Copyright © 2023 Albuquerque Journal
CEDAR CREST – Phyllis Bergman watched one of her sisters suffer as she waited for death.
The other had a much different end.
She drank a prescribed medication that put her to sleep before stopping her heart and lungs, making her the first person in Bernalillo County to use New Mexico’s medical aid-in-dying law, in 2021.
“I’ve been a hospice nurse,” Bergman said, “and I’d say that’s the most peaceful death I have ever seen.”
Bergman, who lives in Cedar Crest, is among the growing number of New Mexicans whose relatives have used the state’s End-of-Life Options Act. It allows terminally ill adults to seek a doctor’s help to end their life.
More than 130 people took the life-ending medication in 2022, and the pace is picking up as the law becomes more well known. Since it went into effect in June 2021, 170 people altogether have used the law, according to state records.
It’s also triggered a court challenge. A local physician and a Christian doctors association filed a federal lawsuit seeking to declare parts of the law unconstitutional.
The University of New Mexico Hospital, meanwhile, is establishing a medical aid-in-dying program to help providers and patients navigate the law.
Jacqueline O’Neill, a physician and professor leading the program at UNM, said she is already seeing strong interest in the End-of-Life Options Act, even though the hospital hasn’t yet set up a formal website and phone line to handle inquiries.
“This is something that is very, very much wanted by our community,” said O’Neill, who spoke with the Journal on her own behalf, not the hospital’s.
Bergman, for her part, has an unusual perspective on the law’s impact, having watched her two sisters endure pancreatic cancer at the end of their lives.
Her younger sister, Vicki, died in southern California in 2017. She was unable to use the aid-in-dying law then in effect in California, which had a two-week waiting period and other restrictions.
Vicki, 67, was miserable at the end, Bergman said, suffering from nausea and wasting away to just 87 pounds. She awoke each day to disappointment.
“She’d say, ‘Oh, I haven’t died yet. When am I going to die?’” Bergman said.
But it was a much different end for Bergman’s older sister, Linda, an Albuquerque resident who died in 2021, just after the End-of-Life Options Act went into effect.
After watching what Vicki had gone through, Bergman said, her sister Linda, an actress and legal secretary, was clear from the beginning that she wanted some control over her death if she faced a terminal illness.
She picked a chalice she wanted to drink from and chose to end her life surrounded by family.
Linda, 79, drank the thick liquid down on her own.
Within 10 to 15 seconds, she closed her eyes, Bergman said, and “her entire body relaxed.” She stopped breathing about an hour and 20 minutes later.
“There was never a sign of struggle,” Bergman said.
For other families, Bergman said, she recommends people talk ahead of time about how to handle end-of-life questions. They can even record a video making their wishes clear.
“You need to have the conversation,” she said, “and you need to write it down.”
A nonprofit group, End of Life Options New Mexico, offers information on the state’s aid-in-dying law and resources for advance directives.
‘Freedom of conscience’
New Mexico’s medical aid-in-dying law is named after Elizabeth Whitefield, a retired judge who testified before the Legislature about wanting an end-of-life choice that would spare her family the pain of watching her choke to death while battling throat and liver cancer.
For years, it triggered some of the most emotional debates at the Roundhouse.
Terminally ill patients and their families often traveled to the Capitol to offer in-person testimony in favor of the bill.
The state’s Catholic bishops opposed the measure. Archbishop John Wester of Santa Fe called it “the worst in the nation” and said New Mexicans should “protect the life and dignity of each and every human being, especially the most vulnerable.”
Gov. Michelle Lujan Grisham signed the legislation after it reached her desk in 2021, too late for Whitefield, who died in 2018. The Democratic governor said it was “self-evidently a humane policy” to alleviate suffering.
Much of the legislative debate, however, centered on how to ensure medical providers weren’t required to participate over a moral objection.
But a federal lawsuit filed last month alleges the law violates the First Amendment rights of doctors.
The suit takes aim at a provision in the law that says a provider who isn’t willing to carry out a patient’s end-of-life request must refer them to someone else who can. The complaint also challenges a provision stating providers shall inform terminally ill patients of “all reasonable options.”
The plaintiffs are Mark Lacy, a doctor who works with terminally ill patients in New Mexico, and the Christian Medical and Dental Associations.
“The government has no business forcing doctors to participate in procedures that lead to the taking of human life,” said Mark Lippelmann, attorney for the plaintiffs and senior counsel at Alliance Defending Freedom, an advocacy group. “Doctors and medicines are supposed to help and heal, not kill.
“Moreover, doctors shouldn’t be forced to facilitate the death of a patient they’ve sworn to protect and the government should strive to protect freedom of conscience, not threaten it.”
The state hasn’t yet answered the complaint in court.
Supporters of the law said the language was intended to ensure physicians weren’t forced to participate but that patients would be aware of their options.
The law, in fact, says no health care provider who objects as a matter of conscience can be required to participate “under any circumstance.” It also prohibits disciplining a provider for a refusal to participate.
O’Neill, the physician at University of New Mexico Hospital, said an early challenge in carrying out the law so far is a lack of awareness that it’s available, in addition to a shortage of health care providers, especially in rural areas.
There are frequent questions, she said, about who qualifies and how to handle end-of-life discussions with patients.
“There’s a lot of provider education that needs to happen – and definitely patient education,” O’Neill said.
Under the law, a doctor may issue a prescription for life-ending medication only after determining the individual has the mental capacity to make an informed decision and is doing so voluntarily and without coercion.
The law is available only for patients with a terminal illness.
A 48-hour waiting period to get the prescription filled is required – with narrow exceptions – and the patient also must be able to self-administer the medicine.
It’s often a bitter-tasting drink made with a powder, O’Neill said, though the medicine can be administered rectally.
She’s been present for eight or nine ingestions.
“Every single one of them has been a positive experience,” O’Neill said.
More people using law
Records kept by the state Department of Health show 170 people – 88 men, 82 women – have ingested the end-of-life medication in New Mexico since the law went into effect.
A disproportionate share of them have been non-Hispanic white.
Just 7% of the aid-in-dying ingestions, for example, have involved Hispanic individuals, who make up 50% of the state population overall.
The pace of ingestions, in any case, has been climbing. About 11 people a month used the law in 2022, up from six a month in 2021.
Carrizozo resident Laura Robinson – whose 77-year-old mom died last year after being diagnosed with an inoperable cancer – said her mom was relieved when a friend brought up the aid-in-dying law.
“Nobody in the medical field had mentioned it,” Robinson said.
But her mom was eager to use it and underwent a competency test with a doctor to determine that she was of sound mind.
Robinson’s mom, Suzanne Donazetti, an artist, took the medicine mixed with some apple juice.
“We were able to just talk about how much we loved her, and how we were proud of her,” Robinson said. “She wasn’t in pain.”
She died surrounded by family.
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