If you were a doctor who had the chance to be of service to someone who was begging for your help, someone who was on the threshold of a horrible and painful death, wouldn’t you try to help them relieve their own suffering if there was a legal way to do so — especially if you knew they were going to die soon anyway? And what if that way was not only legal but totally in keeping with our culture’s beliefs in the autonomy and free agency of self-determining adult human beings — wouldn’t you want to help them take charge of their own reality and end their suffering, if you could?
What kind of physician would you be if you didn’t? Perhaps you’re worried about the potential legal and financial consequences, perhaps you haven’t thought the matter through to your satisfaction and are uncertain. Or there’s a good chance, it seems to me, that you might be a physician more concerned about politics than about the comfort and well being of your suffering patients. You might be a member of the Christian Medical and Dental Association (CMDA), a political organization which recently brought a suit against the State of New Mexico and its 2021 “Elizabeth Whitefield End-of-Life Options Act” (EOLOA). This humane law makes it possible for terminally ill patients, with two documented prognoses of six months or less to live, to end their own lives and suffering if they so choose, in a humane and medically cogent way. The Act does not sanction “assisted suicide” of the mentally ill, the healthy, the depressed, or even people with horrendous neurological disorders, but no terminal prognosis. Its provisions are reserved for usually older people, or people suffering prematurely from terminal cancers and other diseases.
Why would CDMA oppose this? In this day and age, it seems to me, CDMA could well be made up of physicians who identify with the various prejudices that animated the Presidency of Donald Trump and that motivated his administration’s by now notorious, and debunked, “Denial of Care Rule.” The 2019 rule was named by Trump’s Department of Health and Human Services (HHS) as the “Protecting Statutory Conscience Rights in Health Care” rule. It tried to “weaponize” so-called religious freedom and use it to deny health care to individuals who some religious orders considered to be — how should I put it — living in sin. That would include sick children of lesbian couples, people with AIDS-HIV, or interfaith and inter-racial couples and transgender youth, according to Americans United for Separation of Church and State who oppose the Denial of Care rule. The rule was struck down by a U.S. District Court in Northern California in 2019, and to my knowledge has not been appealed.
The Denial of Care rule, according to Salon, is associated with research done by Trump campaign manager and senior counselor Kellyanne Conway when she was affiliated in 2009 with the Christian Medical and Dental Association. When creating the rule, Trump’s HHS “heavily cites” what Salon describes as a “junk poll” Conway created for physicians who support denial of care as a way of exercising conscience, and, dare I say, political preference.
Is it possible that a Christian medical association could actually espouse principles that amounted to a kind of ageism and a prejudice against the terminally ill? Is it possible that such a group would actually deny a dying elderly person, or a poor soul stricken by a dreaded disease, the right to end his or her own suffering, and do so on the grounds of “conscience?”
What the CMDA is objecting to in its lawsuit against the EOLOA is language in the Act that they claim forces physicians who oppose any form of medical aid in dying to tell their patients about all their options. And it falsely accuses the EOLOA of penalizing doctors who won’t inform their patients about the EOLOA. But the lawsuit is about more than that. It seems clear to me that it seeks to tarnish not only the legality but also the “morality’ of the EOLOA, a law that was duly agreed upon, in accordance with the New Mexico Constitution, by both houses of the state legislature and the governor of the people of our state.
I suppose if you believe that your religion was the only religion of value, and if you support some version of a theocratic state — forbidden of course by the First Amendment — you might claim the rights of your own conscience over the rights of dying patients to know what is available to them to end their suffering.
The CMDA’s lawsuit is riddled with false claims. It charges that the state of New Mexico can use EOLOA to force “objecting health care professionals to speak a certain message about assisted suicide, and forces them to provide proximate, formal, and material cooperation in an unethical and sinful act.” From my reading, however, the EOLOA does no such thing. Medical aid in dying is not “assisted suicide.” It is only a means for the already dying to achieve the peaceful death they want.
What the CMDA is objecting to, and creating a fiction about, is the clause in the EOLOA that reads, “A health care provider shall inform a terminally ill patient of all reasonable options related to the patient’s care that are legally available to terminally ill patients that meet the medical standards of care for end-of-life-care.”
It’s plain to me that there is no “formal, and material cooperation” required, nor that “a certain message about assisted suicide” is ever mentioned. In fact, the EOLOA specifically states that “a person shall not be subject to civil or criminal liability, licensing sanctions or other professional disciplinary action for: participating, or refusing to participate in medical aid in dying in good faith compliance with the provisions of” the EOLOA. The EOLOA goes on to say that “No health care provider who objects for reasons of conscience to participate in the provision of medical aid in dying shall be required to participate in the provision of medical aid in dying under any circumstance (italics mine).”
The CMDA lawsuit seems to be setting up a fictional “straw man,” if you will, creating its own version of the EOLOA to attack, a version which does not in fact exist. This seems to me to be in keeping with certain “Big Lie” strategies practiced by far right politicians and their various think tanks and political affiliates of late. And, as such, I see the CMDA lawsuit as a malicious nuisance designed to cast doubt on a legal humanitarian instrument by which terminally ill people may, as sovereign individuals with inalienable agency, self-administer medicines to end their own suffering.
If the CDMA’s politically motivated legal maneuvering isn’t an “unethical and sinful” movida itself, then nothing is.
*Nullius in verba: take nobody’s word for it
I am so glad to welcome to 2023 with the renewal of these important columns. This one is especially important. If we don’t preserve the good law that we have, if we don’t resist with ever fiber of our being the spurious efforts to take that law from us for devious political reasons, we may find ourselves without the help we need when we need it and are no longer strong enough to fight for the rights every human deserves. Thank you, V. B., for this column, informative and brilliant as always.
The Denial of Care Rule is one of those political cruelties that became almost unremarkable during the god-awful time of Trump. The weaponization of “conscience rights” is an especially cynical organizing principle. I remember when I was giving a talk, along with others, where we were each asked to deliver our personal manifesto. One of my bullet points was The Separation of Church and Hate. Hatred is a particularly profound and effective organizing principle within the Christian nationalist movement.
Thank you for this column.
Politics as usual? Say it ain’t so, Joe, Say it ain’t so.
And . . . DAMN that’s a great photo of you, V.D.
Thanks so much for your thoughtful comments. What is so distressing about this is that the New Mexico Legislature did little more than codify the common law of informed consent by adding the “Right to Know” provision which is now under attack by the CDMA to the End of Life Options Act . The function of informed consent law, of course, is to preserve the autonomy of patients and to encourage trust between providers and patients.
The provider-patient relationship is based on trust, and patients cannot trust their providers if those patients don’t know if their providers are hiding available options. Can quacks simply ignore medical research and instruct patients to choose treatments that would financially benefit the providers? I suppose the CDMA believes that providers who don’t believe that blood transfusions are morally justifiable would be able to skip explaining that alternative form of treatment, even if it would be lifesaving. Could a provider who believes that it is generally morally required to perform an abortion to preserve the life or health of the mother avoid telling his patient of the option of continuing the pregnancy? This isn’t a political issue — neither the right nor the left should use their position of power with regard to their patient to mislead the patient about available legal options. We all see providers with values that vary from our own. We need the doctrine of informed consent.