Physician Assisted Suicide (PAS)

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Activity in Montana

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Person with leukemia seeks aid in dying:

Robert Baxter, 74, was a former Marine who served in the Korean War, and retired as a long-haul truck driver in 2003. He was dying a slow death from an incurable form of leukemia when he filed a lawsuit in Montana's 1st District Court. He sought a ruling that would make it legal for himself and other competent terminally ill persons to obtain a fatal dose of drugs from their physician so that he could commit suicide if continuing to live became intolerable. His lawsuit justified PAS under the state constitution's guarantees of privacy, dignity and equal protection.

His affidavit states:

"I am terminally ill with lymphocytic leukemia with diffuse lymphadenopathy, a form of cancer, which is a progressive disease with no known cure. It is treated with multiple rounds of chemotherapy, which typically become less and less effective as time passes. ... I have lived a good and a long life, and have no wish to leave this world prematurely. As death approaches from my disease, however, if my suffering becomes unbearable I want the legal option of being able to die in a peaceful and dignified manner by consuming medication prescribed by my doctor for that purpose." ₁

He said that he is suffering from anemia, chronic fatigue and weakness, nausea and "significant ongoing digestive problems." His symptoms were expected to intensify as the disease progressed and the effectiveness of chemotherapy lessened.

Plaintiff wins lawsuit and dies:

In 2008-DEC-05, First District Court judge Dorothy McCarter ruled that terminally ill, mentally competent persons do have a constitutional right to obtain assistance in dying from physicians in the state. She based her ruling on the clauses in the Montana constitution that protect "individual privacy and human dignity" Unfortunately, Baxter died on the same day.

Instantly this decision made Montana the state with the most liberal provision for physician assisted suicide. Her ruling only placed three restrictions on the practice:

	The patient must be mentally competent.
	The patient must be terminally ill.
	The physician's actions must be limited to merely prescribing a fatal dose of oral medication that the patient would consume.

Thus, any terminally ill patient who wishes to die could obtain PAS, even if their desire was driven by clinical depression. None of the extensive controls seen in the Oregon or Washington laws restrict PAS in Montana.

Legislature attempts to pass PAS law, and fails:

There was general agreement in the legislature that the court ruling left the state in an untenable position:

	Those opposed to PAS wanted the practice re-criminalized;
	Some wanted a constitutional amendment to absolutely prohibit PAS.
	Those in favor of PAS wanted better controls to be placed on the practice so that clinically depressed persons would not be allowed access to PAS.

Jeff Laszloffy is president of the Montana Family Foundation, which is affiliated with the fundamentalist Christian group Focus on the Family. He expressed concern that the court ruling was "a wide-open decision" that could be abused without legislative action. However his and similar conservative groups decided to not promote PAS legislation because it would end up legalizing the practice. They are hoping that the state Supreme Court will overturn the lower court ruling on appeal.

Representative Dick Barrett (D-Missoula) introduced a bill to restrict PAS. It would also make the procedure legal even if a higher court determined that there is no right for access to PAS implied in the state Constitution. The bill did not proceed.

Supreme Court of Montana to hear arguments:

CNN reported that:

"The state appealed, saying in its brief, ',,, the state does not deprive Montanans of humane, medically appropriate end-of-life care insofar as it involves the lawful practice of medicine, including palliative care, hospice and the withdrawal of life support. Plaintiffs seek something else: a right of physicians to commit homicide against terminally ill patients with impunity and no more accountability than the physician's own conscience."

This appears to be in error on a number of counts:

	Physicians would not commit homicide; they would merely help a patient who had decided to commit suicide by giving them a prescription.
	Physicians would be prohibited from issuing a prescription if the patient is not mentally competent or is not terminally ill.

The state notes in its brief that the Florida and Alaska have privacy rights guaranteed in their Constitution similar to Montana. However, "... both of those states' Supreme Courts have refused to read a right to assisted suicide into those broad clauses."

Four religiously conservative groups, the Family Research Center, the Alliance Defense Fund, the American Association of Pro-life Obstetricians and Gynecologists, the Catholic Medical Association, joined with 11 doctors and one nurse to file an amici curiae brief. They claim that:

	The Netherlands' PAS laws severely restrict assisted suicide in theory but are often abused.
	Allowing PAS would undermine choice and compassion and would lead to euthanasia.
	PAS threatens those who are easily influenced and vulnerable.
	PAS diminishes compassion for patients.
	Palliative care is the real, compassionate alternative for the terminally ill.  3

 A group of disability-rights groups. including "Not Dead Yet" argued in an amicus brief that assisted suicide leaves vulnerable people open to abuses and involuntary death. It said, in part:

"People with disabilities in Montana are seriously threatened by physician-assisted suicide. Amici ask the Court to believe them when they state that disability-based discrimination in this culture is deep-seated, pervasive and overwhelming. People with disabilities request this Court to recognize that cloaked in the false rhetoric of 'death with dignity,' physician assisted suicide threatens the civil rights of a profoundly oppressed and marginalized people." ₄

The Montana Catholic Conference wrote in their amicus brief:

"Montana's longstanding tradition of protecting its citizens against intentional killing should not be suspended for any group of citizens. It will facilitate the destruction of people who are sick, instead of reasonably and compassionately addressing their health problems. ... It will undermine attempts to treat the true underlying causes of suicide requests, and result in deaths that are not truly voluntary or consensual." ₄

Attorneys for the late Robert Baxter said: "If the Montana Constitution's guarantees of privacy and dignity protect any decision, surely they protect this one."

On 2009-SEP-02, the Montana Supreme Court heard oral arguments in the case. In the meantime, the lower court ruling was not stayed, so adults in the state could be given fatal prescriptions by their doctors.

Montana Supreme Court delivers verdict:

On 2009-DEC-31, the Supreme Court handed down its ruling in the case of Baxter v. Montana. They ruled that neither state law or public policy prevents physicians from prescribing lethal drugs to terminally-ill patients who want to end their suffering and their lives. _5,6 The court wrote:

?We find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. The ?against public policy? exception to consent has been interpreted by this court as applicable to violent breaches of the public peace. Physician aid in dying does not satisfy that definition. We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient ? not the physician ? commits the final death-causing act by self-administering a lethal dose of medicine.?

The court also ruled that circumstances may exist to give physicians a defense to prosecution on a charge of homicide if they prescribe lethal medication. ₅

Attorney Mark Connell, who represented the plaintiffs, described the ruling as:

?a victory for individual rights over government control. ... The Montana Supreme Court has now recognized that, where intensely personal and private choices regarding end-of-life care are involved, Montana law entrusts those decisions to the individuals whose lives are at stake, not the government."

Pro-life groups took a different view.

Jeff Laszloffy of the Montana Family Foundation, who oppose the right to PAS, said that the ruling was:

?Definitely not what we wanted, but not as bad as it could have been. ... What the court did, in essence, was to place the issue back into the hands of the legislature, where it should be. They said there?s nothing currently in statute that prohibits the practice. It?s now up to us to go into the next legislative session fully armed and ready to pass statutory language that says, once and for all, that physician assisted suicide is illegal in Montana.?

The decision by the court is expected to be challenged by the state legislature and/or by a voter initiative in 2010.

References:

1. "Montana's top court to hear right-to-die arguments," CNN, 2009-SEP-01, at: http://www.cnn.com/
2. Daniel Person, "No physician-assisted suicide bills heard in Legislature," Bozeman Daily Chronicle, 2009-FEB-22, at: http://www.bozemandailychronicle.com/
3. "Case No. DA 09-0051, Alliance Defense Fund, http://www.alliancedefensefund.org/  This is a PDF file.
4. Liz Townsend, "Physician-Assisted Suicide Case Heard by Montana Supreme Court," National Right to Life, 2009-SEP-08, at: http://www.nrlc.org/
5. Alex Schadenberg, "Baxter v. Montana: Assisted-Suicide Lobby Group does not get What it Wanted," LifeSiteNews, 2010-JAN-02, at: http://www.lifesitenews.com/
6. Brad Knickerbocker, "Montana becomes third state to legalize physician-assisted suicide," Christian Science Monitor, 2010-JAN-02, at: http://www.csmonitor.com/

Copyright © 2009 & 2010 by Ontario Consultants on Religious Tolerance
First posted: 2009-MAR-21
Last updated 2010-JAN-04
Author: Bruce A Robinson

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