Telemedicine Adds a Wrinkle to Latest New Mexico Legislative Debate on Aid in Dying

Then-Senate Majority Leader Bill Frist was roundly criticized in 2005 for declaring that Terri Schiavo, a Florida woman who had gone into cardiac arrest at age 26, was “not somebody in persistent vegetative state” after viewing videotapes of her condition. The tragic situation is mostly remembered as a low point for federalism and end of life policy.

But there is another issue stemming from the debate that ought to be considered. Although Frist backed away from calling his review of videos an actual diagnosis, it is interesting to think how the use of technology to make a remote determination of a patient’s condition has changed since Frist made his assessment.

Indeed, over a decade later, a New Mexico bill is proposing the opposite: allowing individuals with a terminal illness to utilize telemedicine consultations to seek aid to end their lives. It is not surprising that New Mexico lawmakers would consider telemedicine as part of their proposal. Given its geography, the state has embraced telemedicine as a means of expanding access, and innovative workforce initiatives such as Project ECHO were birthed there.

While the bill obviously would have been controversial on its own, the inclusion of a telemedicine provision has generated additional attention. Although telemedicine has been embraced generally by stakeholders across the healthcare system, it is not the first time that telemedicine policy has been challenged by the pro-life community.

Abortion opponents criticized the use of telemedicine for medication abortions, where a physician remotely monitors a patient taking the abortifacient in the physical presence of a health professional. This situation differs little from having the physician physically present in the room and allows for greater access in rural, remote areas. But abortion opponents have criticized the process as unsafe and succeeded in passing legislation at the state level to prohibit such “tele-abortions.” At one point, Congress attempted to prohibit USDA rural development funds from being used in any way connected to abortion.

In the New Mexico instance, opponents have claimed that the bill is so full of loopholes “that a hearse can drive through it.” Many of these arguments, however, seem to be based on misunderstandings on how telemedicine works (as well as misreading of the bill text).

For instance, opponents argue that due to the telemedicine provision, the bill “could result in making assisted suicide available for people – regardless of the state they live in” and thus make New Mexico into “a euthanasia tourism destination for everyone.” However, the bill includes a residency requirement in its definition of an eligible adult: “a resident of the state who is 18 years of age of older.” If the concern is that New Mexico would be exporting its policies outside its boundaries and thus “making assisted suicide available for people – regardless of the state they live in,” telemedicine does not allow health professionals to practice in another state—they still must meet a state’s licensing requirements and limits on the scope of their ability to practice medicine.

(Note that a critic later retracted his claim that the bill had no residency requirement, but several other critics had already pushed out this argument.)

Another criticism states that the telemedicine provision means “that if you contact the euthanasia doctor by phone and discuss it with them, they can sign you off and prescribe [medication] to you.” Such a criticism seems to conflict with the bill text. Only the secondary “consulting health care provider” is explicitly allowed to make the follow-up assessment, either through an in-person appointment or via telemedicine, and it is implied that the bill would require the prescribing provider, who makes the initial assessment, to do so through an in-person examination since there is no mention here of telemedicine.

But even further, New Mexico defines telemedicine as “the use of interactive simultaneous audio and video or store-and-forward technology,” which would require something more than a simple phone call.

In another critique, the author complains (emphasis in the original): “The consulting physician (second opinion) never has to actually meet the patient! The witnesses need only affirm that the consult examined the patient by ‘telemedicine.’” Well, that is how telemedicine is supposed to work.

More and more states are eliminating an in-person requirement before a physician establishes a relationship with a patient, therefore allowing virtual visits to occur entirely online. One could argue that in this particular circumstance, perhaps an in-person visit is warranted, but then there ought to be some thought into why there is a need for heightened scrutiny at the end of life, when the consult is likely to be conducted in the same fashion whether in-person or online.

In a parallel to the telemedicine abortion ban, the Iowa Supreme Court found that there was no rationale to single out medication abortions as the only service that could not be delivered via telemedicine. Similarly, it might be questionable if the legislature banned the secondary consult required by the New Mexico bill from being conducted via telemedicine, but this point is moot since the bill’s sponsor allowed for it. Relatedly, since the provision describing the primary visit with the “prescribing health care provider” does not mention telemedicine, that omission likely means that the primary visit must be in person; otherwise, the bill would contain the same explicit language authorizing telemedicine.

While telemedicine advocates may see the New Mexico bill as a one-off issue, it should prompt some thinking about the limits of telemedicine and what practitioners are comfortable performing—or fighting for— via this tool.

After all, it can be these thorny issues that subvert larger policy goals. And if Frist had made his assessment of Terri Schiavo under today’s sentiments about telemedicine, would the criticism have been the same?