating life that will imminently come to an end, the State does have a

legitimate interest in providing positive protections to ensure that a terminally ill patient’s
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end-of-life decision is informed, independent, and procedurally safe. More specifically, the

State has legitimate interests in (1) protecting the integrity and ethics of the medical

profession; (2) protecting vulnerable groups—including the poor, the elderly, and disabled

persons—from the risk of subtle coercion and undue influence in end-of-life situations,

including pressures associated with the substantial financial burden of end-of-life health care

costs; and (3) protecting against voluntary or involuntary euthanasia because if physician aid

in dying is a constitutional right, it must be made available to everyone, even when a duly

appointed surrogate makes the decision, and even when the patient is unable to selfadminister the life-ending medication. Therefore, we decline to hold that there is an absolute

and fundamental constitutional right to a physician’s aid in dying and conclude that Section

30-2-4 is not unconstitutional on its face or as applied to Petitioners in this case.

I. BACKGROUND AND PROCEDURAL HISTORY

{3} Although her cancer is now in remission, Aja Riggs says that it would bring her

“peace of mind” to have the option to end her suffering by choosing aid in dying if she

eventually becomes terminally ill. Ms. Riggs was diagnosed with uterine cancer in August

2011. After a surgery several months later, doctors informed her that her cancer was more

extensive than they had initially thought and was “the most aggressive kind.” At that point,

she began chemotherapy. The chemotherapy caused Ms. Riggs to feel “extreme fatigue,”

sometimes to the point where “it was too much effort to even talk.” She suffered serious

adverse reactions to the cancer treatments, including several trips to the emergency room for

an anaphylactic reaction, severe pain in her veins, and a nearly fatal infection. Several

months into chemotherapy, her doctors discovered a cancerous tumor, and Ms. Riggs

immediately began additional radiation therapy. She experienced many painful side effects

from this treatment, including a burning sensation on her skin, constant nausea, and fatigue.

{4} During these excruciating treatments, Ms. Riggs says that she “began to think very

seriously about what a death from cancer might be like,” and she was not sure whether she

wanted “to go all the way to the end of a death from cancer.” She was afraid that eventually

she would be “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.” She

considered the possibility of a “more peaceful death,” but she still did not want to discuss

it with her closest family and friends or her doctor because she “didn’t want to implicate

anybody else in what might be a crime.” As a result, she thought that the choice to end her

suffering would require her to “die alone and in isolation.” By contrast, Ms. Riggs believed

that a good death would involve

having the presence of the people that I care about the most, who care about

me the most; being at home, not being in the hospital; not having a lot of

medical interventions that interfere with my ability to communicate or

function as I would like to; to not have pain to the extent that it compromises

my ability to connect with people or to be present in the moment; a sense of

gentleness and peace to it.
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{5} According to Petitioners in this case, under certain circumstances, physician aid in

dying could afford Ms. Riggs precisely the peaceful death surrounded by family members

for which she hopes, rather than the agonizing, unpleasant, and lonely death that she fears.

Petitioners define aid in dying as “a recognized term of art for the medical practice of

providing a mentally-competent, terminally-ill patient with a prescription for medication that

the patient may choose to take in order to bring about a peaceful death if the patient finds his

[or her] dying process unbearable.” This practice is explicitly permitted and regulated by

statute in four states: Oregon, Washington, Vermont, and California. See Oregon Death

with Dignity Act, Or. Rev. Stat. §§ 127.800 to .897 (1995, as amended through 2013); The

Washington Death with Dignity Act, Wash. Rev. Code §§ 70.245.010 to .220 & 70.245.901

to .904 (2008); Vermont Patient Choice at the End of Life Act, Vt. Stat. Ann. tit. 18, §§ 5281

to 5293 (2013, as amended through 2015); California End of Life Option Act, Cal. Health

& Safety Code §§ 443 to 443.22 (2016). Therefore, there is a minor but growing trend

among states to recognize physician aid in dying through legislation. Further, in 2009, the

Montana Supreme Court held 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. Baxter

v. State, 2009 MT 449, ¶ 50, 224 P.3d 1211. No appellate court has held that there is a

constitutional right to physician aid in dying.

{6} Dr. Katherine Morris, a surgical oncologist at the University of New Mexico, and Dr.

Aroop Mangalik, clinical director at the UNM Cancer and Research Treatment Center, want

to provide the option of aid in dying for their terminally ill patients in New Mexico. Dr.

Morris previously practiced medicine in Oregon, where she provided physician aid in dying

to two patients pursuant to that state’s Death with Dignity Act. She testified that when these

patients received a lethal prescription they “expressed a feeling of peace that they had this

option, and it seemed to relieve some of their suffering that was related directly to loss of

control over their own bodies.” Dr. Morris detailed some of the physical ailments that these

patients endured in the time immediately preceding death. One of Dr. Morris’s patients had

a recurring tumor on her chest wall, parts of which would continually die and “essentially

[become] rotting meat;” the smell from the tumor was right under the patient’s nose, which

made it difficult for her to eat. Dr. Morris recalled that another patient, “a fireman, a really

strong and vital guy,” had skin cancer that metastasized to his spine:

[H]e was in so much pain and we tried everything. We tried very aggressive

pain management. We tried huge doses of narcotics, muscle relaxants,

sedatives. We tried an implanted spinal pain pump. The best we could do

for this poor man was make him unconscious. If he was awake, he was,

literally, sobbing in pain.

Dr. Morris stated that terminal illness can also be psychologically challenging for patients

due to a rapid loss of control over their bodily functions and a decline in their autonomy.

{7} Dr. Morris also testified about other end-of-life options that, unlike aid in dying, are

explicitly permitted by statute in New Mexico. For example, the UHCDA permits patients
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to provide advance directives to withdraw or withhold life-sustaining treatment and

withdraw or withhold artificial nutrition and hydration. Sections 24-7A-1(G)(3)-(4); see §

24-7A-2. Dr. Morris testified that sometimes doctors will remove a patient from devices that

are effectively keeping that patient alive. For example, a doctor may remove a patient from

a dialysis machine, which will cause the patient’s kidneys to fail and the patient to die. A

doctor may also remove a patient from a ventilator that assists the patient’s breathing, which

then causes the patient to suffocate and die. The decision to end the patient’s life by

withdrawing life-sustaining treatment is typically made by the patient, or through an advance

directive from the patient if the patient is unconscious or incompetent, or in the absence of

an advance directive, a family member or close friend must make the decision on the

patient’s behalf. See § 24-7A-2. Once the decision has been made, the medical professional

then actively removes the patient from the life-sustaining device. See §§ 24-7A-1(A), -2.

{8} Similarly, the Pain Relief Act protects physicians who prescribe medication for

purposes of pain relief under accepted standards of practice, even in situations where the

patient’s death may be hastened by the treatment. See § 24-2D-3. Accordingly, doctors may

provide palliative sedation, also called “terminal sedation,” a practice that can hasten the

patient’s death. For example, Dr. Morris stated that sometimes, when a patient is in severe

pain, doctors will sedate that patient into an unconscious state, and that when people are

sedated to that degree, “it suppresses their breathing and sometimes ends [a patient’s] life.”

Similar to deciding to withdraw life-sustaining treatment, a patient, a patient through an

advance directive, or a patient’s family member on the patient’s behalf may make the

ultimate decision to submit to palliative sedation, a choice that could cause the patient to die

soon thereafter.

{9} According to Petitioners, the statutory schemes that regulate aid in dying in other

states, particularly Oregon, could guide the standard of care employed by physicians in New

Mexico who would practice aid in dying. In support of this argument, Petitioners offered

testimony from Dr. Eric Kress, who practices aid in dying in Montana, where the practice

is legal but is not regulated by statute. Dr. Kress testified that he spent between thirty and

forty hours studying the standard of care developed for physician aid in dying in Oregon and

consulting with physicians who practiced there because those physicians have developed “a

body of knowledge” and it would have been malpractice not to do so.

{10} In addition to stringent requirements regarding eligibility and informed consent, see

Or. Rev. Stat. §§ 127.800, 127.805, 127.820, 127.825, 127.830, the Oregon statute imposes

waiting periods to allow time for a patient to change his or her mind, see id. §§ 127.840,

127.850. The patient must request the lethal prescription at least twice orally and once in

writing. Id. § 127.840. The two oral requests must be at least fifteen days apart, and the

patient must be given an opportunity to rescind his or her decision at the time of the second

oral request. Id. The written request must be witnessed by two people, at least one of whom

is a disinterested person, which means a person who is (a) not a relative by blood or marriage

to the patient, (b) not aware that he or she is entitled to recover anything from the patient’s

estate, (c) not an employee of the health care facility where the patient resides, and (d) not
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the patient’s physician. Id. § 127.897. The doctor can prescribe a lethal dose immediately

following the three requests, subject to having met the two-day waiting period that follows

the patient’s written request. Id. § 127.850. The patient will then receive a lethal dose of

barbiturates, such as Seconal or Pentobarbital, which the patient must then choose to selfadminister. According to Dr. Nicholas Gideonse, a family practitioner in Oregon whose

patients include those in need of aid of dying, these specific drugs are used “because of the

high rate of certainty—not a hundred percent but 99.9 percent certainty—that [the] result of

falling asleep and never waking up will occur” within minutes. Yet Dr. Kress noted that

these various safeguards can also make aid in dying unavailable for those too close to death

to satisfy the statutory requirements.

{11} Although the Oregon statute explicitly exempts from criminal and civil liability any

doctor who provides aid in dying “in good faith compliance with” that statute, id. §

127.885(1), Dr. Gideonse explained that if physicians fall short of the standard of care and

provide substandard or negligent care, they can still lose their licenses to practice medicine,

face suits from a patient’s family, and/or face prosecution.

{12} Based on the undisputed testimony, Petitioners sought declaratory and injunctive

relief to the effect that either (a) Section 30-2-4, New Mexico’s criminal statute prohibiting

assisted suicide, did not apply to the conduct defined by Petitioners as physician aid in

dying; or (b) even if the statute did apply to physician aid in dying, such an application

would be unconstitutional under various provisions of the New Mexico Constitution. The

district court found that Section 30-2-4 applied to physician aid in dying, but agreed with

Petitioners that any prosecution of that conduct would violate the patient’s “fundamental

right to choose aid in dying pursuant to the New Mexico Constitution’s guarantee to protect

life, liberty, and seeking and obtaining happiness, N.M. Const., art. II, § 4, and its

substantive due process protections, N.M. Const., art. II, § 18.” Accordingly, the district

court examined the application of Section 30-2-4 to physician aid in dying under strict

scrutiny and held that the State had not proved that applying the statute in this manner

furthered a compelling state interest. Because it had already invalidated Section 30-2-4’s

application to physician aid in dying on due process grounds, the district court did not

address Petitioners’ claims that applying Section 30-2-4 to that conduct would be

“unconstitutionally vague or violate[] the guarantee of equal protection under the New

Mexico Constitution.”

{13} A divided Court of Appeals agreed with the district court that Section 30-2-4 applied

to physician aid in dying. Morris v. Brandenburg, 2015-NMCA-100, ¶¶ 1, 54, 356 P.3d 564,

cert. granted, 2015-NMCERT-008. A majority of the Court of Appeals determined that a

patient’s access to aid in dying did not implicate a fundamental liberty interest under Article

II, Section 4 of the New Mexico Constitution and therefore reversed the district court’s

conclusion that strict scrutiny should apply. Morris, 2015-NMCA-100, ¶¶ 1, 29-47. Judge

Timothy Garcia’s majority opinion concluded that physician aid in dying might qualify as

an important right subject to intermediate scrutiny, and Judge Garcia would have remanded

the case to the district court with instructions to determine whether an intermediate scrutiny
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test or a rational basis test was warranted and to apply the appropriate level of scrutiny to

Petitioners’ claims. Id. ¶¶ 49-54. Judge Miles Hanisee concurred in part, clarifying that he

would hold that aid in dying is neither a fundamental nor an important right, and that there

is a rational basis to justify applying Section 30-2-4 to physician aid in dying. Morris, 2015-

NMCA-100, ¶¶ 58-70 (Hanisee, J., concurring in part). Finally, Judge Linda Vanzi filed a

dissenting opinion. Based on recent trends in federal due process jurisprudence, Judge

Vanzi would “hold that Article II, Section 18 affords New Mexico citizens a fundamental,

or at least important, liberty right to aid in dying from a willing physician,” Morris, 2015-

NMCA-100, ¶ 104 (Vanzi, J., dissenting), and the articulated government interests, while

compelling or substantial in the abstract, do not justify infringing on the right, id. ¶ 121

(Vanzi, J., dissenting). Thus, the divided Court of Appeals opinion did not express a

majority view as to which level of scrutiny should apply. We address Petitioners’ due

process claims under Article II, Sections 4 and 18 of the New Mexico Constitution.

II. SECTION 30-2-4 PROHIBITS PHYSICIAN AID IN DYING

{14} We must first determine whether Section 30-2-4 applies to the practice of physician

aid in dying as described by Petitioners. If the statute does not apply, then it resolves the

case, and we need not address Petitioners’ constitutional claims. See Allen v. LeMaster,

2012-NMSC-001, ¶ 28, 267 P.3d 806 (“It is an enduring principle of constitutional

jurisprudence that courts will avoid deciding constitutional questions unless required to do

so. We have repeatedly declined to decide constitutional questions unless necessary to the

disposition of the case.” (internal quotation marks and citation omitted)). “Our principal

goal in interpreting statutes is to give effect to the Legislature’s intent.” Griego v. Oliver,

2014-NMSC-003, ¶ 20, 316 P.3d 865. We review issues of statutory interpretation de novo.

State ex rel. Children, Youth & Families Dep’t v. Maurice H. (In re Grace H.), 2014-NMSC034, ¶ 34, 335 P.3d 746.

{15} Section 30-2-4 prohibits “assisting suicide,” which is defined as “deliberately aiding

another in the taking of his own life.” Unless it would lead to an unreasonable result, we

regard a statute’s definition of a term as the Legislature’s intended meaning. Sw. Land Inv.,

Inc. v. Hubbart, 1993-NMSC-072, ¶ 6, 116 N.M. 742, 867 P.2d 412. Because Section 30-2-

4 explicitly defines “assisting suicide,” we must examine whether the conduct that

Petitioners refer to as physician aid in dying fits the statutory definition. Petitioners define

physician aid in dying as “the medical practice of providing a mentally-competent,

terminally-ill patient with a prescription for medication that the patient may choose to take

in order to bring about a peaceful death if the patient finds his [or her] dying process

unbearable.” As Petitioners’ own witnesses admitted during trial, and as is self-evident in

the very definition of aid in dying offered by Petitioners, the 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. In the context of Section 30-2-4, the wrongful act is “aiding,” which consists of

“providing the means to commit suicide,” as distinct from “actively performing the act which

results in death.” State v. Sexson, 1994-NMCA-004, ¶ 15, 117 N.M. 113, 869 P.2d 301. For
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For example, Dr. David Pollack, a licensed psychiatrist who teaches at the Center

for Ethics and Healthcare at Oregon Health and Science University, opined that a death from

aid in dying is not the same as a suicide. Suicide is typically brought on by a “psychiatric

condition” such as depression and is characteristically an “impulsive” and “solitary act.”

Accordingly, the family of a suicide victim will usually experience “surprise, . . . shock and

disbelief or anger, a whole set of emotional reactions . . . reflecting a lack of connection

between the person who committed suicide” and those closest to that person. By contrast,

aid in dying is characterized by a “deliberative process,” which “almost always involves the

person discussing [aid in dying] with [his or her] family and friends.” According to Dr.

Pollack, patients choose aid in dying “to alleviate symptoms, to spare others from the burden

of watching them dwindle away or be a shell of their former self [sic] or to feel like they are

in control, have some autonomy and some control over the way that they die.” As a result,

family members of patients who choose aid in dying and ultimately end their lives in that

manner “go through this process” with the patient, and are therefore “more prepared for the

person’s death and more at peace in relationship to it,” as compared with the family of a

suicide victim.

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aid in dying, the lethal dose prescribed by a physician is intended to provide the means for

a patient to end his or her own life, which is consistent with how “aiding” has been defined

under Section 30-2-4. Therefore, when providing aid in dying, a doctor prescribes a lethal

dose of barbiturates for the patient’s use as a means to end his or her own life—conduct

clearly encompassed by the plain language of Section 30-2-4.

{16} Petitioners raise several arguments as to why we should go beyond the plain language

of Section 30-2-4 and conclude that the Legislature did not intend that the criminal

prohibition on assisting suicide should apply to physician aid in dying. First, Petitioners

elicited detailed expert testimony explaining that the medical and psychological professions

do not consider a death from aid in dying to be a suicide1

 and that the medical profession

considers the underlying cause of death brought on by aid in dying to be the terminal illness

itself. According to Petitioners, Section 30-2-4 was only intended to address acts of suicide,

which are distinct from aid in dying. While Petitioners’ contentions regarding evolving

views on suicide and its distinctions from aid in dying are compelling, our analysis is bound

by the statutory language, which broadly defines suicide under Section 30-2-4 as “the taking

of [one’s] own life” and does not track such clinical and emotional distinctions urged by

Petitioners and recognized by professionals in the fields of medicine and psychology. See

§ 30-2-4. Second, Petitioners put forth related arguments that the Legislature could not have

considered aid in dying in 1963 when it passed Section 30-2-4 because that practice did not

arise in New Mexico until later, and that applying Section 30-2-4 to aid in dying would be

contrary to New Mexico’s well-established public policy of favoring patient autonomy in

end-of-life decision-making, as exemplified by New Mexico’s 1995 adoption of the

UHCDA. Indeed, New Mexico was the first state to adopt the UHCDA after the National

Conference of Commissioners on Uniform State Laws approved an almost identical model

act in 1993. Prot. & Advocacy Sys., Inc. v. Presbyterian Healthcare Servs.,
2

Petitioners have not raised the issue of whether a physician who provides aid in

dying could have a valid common law consent defense to homicide in New Mexico;

therefore, we do not address it here. Cf. State v. Fransua, 1973-NMCA-071, ¶ 4, 85 N.M.

173, 510 P.2d 106 (holding that New Mexico’s common law consent defense was not

available for a charge of aggravated battery because our state’s battery laws were intended

to protect the public from violent acts and to prevent a breach of the public peace).

3

Petitioners raised an equal protection claim before the district court, but the district

court did not address Petitioners’ equal protection claim and issued its decision solely on due

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1999-NMCA-122, ¶ 6, 128 N.M. 73, 989 P.2d 890. However, the UHCDA explicitly “does

not authorize mercy killing, assisted suicide, euthanasia or the provision, withholding or

withdrawal of health care, to the extent prohibited by other statutes of this state.” Section

24-7A-13(C) (emphasis added). Contrary to Petitioners’ claims, the UHCDA not only

distinguishes between “assisted suicide” and other end-of-life decision-making, but also

assumes that the practice is “prohibited by other statutes.” Importantly, the UHCDA was

adopted after the practice of aid in dying entered the public debate, yet the Legislature

persisted in refusing to authorize “assisted suicide” to the extent statutorily prohibited

elsewhere, which further belies Petitioner’s argument that the Legislature did not intend

Section 30-2-4 to apply to physician aid in dying. Third, Petitioners contend that in Baxter,

the Montana Supreme Court relied on that state’s public policy protecting patient autonomy

in medical decision-making to conclude that aid in dying was not prohibited by Montana’s

statutory prohibition on assisted suicide, and they urge this Court to do the same. 2009 MT

449, ¶¶ 25-28. However, Baxter has little persuasive value in this case because the Baxter

court merely determined that Montana’s statutory consent defense, Mont. Code Ann. § 45-2-

211 (1977, amended 2015), constituted a complete defense to a charge of homicide for a

physician who practiced aid in dying, so long as none of the exceptions to the consent statute

applied.2

 2009 MT 449, ¶ 50. By contrast, our inquiry in this case is different: we must

determine whether physician aid in dying could be prosecuted under our state’s homicide

statutes, a premise which the Baxter court apparently assumed. See id. ¶ 13. Thus, Baxter

also does not persuade us to diverge from a plain language interpretation of Section 30-2-4.

We therefore conclude that physician aid in dying falls within the proscription of Section 30-

2-4.

III. THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION

DOES NOT PROTECT THE RIGHT ASSERTED BY PETITIONERS

{17} Because we have determined that Section 30-2-4 could be applied to physician aid

in dying, we must now examine Petitioners’ constitutional claims. Petitioners contend that

application of Section 30-2-4 to physician aid in dying violates the due process provision in

Article II, Section 18 and the Inherent Rights Clause in Article II, Section 4 of the New

Mexico Constitution. We further note that Petitioners do not assert an equal protection

violation before us.3
process grounds. Therefore, an equal protection claim is not properly before us on appeal.

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{18} Our state constitution’s due process guarantees are analogous to the due process

guarantees provided under the United States Constitution. Article II, Section 18 of the New

Mexico Constitution provides, in relevant part, that “[n]o person shall be deprived of life,

liberty or property without due process of law . . . .” The Due Process Clause of the

Fourteenth Amendment to the United States Constitution similarly provides that no state

shall “deprive any person of life, liberty, or property, without due process of law . . . .”

{19} When analyzing a state constitutional provision with a federal analogue, this Court

employs the interstitial approach. State v. Gomez, 1997-NMSC-006, ¶ 20, 122 N.M. 777,

932 P.2d 1. Under the interstitial approach, we must first examine whether an asserted right

is protected under an equivalent provision of the United States Constitution. Id. ¶ 19. If the

right is protected, then, under the New Mexico Constitution, the claim is not reached. State

v. Gomez, 1997-NMSC-006, ¶ 19. If the right is not protected, then the Court must

determine whether “flawed federal analysis, structural differences between state and federal

government, or distinctive state characteristics” require a divergence from established

federal precedent in determining whether the New Mexico Constitution protects the right.

State v. Gomez, 1997-NMSC-006, ¶ 19. Although we have the power to “provide more

liberty than is mandated by the United States Constitution” when interpreting analogous

provisions in our own constitution, Gomez, 1997-NMSC-006, ¶ 17, “[t]he burden is on the

party seeking relief under the state constitution to provide reasons for interpreting the state

provisions differently from the federal provisions when there is no established precedent.”

ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, ¶ 18, 139 N.M. 761, 137 P.3d

1215.

{20} In Washington v. Glucksberg, 521 U.S. 702 (1997), the United States Supreme Court

answered a similar question to that posed by Petitioners. In Glucksberg, three patients in the

terminal phases of serious and painful illnesses; four doctors who practiced in Washington,

occasionally treated terminally ill patients, and expressed a willingness to assist patients to

end their lives if it were legal to do so; and an advocacy group sued, seeking a declaration

that the Washington statute that made it a crime to “aid[] another person to attempt suicide,”

Wash. Rev. Code § 9A.36.060 (1994, amended 2011), was facially unconstitutional. 521

U.S. at 707-08. The Glucksberg Court held that, “either on its face or ‘as applied to

competent, terminally ill adults who wish to hasten their deaths by obtaining medication

prescribed by their doctors,’ ” the Washington statute did not violate the Fourteenth

Amendment. Id. at 735 (citation omitted).

{21} The Glucksberg Court began its analysis by examining the nation’s history, legal

traditions, and practices. Id. at 710. The Court concluded that assisted-suicide bans are

deeply rooted in the nation’s history and for the most part remain unchanged in the codified

laws of the states. Id. at 715-16, 719. The Court acknowledged that at the time it was

considering the issue, states were engaged in “serious, thoughtful examinations of physician-
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assisted suicide and other similar issues,” id. at 719, noting that many states permitted

“ ‘living wills,’ surrogate health-care decisionmaking, and the withdrawal or refusal of lifesustaining medical treatment,” id. at 716 (citation omitted).

{22} The Glucksberg Court next turned to the Due Process Clause, inventorying the

fundamental rights and liberties not enumerated in the Bill of Rights that are still entitled to

heightened protection against government interference:

In a long line of cases, we have held that, in addition to the specific freedoms

protected by the Bill of Rights, the “liberty” specially protected by the Due

Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1,

87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); to have children, Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655

(1942); to direct the education and upbringing of one’s children, Meyer v.

Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v.

Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); to

marital privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14

L.Ed.2d 510 (1965); to use contraception, ibid.; Eisenstadt v. Baird, 405 U.S.

438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); to bodily integrity, Rochin v.

California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and to abortion,

[Planned Parenthood of Se. Pa. v.] Casey[, 505 U.S. 833 (1992)]. We have

also assumed, and strongly suggested, that the Due Process Clause protects

the traditional right to refuse unwanted lifesaving medical treatment. Cruzan

[ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990)].

Id. at 720.

{23} To avoid transforming liberties protected by the Due Process Clause to the policy

preferences of the Court, the Glucksberg Court emphasized the importance of requiring

parties to give careful descriptions of the asserted fundamental liberty interests to protect the

fundamental rights and liberties that objectively are deeply rooted in the nation’s history, and

are such that neither justice nor liberty would exist if the right were sacrificed. Id. at 720-21.

This approach was later criticized by the Court in Obergefell v. Hodges, ___ U.S. ___, ___,

135 S. Ct. 2584, 2602 (2015) (stating that although the Court’s analysis in Glucksberg,

which defined the right in the “most circumscribed manner, with central reference to specific

historical practices,” may have been appropriate for the right in that case, it was inconsistent

with the Court’s approach in discussing “other fundamental rights”). Chief Justice Roberts,

joined by Justices Scalia and Thomas, concluded that the Obergefell majority opinion

jettisoned the careful substantive due process approach announced in Glucksberg, effectively

overruling the approach. Obergefell, ___ U.S. at ___, 135 S. Ct. at 2620-21 (Roberts, J.,

dissenting).

{24} The fact remains that the Glucksberg Court held that it was not unconstitutional to

prohibit doctors from prescribing medication to competent, terminally ill adults who wish
13

to hasten their deaths, 521 U.S. at 735, and this holding has never been expressly overruled.

The Court reached its holding by defining the right as “a right to commit suicide with

another’s assistance.” Id. at 724. The Court concluded that the “almost universal tradition

that has long rejected the asserted right, and continues explicitly to reject it today” would

require the Court “to reverse centuries of legal doctrine and practice, and strike down the

considered policy choice of almost every State,” id. at 723, something the Court was

unwilling to do.

{25} The Glucksberg petitioners argued that the liberty interest they pursued was

consistent with the general tradition of “self-sovereignty” which included the “basic and

intimate exercises of personal autonomy,” primarily citing Cruzan and Casey in support of

their argument. Glucksberg, 521 U.S. at 724 (internal quotation marks and citation omitted).

In Cruzan, the Court assumed that the United States Constitution granted a competent person

a “constitutionally protected right to refuse lifesaving hydration and nutrition.” 497 U.S. at

279. However, the right identified in Cruzan was based on the history of the law of battery,

which is the “touching of one person by another without consent,” and the related common

law concept of “informed consent [being] generally required for medical treatment.” Id. at

269, 271-78. In Casey, the Court reaffirmed Roe v. Wade, 410 U.S. 113 (1973), and held

that a woman has a right to have an abortion before her fetus is viable without undue

government interference. Casey, 505 U.S. at 846. In so holding, the Casey Court stated,

“[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning,

of the universe, and of the mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under compulsion of the State.” Id.

at 851.

{26} The Glucksberg Court acknowledged that “many rights and liberties protected by the

Due Process Clause sound in personal autonomy,” but emphasized that this does not mean

that every important, intimate, and personal decision is so protected. 521 U.S. at 727. The

Court concluded that the right to commit suicide with another’s assistance “is not a

fundamental liberty interest that is protected by the Due Process Clause” because the history

of the law has banned and continues to ban assisted suicides. Id. at 728. Although the

asserted right was not a fundamental liberty interest, the Washington law prohibiting assisted

suicides still had to be rationally related to a legitimate government interest. Id.

{27} The Glucksberg Court articulated several government interests. The first interest is

the “unqualified interest in the preservation of human life,” regardless of the person’s

physical or mental condition. Id. at 728-29 (internal quotation marks and citation omitted).

The second interest is the “interest in preventing suicide, and in studying, identifying, and

treating its causes,” particularly since research indicated that if the patient responded to

treatment for depression and pain, many patients would withdraw the request for physician

aid in dying. Id. at 730. The third interest is the “interest in protecting the integrity and

ethics of the medical profession” since the American Medical Association and other medical

groups at the time concluded that a physician’s aid of a patient in dying was incompatible

with the physician’s role as a healer. Id. at 731. The fourth interest is the “interest in
14

protecting vulnerable groups—including the poor, the elderly, and disabled persons—from

abuse, neglect, and mistakes” since there was a “real risk of subtle coercion and undue

influence in end-of-life situations” and there was a risk that some would resort to physician

aid in dying “to spare their families the substantial financial burden of end-of-life health-care

costs.” Id. at 731-32. The fifth and final interest is the legitimate concern that recognizing

a right to physician aid in dying will lead to “broader” interpretations allowing voluntary or

involuntary euthanasia because if there is a right, it must be available to everyone, even

when a duly appointed surrogate makes the decision, and even when the patient is unable to

self-administer the life-ending medication. Id. at 732-33.

{28} The Glucksberg Court elected not to weigh the varying interests, concluding that

each is “unquestionably important and legitimate, and Washington’s ban on assisted suicide

is at least reasonably related to their promotion and protection.” Id. at 735. The Court

concluded that the “earnest and profound debate about the morality, legality, and

practicality” of physician aid in dying should continue, see id., presumably in the legislative

and executive branches of government.

{29} Although the Court held that the Washington law prohibiting assisted suicide did not

violate the Fourteenth Amendment “either on its face or as applied to competent, terminally

ill adults who wish to hasten their deaths by obtaining medication prescribed by their

doctors,” id. at 735 (internal quotation marks and citation omitted), the Court did not

“foreclose the possibility that an individual plaintiff seeking to hasten [his or] her death, or

a doctor whose assistance was sought, could prevail in a more particularized challenge,” id.

at 735 n.24 (internal quotation marks and citation omitted). What would constitute a “more

particularized challenge” was not made clear by the Court, other than to suggest that “such

a claim would have to be quite different from the ones advanced” in that case, id., leaving

a degree of uncertainty as to the extent and steadfastness of its holding.

{30} Justice Stevens, whose special concurrence in Glucksberg provoked the majority’s

concession in footnote 24, offered some insight into why a particularized challenge might

result in a different outcome. First, Justice Stevens noted that the three terminally ill patientplaintiffs in Glucksberg died after the district court ruled in their favor, and therefore no

individual plaintiff seeking to hasten her death or any doctor threatened with prosecution for

assisting in the suicide of a particular patient was before the Court. Id. at 739 (Stevens, J.,

concurring). Accordingly, Justice Stevens agreed that history and tradition did not support

“an open-ended constitutional right to commit suicide” or an absolute right to physician aid

in dying. See id. at 740, 745. However, Justice Stevens noted that Cruzan made clear that

“some individuals who no longer have the option of deciding whether to live or to die

because they are already on the threshold of death have a constitutionally protected interest

that may outweigh the State’s interest in preserving life at all costs.” Id. at 745. Thus, a

particularized showing might be made by a terminally ill patient who is “faced not with the

choice of whether to live, only of how to die,” and “who is not victimized by abuse, who is

not suffering from depression, and who makes a rational and voluntary decision to seek

assistance in dying” after being adequately informed about patient care alternatives. Id. at
15

746-48.

{31} We conclude that Glucksberg controls, and therefore that the United States

Constitution does not categorically protect Petitioners’ asserted right, although an opening

remains for a more particularized protection. Having determined that the right Petitioners

assert is not protected under the United States Constitution, we now turn to Petitioners’

claim that New Mexico’s ban on physician aid in dying, as applied to them, violates the due

process and inherent rights provisions of the New Mexico Constitution. We may diverge

from the Glucksberg precedent if we determine that the federal analysis is flawed or that

New Mexico has distinct characteristics in the relevant area or that structural differences

between our government and the federal government exist. Gomez, 1997-NMSC-006, ¶ 19.

For the reasons that follow, we choose not to deviate from either the ultimate holding in

Glucksberg or the suggestion that a more particularized showing might prevail.

IV. THE FEDERAL ANALYSIS SET FORTH IN GLUCKSBERG IS NOT

FLAWED

{32} The first reason we might depart from Glucksberg is if we conclude that the analysis

is flawed. Petitioners contend that the Glucksberg analysis is flawed for three reasons. They

argue that (1) the Glucksberg approach to substantive due process has since been abandoned;

(2) Glucksberg reviewed a facial challenge that did not have the evidence we have today that

demonstrates the safety of aid in dying; and (3) Glucksberg is in discord with New Mexico’s

distinct state characteristics.

{33} Petitioners are correct that the Obergefell majority took the Glucksberg Court to task

for defining the right in the most circumscribed manner, referring to historical practices,

because the analysis was inconsistent with how other fundamental rights had been defined

by the Court. See Obergefell, ___ U.S. at ___, 135 S. Ct. at 2602. To exemplify its concern,

the Obergefell majority stated:

Loving did not ask about a right to interracial marriage; Turner [v. Safley,

482 U.S. 78 (1987)] did not ask about a right of inmates to marry; and

Zablocki [v. Redhail, 434 U.S. 374 (1978)] did not ask about a right of

fathers with unpaid child support duties to marry. Rather, each case inquired

about the right to marry in its comprehensive sense, asking if there was a

sufficient justification for excluding the relevant class from the right.

Id. (internal quotation marks omitted). Despite the Court’s criticism of itself, we conclude

that the Glucksberg approach with respect to physician aid in dying is not flawed. It is much

more difficult to define the interest before us—as it was for the Glucksberg Court—because

unlike Loving, Turner, Zablocki, and Obergefell, which had as a tradition the fundamental

right to marry with all of the rights, responsibilities, and divorce procedures carefully

defined, we do not have such a tradition to fall back on regarding physician aid in dying.

Similarly, the Cruzan Court interpreted informed consent alongside the statutory prohibition
4

In Glucksberg, the American Medical Association concluded that “ ‘[p]hysicianassisted suicide is fundamentally incompatible with the physician’s role as healer.’ ” 521

U.S. at 731 (alteration in original) (quoting American Medical Association, Code of Ethics

§ 2.211 (1994)). We note that in New Mexico, as recently as November 2014, the New

Mexico Medical Board refused to adopt a standard of care for aid in dying; because there

was not a statute in place, some members were concerned that it would be premature to

create a standard of care for aid in dying before the Board knew whether it was a legal

practice. See New Mexico Medical Board, Regular Board Meeting, Nov. 13-14, 2014, Final

Minutes at 10, available at their website, http://www.nmmb.state.nm.us (last visited June 29,

2016). The Board minutes further note that the Board was “forced to [establish guidelines]

for chronic pain, but that was because there [was] a statute in place, and so unless a law is

passed requiring the Medical Board to have oversight of all compassionate end of life

assistance, then . . . this was bad for the practice of medicine.” Id. We therefore appreciate

that some members of the medical community understand this to be a legislative issue, and

that the question of whether aid in dying is truly an accepted medical practice currently

remains the subject of debate within the New Mexico medical community.

16

of battery to encompass the right of a competent adult patient to refuse medical treatment.

See 497 U.S. at 269, 277-79. There is a marked difference between refusing medical

treatment, even if doing so will hasten death, and seeking treatment which has for its

exclusive purpose the taking of one’s life. This was the dichotomy faced by the Glucksberg

Court. See 521 U.S. at 725 (“The decision to commit suicide with the assistance of another

may be just as personal and profound as the decision to refuse unwanted medical treatment,

but it has never enjoyed similar legal protection.”).

{34} Although this Court might quarrel with the emphasis placed on history and tradition

by the Glucksberg Court in defining the right, we agree with its analysis concerning

legitimate government interests, particularly the following three interests. First, we agree

with the “interest in protecting the integrity and ethics of the medical profession,”

Glucksberg, 521 U.S. at 731, because the New Mexico Medical Board, for several stated

reasons, as of November 2014 had declined to develop any guidelines or standards for aid

in dying.4

 Second, we agree with the “interest in protecting vulnerable groups—including

the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes” since there

is a “real risk of subtle coercion and undue influence in end-of-life situations,” and there is

a risk that some might resort to physician aid in dying “to spare their families the substantial

financial burden of end-of-life health-care costs.” 521 U.S. at 731-32. Third and perhaps

most important, we agree with the legitimate concern that recognizing a right to physician

aid in dying will lead to voluntary or involuntary euthanasia because if it is a right, it must

be made available to everyone, even when a duly appointed surrogate makes the decision,

and even when the patient is unable to self-administer the life-ending medication. Id. at 732-

33. We therefore determine that the federal analysis set forth in Glucksberg is not flawed.

This does not end our inquiry. We next determine whether there are distinctive state

characteristics contained in Article II, Section 18 of the New Mexico Constitution that justify
17

a departure from the federal analysis.

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

{35} Petitioners contend that New Mexico’s “long, proud, extraordinary history of

respecting patient autonomy and dignity at the end of life” is a distinctive characteristic

requiring additional state constitutional protections of the practice of physician aid in dying.

In support of this claim, Petitioners point to several New Mexico statutes which they contend

demonstrate the New Mexico Legislature’s “assiduous respect for the decision-making

autonomy of dying patients.” First, Petitioners note that New Mexico was the first state to

adopt the UHCDA. Pursuant to the UHCDA, patients may provide advance directives to

health care providers, including directives to withdraw or withhold life-sustaining treatment

and withdraw or withhold artificial nutrition and hydration. See §§ 24-7A-1(G), 24-7A-2.

Second, Petitioners observe that New Mexico was one of the first three states to recognize

advance directives in any form through its 1977 Right to Die Act, NMSA 1978, §§ 24-7-1

to -11 (1977, repealed 1997), which was replaced by the UHCDA. See 1997 N.M. Laws,

ch. 168. Third, Petitioners point out that the Pain Relief Act protects a patient’s right to

obtain pain relief, even in situations where death could result. See §§ 24-2D-1 to -6.

{36} We agree that the UHCDA, the Right to Die Act, and the Pain Relief Act support the

conclusion that New Mexico has historically placed great importance on patient autonomy

and dignity in end-of-life decision-making. However, Section 24-7A-13(C) of the UHCDA

expressly disavows assisted suicide, undercutting Petitioners’ assertion that the interests of

patient dignity and autonomy protected by the UHCDA also extend to physician aid in

dying. Even practices specifically allowed under the UHCDA, such as withdrawal or

withholding of life-sustaining treatment, must proceed in line with the UHCDA’s safeguards,

or else health care providers and individuals may be held liable. See generally § 24-7A-10.

For example, the UHCDA provides safeguards pertaining to the appointment of an agent to

carry out a patient’s end-of-life directives, § 24-7A-2(A)-(E), end-of-life decisions for

unemancipated minors, § 24-7A-6.1, the obligations of a health-care provider after receiving

a health-care decision or directive from a patient or a patient’s agent, § 24-7A-7,

determinations of a patient’s capacity with respect to such decisions, § 24-7A-11, and

disputes relating to end-of-life decisions, § 24-7A-14. These safeguards illustrate that New

Mexico also recognizes, as a companion to the core values of patient dignity and autonomy,

that end-of-life decisions are inherently fraught with the potential for abuse and undue

influence and that the law should provide positive protections to ensure that patients have

made a decision that is both informed and independent. The UHCDA may well provide a

road map for future legislators in determining the safeguards that are necessary to implement

a form of physician aid in dying, but the statute itself does not support the inference that

there is some special characteristic of New Mexico law that makes physician aid in dying

a fundamental right in this state. Far from being a distinct characteristic of New Mexico law
18

or a departure from federal law, the UHCDA codifies the right to refuse unwanted lifesaving

medical treatment that the Cruzan Court assumed existed under the United States

Constitution. See 497 U.S. at 279. Similar safeguards exist under the Pain Relief Act. See

§ 24-2D-3. Neither law provides a sufficient basis to depart from the established federal

analysis.

{37} Petitioners next cite both Protection and Advocacy System and State v. Roper,

1996-NMCA-073, 122 N.M. 126, 921 P.2d 322, to support their contention that New Mexico

case law uniquely “reflects distinctive commitment to medical autonomy and respect for

human dignity in the provision of medical care.” In Protection and Advocacy System, our

Court of Appeals described the UHCDA as reflecting a policy that “different patients can

make markedly different, but still reasonable, choices” regarding end-of-life issues

“depending on their religious beliefs, their assessments of the joys of life, their tolerance for

pain, their regard for others, and a multitude of other factors.” 1999-NMCA-122, ¶ 16. In

Roper, the Court of Appeals kept confidential a criminal defendant’s blood test results,

stating that doing so “gives the patient the power to reveal the private information to the

persons the patient chooses, reinforcing the [physician-patient] privilege’s policy of patient

autonomy and privacy.” 1996-NMCA-073, ¶ 13. Petitioners also allude to other implied,

rather than explicit, fundamental rights recognized by this Court, including the rights of

parents in the care, custody, and control of their children, State ex rel. Children, Youth &

Families Dep’t v. Pamela R.D.G. (In re Pamela A.G.), 2006-NMSC-019, ¶ 11, 139 N.M.

459, 134 P.3d 746; the right to freedom of personal choice in matters of family life,

Jaramillo v. Jaramillo, 1991-NMSC-101, ¶ 20, 113 N.M. 57, 823 P.2d 299; and the right to

familial integrity, Oldfield v. Benavidez, 1994-NMSC-006, ¶ 14, 116 N.M. 785, 867 P.2d

1167. According to Petitioners, a competent, terminally ill patient’s decision to seek

physician aid in dying “is rooted in these already recognized fundamental rights.”

{38} 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. The

language that Petitioners quote from Protection and Advocacy System describes the policy

behind the UHCDA, which, as previously discussed, explicitly does not authorize any form

of assisted suicide. Section 24-7A-13(C). Roper was decided based on physician-patient

privilege and the policy interest in preserving the confidentiality of physician-patient

interactions, not, as Petitioners suggest, any special state constitutional interest in patient

autonomy and privacy. 1996-NMCA-073, ¶¶ 5-13. Finally, the portions of Pamela A.G.,

Jaramillo, and Oldfield cited by Petitioners recognize fundamental liberty interests

established by federal law and do not establish any distinct feature of New Mexico law

describing an expanded right that might protect physician aid in dying. For these reasons,

we conclude that there are no distinctive state characteristics with respect to the due process

protections of Article II, Section 18 that warrant a departure from the federal analysis

holding that physician aid in dying is not a fundamental right.

VI. PHYSICIAN AID IN DYING IS NOT A FUNDAMENTAL OR IMPORTANT

RIGHT UNDER ARTICLE II, SECTION 4 OF THE NEW MEXICO
5

For example, provisions recognizing the inherent right to seek and obtain happiness

and safety appear in the constitutions of Iowa (Iowa Const. art. I, § 1); California (Cal.

Const. art. I, § 1) (amended in 1972 to include a right to privacy); Colorado (Colo. Const.

art. II, § 3); Idaho (Idaho Const. art. I, § 1) (recognizing the right to pursue happiness and

seek safety); Massachusetts (Mass. Const. Pt. I, art. 1); Nevada (Nev. Const. art. I, § 1); New

Hampshire (N.H. Const. Pt. 1, art. 2) (recognizing the right to seek and obtain happiness);

New Jersey (N.J. Const. art. I, § 1); North Dakota (N.D. Const. art. I, § 1) (amended in 1984

to include right to bear arms); Ohio (Ohio Const. art. I, § 1); Vermont (Vt. Const. Ch. I, art.

1); and West Virginia (W. Va. Const. art. III, § 1). Other state constitutions similarly

guarantee “the pursuit of happiness” as a natural or inherent right. See Joseph R. Grodin,

Rediscovering the State Constitutional Right to Happiness and Safety, 25 Hastings Const.

19

CONSTITUTION

{39} Petitioners also argue that Article II, Section 4 of the New Mexico Constitution is an

independent basis on which this Court could hold that there is a fundamental right to

physician aid in dying. Article II, Section 4 provides that “[a]ll 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.” Petitioners contend that, despite being

“seldom interpreted” by New Mexico courts, Article II, Section 4 protects “the right for a

terminal patient to choose a peaceful, dignified death through aid in dying.” Petitioners

argue that several opinions of this Court have acknowledged that Article II, Section 4

provides some unique sets of rights, even if the substance of those rights has remained

undefined. Petitioners also urge us to give effect to Article II, Section 4 and fulfill our duty

to construe our state constitution so that “no part is rendered surplusage or superfluous.”

Hannett v. Jones, 1986-NMSC-047, ¶ 13, 104 N.M. 392, 722 P.2d 643. Finally, Petitioners

cite several cases from other states that interpret inherent rights provisions similar to Article

II, Section 4 to guarantee rights to liberty in the home and familial protection. See Stemple

v. Herminghouser, 3 Greene 408, 413 (Iowa 1852) (Greene, J., dissenting); Hoff v. Berg,

1999 ND 115, ¶ 10, 595 N.W.2d 285, 289 (N.D. 1999).

{40} To ascertain the meaning of Article II, Section 4, we first examine the historical

“milieu” from which this provision emerged in an effort to shed light on how the framers of

our state constitution may have viewed it. See State v. Gutierrez, 1993-NMSC-062, ¶¶ 33-

35, 116 N.M. 431, 863 P.2d 1052 (reviewing the historical emergence of Article II, Section

10 of the New Mexico Constitution to determine its “scope, meaning, and effect”). The

language in Article II, Section 4 most likely originated from the natural rights provision in

the 1776 Virginia Declaration of Rights, codified in Article I, Section 1 of the Virginia

Constitution. Marshall J. Ray, What Does the Natural Rights Clause Mean to New Mexico?,

39 N.M. L. Rev. 375, 395 (2009). Similar guarantees of inherent or inalienable rights to life,

liberty, property, and seeking or pursuing and obtaining happiness have since been

incorporated into a variety of state constitutions,5

 and similar language most famously
L.Q. 1, 3-4 (1997) (citing examples). 

20

appears in the second paragraph of the Declaration of Independence. In recent years,

scholars have puzzled over the intended meaning and scope of such “natural rights clauses”

and divined a variety of possible influences, from Aristotle to John Locke, without coming

to any definitive conclusions as to whether provisions such as Article II, Section 4 were

originally intended to give rise to judicially enforceable rights, or were simply intended to

set forth the general aspirations of government. See Linda M. Keller, The American

Rejection of Economic Rights as Human Rights & the Declaration of Independence: Does

the Pursuit of Happiness Require Basic Economic Rights?, 19 N.Y.L. Sch. J. Hum. Rts. 557,

564-78, 598-605 (2003); Joseph R. Grodin, Rediscovering the State Constitutional Right to

Happiness and Safety, 25 Hastings Const. L.Q. 1, 11-19 (1997).

{41} State court jurisprudence on natural rights clauses up until the New Mexico

Constitution was drafted can be conceptualized under two broad “themes.” See Ray, supra,

at 390-94. First, most jurisdictions undertook a balancing test to weigh the exercise of the

natural right against the State’s inherent power to regulate public health, morals, and welfare.

Id. at 391 n.111 (listing cases). Second, other jurisdictions viewed natural rights provisions

as codifying the common law maxim, “Sic utere tuo ut alienum non laedas” (use your

property in such a manner as not to injure that of another), which recognizes that “the natural

rights clause would invalidate legislation adversely affecting personal liberty and happiness

unless the[] exercise [of personal liberty or happiness] in some way harms or presents an

actual and substantial risk of harm to another person.” Id. at 391-94. However, historical

interpretations of natural rights provisions provide “no conclusive evidence” as to the

purpose and effect that those who drafted the New Mexico Constitution may have envisioned

for Article II, Section 4. See Ray, supra, at 394.

{42} Adding to the ambiguous history of these provisions, some of the earliest cases

interpreting state constitutional natural rights clauses assumed that they protected a wide

variety of individual rights against state action. For example, at least five states relied on

the guarantee of their natural rights provisions that all men are born equally free to declare

slavery unconstitutional. See Steven G. Calabresi & Sofia M. Vickery, On Liberty and the

Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights

Guarantees, 93 Tex. L. Rev. 1299, 1328-46 (2015) (describing cases). Similarly, the Maine

Supreme Court relied on the natural rights provision contained in the Maine Constitution to

hold that Native Americans living in Maine could enter into valid contracts, Murch v. Tomer,

21 Me. 535, 537 (1842), and that African-Americans could be citizens of Maine, Op. of the

Supreme Judicial Court, 44 Me. 507, 515-16 (1857), and had a right to vote, Op. of Judge

Appleton, 44 Me. 521, 522 (1857). Further, in one of the only cases to assume an affirmative

right to pursue happiness, the Indiana Supreme Court held that a state prohibition law was

unconstitutional because it violated “natural rights” preserved by the Indiana Constitution,

including “life, liberty, and the pursuit of happiness.” Herman v. State, 8 Ind. 545, 556, 567

(1855). The Herman court conceived of these rights in the context of economic liberty,
21

including “pursuing trade and business for the acquisition of property, and . . . pursuing our

happiness in using [our liberty],” and held that Indiana’s legislature could not take away an

individual’s right to freely select what to eat or drink. Id. at 557-59; cf. Sheppard v.

Dowling, 28 So. 791, 795 -96 (Ala. 1900) (upholding as constitutional a statute regulating

dispensary of liquor and stating, “[p]ursuit of happiness is one of the citizen’s inalienable

rights. But the lines of such pursuit are not unlimited. A man’s chief joy may be in the

death of his enemy, yet the law does not allow him to pursue happiness in that direction.”).

{43} Modern courts have arrived at differing conclusions as to whether these provisions

create judicially enforceable rights and the meaning of those rights. For example, federal

courts do not recognize any independent cause of action arising from the natural rights

guarantee in the Declaration of Independence, which they instead regard as “a statement of

ideals, not law.” Swepi, LP v. Mora Cty., N.M., 81 F. Supp. 3d 1075, 1172 (D.N.M. 2015)

(internal quotation marks and citation omitted); see also Troxel v. Granville, 530 U.S. 57,

91 (2000) (Scalia, J., dissenting) (“The Declaration of Independence, however, is not a legal

prescription conferring powers upon the courts . . . .”); Coffey v. United States, 939 F. Supp.

185, 190-91 (E.D.N.Y. 1996) (concluding that the plaintiff had failed to state a legal cause

of action when he claimed a violation of his right to pursue happiness because the

Declaration of Independence does not create judicially enforceable rights). Although natural

rights provisions in state constitutions are guarantees, unlike the rights announced by the

Declaration of Independence, some state courts have followed the federal example and

interpreted constitutional natural rights provisions as merely aspirational and not subject to

judicial enforcement. See, e.g., Sepe v. Daneker, 68 A.2d 101, 105 (R.I. 1949) (confirming

language in the Rhode Island Constitution’s due process and equal protection provision

stating that “[a]ll free governments are instituted for the protection, safety and happiness of

the people” was merely advisory and did not give rise to a judicially enforceable right

(internal quotation marks and citation omitted)).

{44} By contrast, some states, such as Iowa, treat their natural rights clauses as granting

judicially enforceable rights. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 176 (Iowa

2004) (stating that “the constitutional protection embodied in Iowa’s Inalienable Rights

Clause is not a mere glittering generality without substance or meaning,” but is instead

“intended to secure citizens’ pre-existing common law rights (sometimes known as ‘natural

rights’) from unwarranted government restrictions” (internal quotation marks and citation

omitted)). However, those cases generally acknowledge that natural rights provisions do

not codify absolute or fundamental rights, but instead recognize that natural rights are still

subject to reasonable regulation by the state in the exercise of its police power. See id.; see

also Concerned Dog Owners of Cal. v. City of Los Angeles, 123 Cal. Rptr. 3d 774, 789 (Cal.

Ct. App. 2011) (liberties enumerated in the Natural Rights Clause in the California

Constitution are circumscribed by the requirements of public health and safety and are

generally subject to reasonable regulation). Other modern court decisions have interpreted

constitutional natural rights provisions to protect privacy and personal liberty. See

Commonwealth v. Wasson, 842 S.W.2d 487, 494-99, 501-502 (Ky. 1992) (striking down a

law prohibiting private sexual acts based on a right of privacy emanating from Kentucky’s
22

natural rights provision); In re Quinlan, 355 A.2d 647, 663-64 (N.J. 1976) (determining that

New Jersey’s natural rights provision guarantees a right of privacy); Planned Parenthood

of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 4, 13 (Tenn. 2000) (determining that a

fundamental right of privacy arising from Tennessee’s natural rights provision, among

others, required strict scrutiny review of certain abortion restrictions); but cf. Benning v.

State, 641 A.2d 757, 761 (Vt. 1994) (rejecting existence of a broad constitutional “right to

be let alone” in Vermont’s natural rights provision).

{45} Similar to the cases from Iowa and California discussed above, the earliest New

Mexico cases analyzed Article II, Section 4 in the context of economic and property rights

and balanced an individual’s inherent rights against the state’s general powers to regulate

and to protect the public. In State v. Brooken, 1914-NMSC-075, ¶¶ 1, 12-14, 17, 19 N.M.

404, 143 P. 479, the first case to discuss Article II, Section 4, this Court upheld a law that

prohibited, with limited exceptions, interfering with the freedom of unaccompanied cattle

under the age of seven months. The challenger in that case claimed, in part, that

enforcement of the law violated his “constitutional right of acquiring, possessing, and

protecting property” by preventing him from holding calves under herd. Brooken, 1914-

NMSC-075, ¶ 8. We clarified that, under its police power, the Legislature could “provide

reasonable regulations for the use and enjoyment of property” when such regulations were

necessary “for the common good and the protection of others.” Id. ¶¶ 9, 13; see also Otero

v. Zouhar, 1984-NMCA-054, ¶ 43, 102 N.M. 493, 697 P.2d 493 (holding, without further

explanation, that “inherent and inalienable rights to acquire property” under Article II,

Section 4 “are not absolute, but subject to reasonable regulation”), aff’d in part and rev’d

in part on other grounds by Otero v. Zouhar, 1985-NMSC-021, 102 N.M. 482, 697 P.2d

482, overruled on other grounds by Grantland v. Lea Reg’l Hosp., Inc., 1990-NMSC-076,

110 N.M. 378, 796 P.2d 599.

{46} In recent years, New Mexico courts have invoked Article II, Section 4 as a prism

through which we view due process and equal protection guarantees. For example, in

California First Bank v. State, we recognized in dicta that Article II, Section 4 should not

be given the same breadth as the Due Process Clause in the United States Constitution

because of the specificity of the rights in Article II, Section 4. 1990-NMSC-106, ¶ 44, 111

N.M. 64, 801 P.2d 646. In that case, we reasoned that unlike the Fourteenth Amendment,

“Article II, Section 4 expressly guarantees the right ‘of seeking and obtaining safety,’ ” and

thus, in “interpreting the more expansive language of Article II, Section 4,” courts should

be “mindful of the more intimate relationship existing between a state government and its

people, as well as the more expansive role states traditionally have played in keeping and

maintaining the peace within their borders.” Cal. First Bank, 1990-NMSC-106, ¶ 44. Yet

California First Bank expressly did not address which specific protections are provided by

Article II, Section 4, and it expressly did not elaborate on whether a violation of this

provision alone could ever give rise to a cause of action. Cal. First Bank, 1990-NMSC-106,

¶ 45.

{47} We took our dicta from California First Bank one step further by incorporating
23

Article II, Section 4 as a central component of our due process analysis in Reed v. State ex

rel. Ortiz. See 1997-NMSC-055, ¶¶ 101-05, 124 N.M. 129, 947 P.2d 86, rev’d, New Mexico

ex rel. Ortiz v. Reed, 524 U.S. 151 (1998). Reed was a criminal justice activist and former

prisoner who fled Ohio and ended up in Taos, New Mexico. Id. ¶¶ 3-4, 9-10, 29-30. When

the Governor of Ohio sought to extradite Reed and Reed was arrested by authorities in New

Mexico, he filed a petition for writ of habeas corpus to challenge the constitutionality of his

arrest. Id. ¶ 35. We affirmed the district court’s grant of habeas corpus and held that Reed

was not a “fugitive from justice,” and thus did not qualify for extradition under the factors

set forth in Michigan v. Doran, 439 U.S. 282 (1978). Reed, 1997-NMSC-055, ¶¶ 1, 40, 44,

126. The U.S. Supreme Court later issued a short per curiam opinion reversing our ruling,

disavowing this Court’s reliance on Reed’s claims to determine that he was not a fugitive,

and ordering that Reed be extradited because this Court’s inquiry “went beyond the

permissible inquiry in an extradition case, and permitted the litigation of issues not open in

the asylum State.” New Mexico ex rel. Ortiz, 524 U.S. at 155. However, our discussion of

Article II, Section 4 remains instructive because the United States Supreme Court opinion

did not affect our interpretation of that provision.

{48} Having determined that Reed was not a fugitive, we viewed his due process rights

through the lens of his right to seek and obtain safety under Article II, Section 4. Reed,

1997-NMSC-055, ¶¶ 101-05. We observed that Article II, Section 4 guarantees the

enjoyment of life and liberty as a natural, inherent, and inalienable right, and “accords the

same value to the right ‘of seeking and obtaining safety and happiness.’ ” Reed, 1997-

NMSC-055, ¶ 102 (quoting N.M. Const., art. II, § 4). We explained that in the extraordinary

circumstances of Reed’s case—namely that there was undisputed evidence that Ohio

officials would deprive Reed of his liberty, and possibly even his life, without due

process—“the New Mexico Constitution requires the protection of [Reed’s] life and safety.”

Reed, 1997-NMSC-055, ¶ 103 (citing N.M. Const., art. II, §§ 4, 18). We acknowledged that

New Mexico courts “have not fully defined the scope of [Article II, Section 4],” but reasoned

that “it certainly applies to individuals like Reed who were threatened with death or great

bodily harm by government officials of another state, and who had no recourse or remedy

within that threatening state.” Reed, 1997-NMSC-055, ¶ 105. We concluded that Article

II, Section 4 created “a more expansive guarantee of obtaining safety” than the guarantee

under the United States Constitution. Reed, 1997-NMSC-055, ¶ 105 (internal quotation

marks omitted).

Reed faced the deprivation of his life without due process of law if he had

remained in Ohio. The New Mexico Constitution cannot tolerate such an

outcome. NM Const. art. II, §§ 4 & 18. Moreover, Reed was precluded from

seeking safety in Ohio. . . . He fled to New Mexico for the express purpose

of finding safety. For this reason, Reed properly comes under the protection

of Article II, Section 4 of the New Mexico Constitution which guarantees the

right “of seeking and obtaining safety.” Reed did not flee from justice. He

sought refuge from injustice.
24

Reed, 1997-NMSC-055, ¶ 124.

{49} Recently in Griego, we quoted Article II, Section 4 before examining equal

protection under its lens. See 2014-NMSC-003, ¶ 1; cf. Gulf, C. & S. F. Ry. Co. v. Ellis, 165

U.S. 150, 160 (1897) (“[I]t is always safe to read the letter of the constitution in the spirit of

the Declaration of Independence. No duty rests more imperatively upon the courts than the

enforcement of those constitutional provisions intended to secure that equality of rights

which is the foundation of free government.”). Without question, Article II, Section 4

informed our analysis in Griego because marriage, which is a deeply personal human

relationship, can be important to the enjoyment of life, liberty, and the pursuit of happiness,

and important to the protection of property interests. See, e.g., 2014-NMSC-003, ¶¶ 1, 4.

However, Article II, Section 4 did not create the marital relationship at issue in Griego; civil

marriage was a historical right created by the Legislature. See 2014-NMSC-003, ¶¶ 20-23.

We interpreted the existing marriage laws to have as their purpose bringing “stability and

order to the legal relationship of committed couples by defining their rights and

responsibilities as to one another, their children if they choose to raise children together, and

their property.” Id. ¶ 6. The question was whether the Legislature could constitutionally

deprive committed same-gender couples from “entering into a purely secular civil marriage

and securing the accompanying rights, protections, and responsibilities of New Mexico

laws” granted to opposite-gender couples, id. ¶ 3, when the disparity in treatment of these

groups was viewed in the context of Article II, Section 4, id. ¶ 1. However, as in Reed,

Griego did not construe Article II, Section 4 as an enforceable independent source of

individual rights, but rather as an overarching principle which informed the equal protection

guarantee of our Constitution. See generally 2014-NMSC-003.

{50} We have also declined to interpret Article II, Section 4 as creating a right to full

recovery in tort actions. See, e.g., Trujillo v. City of Albuquerque, 1990-NMSC-083, ¶¶ 22-

23, 110 N.M. 621, 798 P.2d 571 (stating that Article II, Section 4 does not afford more

protection to victims of governmental torts than do the provisions of Article II, Section 18),

overruled by Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d

305; Richardson v. Carnegie Library Restaurant, Inc., 1988-NMSC-084, ¶ 29, 107 N.M.

688, 763 P.2d 1133 (declining to interpret Article II Section 4 “as implicitly guaranteeing

a fundamental right to full recovery in tort actions”), overruled by Trujillo,

1998-NMSC-031.

{51} No New Mexico case provides any meaningful support to Petitioners’ claim that

Article II, Section 4 establishes a fundamental right “for a terminal patient to choose a

peaceful, dignified death through aid in dying.” Although Article II, Section 4 should inform

our understanding of New Mexico’s equal protection guarantee, see Griego, 2014-NMSC003, ¶ 1, and may also ultimately be a source of greater due process protections than those

provided under federal law, see Cal. First Bank, 1990-NMSC-106, ¶ 44, the Inherent Rights

Clause has never been interpreted to be the exclusive source for a fundamental or important

constitutional right, and on its own has always been subject to reasonable regulation.

Therefore, Petitioners have not established a fundamental or important right to aid in dying
25

under Article II, Section 4.

VII. THERE IS A RATIONAL BASIS FOR THE SECTION 30-2-4 PROHIBITION

OF PHYSICIAN AID IN DYING

{52} Although we do not recognize a fundamental or important right to physician aid in

dying, Section 30-2-4 must still be rationally related to legitimate government interests to

be constitutional as applied to physician aid in dying. See Wagner v. AGW Consultants,

2005-NMSC-016, ¶¶ 24, 25, 29, 31, 137 N.M. 734, 114 P.3d 1050. We respectfully

acknowledge the magnitude and importance of the very personal desire of a terminally ill

patient to decide how to safely and peacefully exit a painful and debilitating life. The

personal autonomy to make one’s own medical decisions, even those that can hasten one’s

own death, are recognized in the UHCDA and the Pain Relief Act, which provide numerous

safeguards to protect the integrity of those decisions. The State concedes that it does not

have an interest in preserving a painful and debilitating life that will end imminently.

However, the State does have a legitimate interest in providing positive protections to ensure

that a terminally ill patient’s end-of-life decision is informed, independent, and procedurally

safe.

{53} Petitioners rely on the statutory schemes in other states to guide the discussion of

who would qualify for physician aid in dying. Oregon’s Death with Dignity Act, the basis

for the standard of care guiding Dr. Kress’s practice, sets forth detailed guidelines and

procedural protections that doctors must follow to legally provide this option to their

terminally ill patients. To be eligible for aid in dying, the patient must be an adult, be

suffering from a terminal disease, be an in-state resident, and have “voluntarily expressed

his or her wish to die.” See Or. Rev. Stat. § 127.805(1). “Terminal disease” is defined as

an incurable and irreversible disease that “will, within reasonable medical judgment, produce

death within six months.” Id. § 127.800(12). On behalf of Petitioners, Dr. Gideonse

testified that doctors are accustomed to determining to a reasonable medical certainty

whether a patient has less than six months to live because that prognosis is already required

to place a patient into hospice care. In other words, a terminal diagnosis is not a feature

unique to aid in dying. To be eligible, the patient must also have been judged “capable,”

which means that in the opinion of the patient’s attending physician, a court, or the patient’s

psychiatrist, the patient “has the ability to make and communicate health care decisions . . .

including communication through persons familiar with the patient’s manner of

communicating.” See id. § 127.800(3). There is no legal requirement that doctors in Oregon

provide aid in dying to a qualifying patient, and individual health care providers can

explicitly prohibit the practice. Id. § 127.885(4)- (5).

{54} Further, under the Oregon statute, two physicians must separately determine the

patient’s eligibility for aid in dying. See id. § 127.820. Dr. Kress gave an example where

he sought the opinion of five other physicians who had treated a patient—a

gastroenterologist, an oncologist, a surgeon, a radiologist, and a family medicine

physician—as to whether the patient was terminally ill. If any examining physician
26

determines that the patient is suffering from impaired judgment due to depression or a

psychological disorder, that physician must refer the patient to counseling, and no physician

can prescribe a lethal dose to the patient. See id. § 127.825. Indeed, Dr. Kress testified that

under the proper standard of care, he will not prescribe a lethal dose unless the patient is

“clear and assertive” in requesting aid in dying. Additionally, Dr. Gideonse testified that

doctors often make judgments regarding a patient’s competency to make important medical

decisions, and the aid in dying situation is not significantly different. The patient must also

be informed of (a) his or her medical diagnosis; (b) his or her prognosis; (c) the potential

risks associated with the fatal dose of medication; (d) the probable result of taking the

medication, which usually results in a loss of consciousness and death within minutes; and

(e) feasible alternatives including hospice care, comfort care, and pain control. See id. §§

127.800(7), 127.830. In sum, it is apparent that the right described by Petitioners and, by

extension, the standard of care essential to that right, has been thoroughly defined through

legislation in states such as Oregon, where physician aid in dying is legal.

{55} The Obergefell Court concluded that defining rights in their most comprehensive

sense is the correct approach for the federal substantive due process analysis. ___ U.S. at

___, 135 S. Ct. at 2602-03. Far from defining the asserted right in this case, i.e., the right

to a physician’s aid in dying, in its comprehensive sense through judicial ruling, it is clear

to us that such a right cannot be defined without comprehensive legislation.

{56} New Mexico, like the rest of the nation, has historically sought to deter suicides and

to punish those who assist with suicide, with limited exceptions in the UHCDA and the Pain

Relief Act. However, these exceptions occurred as a result of debates in the legislative and

executive branches of government, and only because of carefully drafted definitions and

safeguards, which incidentally are consistent with the safeguards urged by Petitioners.

Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to

those previously identified in paragraph 35 of this opinion, the following reflect other

safeguards relevant to our analysis. “Life-sustaining treatment” is specifically defined.

Section 24-7A-1(K). An insurer is prohibited from conditioning the sale of insurance on the

execution of an advance health care directive. Section 24-7A-2.1(B). A health care provider

cannot condition the provision of health care to the patient on the patient signing or revoking

a health care directive. Section 24-7A-7(H). A health care provider may decline to comply

with a health care decision “for reasons of conscience,” but must treat the patient and make

reasonable efforts to transfer the patient to a provider who is willing to comply with the

patient’s directive. Section 24-7A-7(E), (G). The patient or his or her agent, surrogate, or

guardian may petition a court to enjoin or authorize a health care directive. Section 24-7A14. These and other provisions of the UHCDA further many of the government interests

recognized by the Glucksberg Court as unquestionably legitimate, and which made

Washington’s ban on physician aid in dying reasonably related to their promotion and

protection. See Glucksberg, 521 U.S. at 728-35. Indeed, if such exceptions and carve-outs

to the historical national public policy of deterring suicide properly exist, they are certainly

borne of the legislature and not the judiciary.
27

{57} In Trujillo, 1998-NMSC-031, ¶¶ 27, 30, 32, we adopted a rational basis test different

than the federal rational basis test. This test requires the challenger to demonstrate that the

legislation is not supported by a firm legal rationale or evidence in the record. Wagner,

2005-NMSC-016, ¶ 24. We are persuaded that end-of-life decisions are inherently fraught

with the potential for abuse and undue influence as evidenced by the protections outlined in

the UHCDA and the Pain Relief Act, and therefore the government interests we have

identified, similar to those in Glucksberg, are supported by a firm legal rationale. Applying

this to Petitioners’ challenge, we conclude that there is a firm legal rationale behind (1) the

interest in protecting the integrity and ethics of the medical profession; (2) the interest in

protecting vulnerable groups—including the poor, the elderly, and disabled persons—from

abuse, neglect, and mistakes due to the real risk of subtle coercion and undue influence in

end-of-life situations or the desire of some to resort to physician aid in dying to spare their

families the substantial financial burden of end-of-life health care costs; and (3) the

legitimate concern that recognizing a right to physician aid in dying will lead to voluntary

or involuntary euthanasia because if it is a right, it must be made available to everyone, even

when a duly appointed surrogate makes the decision, and even when the patient is unable to

self-administer the life-ending medication. See 521 U.S. at 731-33; Part III, ¶ 27, supra.

Petitioners nonetheless maintain that the Glucksberg Court either did not have the same

evidence before it that we do today, including data from several states and established

practices in those states, and therefore concerns addressed in Glucksberg are no longer valid,

or never came to fruition. However, in New Mexico these very concerns are addressed in

the UHCDA, which was most recently amended in 2015, indicating not only the desirability

of legislation in areas such as aid in dying, but also reflecting legitimate and ongoing legal

rationales that Glucksberg raised nearly twenty years ago which endure today. Although it

is unlawful in New Mexico to assist someone in committing suicide, the exceptions

contained within the UHCDA and the Pain Relief Act narrow the statute’s application,

provided that physicians comply with the rigorous requirements of each act. Therefore,

when the relevant legislation is read as a whole, Section 30-2-4 is rationally related to the

aforementioned legitimate government interests. If we were to recognize an absolute,

fundamental right to physician aid in dying, constitutional questions would abound regarding

legislation that defined terminal illness or provided for protective procedures to assure that

a patient was making an informed and independent decision. Regulation in this area is

essential, given that if a patient carries out his or her end-of-life decision it cannot be

reversed, even if it turns out that the patient did not make the decision of his or her own free

will.

VIII. CONCLUSION

{58} Pursuant to New Mexico’s heightened rational basis analysis, and based on the

record before us and the arguments of the parties, we conclude that although physician aid

in dying falls within the proscription of Section 30-2-4, this statute is neither unconstitutional

on its face nor as it is applied to Petitioners. For the foregoing reasons, we reverse the

district court’s contrary conclusion and remand to the district court for proceedings

consistent with this opinion.
28

{59} IT IS SO ORDERED.

____________________________________

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________

CHARLES W. DANIELS, Chief Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

 BARBARA J. VIGIL, Justice

____________________________________

JAMES M. HUDSON, District Judge

Sitting by designation