Wednesday, September 16, 2009

Homicide, God and the State of Montana.

In an editorial to the Helena Independent Record, Annie Bukacek, a physician and the president of Montana ProLife Coalition, writes today that the Baxter v Montana case, upheld by Helena District Court Judge Dorothy McCarter asserting the constitutionality of assisted suicide in Montana and currently on appeal before the Montana Supreme Court, is a case of judicial activism.

The state has argued that under Montana's homicide law, assisted suicide, also known as death with dignity (made legal by legislation in Oregon and Washington) or aid in dying, is illegal. It is the same, they claim, as a man buying a hand gun and telling the salesman that he wants it to kill his wife. The salesman is therefore party to the eventual murder.

The state has also claimed that while privacy of citizens is tantamount, the state's interest in life overrides personal privacy when it comes to a good death.

As Baxter, et al, including Compassion & Choices, the nation's largest aid in dying advocacy group and the former Hemlock Society, argued before the court in orals on September 2, the state of course has an interest in protecting life but, as that life comes to an end, lawyer Mark Connell asked "what could possibly be the state's interest in prolonging that death and protecting that very short life of misery in contravention of the patient's own desires."

Baxter plaintiffs chose to base their argument on dignity of life as guaranteed under Section 4 of the Montana constitution (adopted in 1972):

Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

Bukacek cites several reasons why the state does indeed have interest in even the last days, weeks or months of a dying person's life. "Autonomy and freedom do not include the right to do harm to other humans, including to ourselves," she writes, though Montana does not have a law against suicide.

She expresses concern for violations to the Hippocratic Oath and the Montana Medical Association's policies, though continuous deep sedation (CDS) is a common medical practice which includes sedating a dying patient to the point of death to relieve suffering. The "double effect" protects doctors from prosecution under the homicide law for this practice because relief of pain and not death is the objective.

Connell argued before the Supreme Court that there is no "bright line" between this common practice and aid in dying, which involves a physician prescribing lethal drugs to be self administered by a terminal, mentally competent patient.

Bukacek gets to her beef at the end of the third paragraph: "Laws against suicide are based on our nation's founding principle that life comes from God, as the Declaration of independence asserts, not from government and not from us."

(Incidentally, Section 5 of the constitution guarantees "Freedom of religion. The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.")

Bukacek's argument, in other words, hinges on "the principle that life comes from God." Or rather, perhaps that suffering comes from God? "We have the means to control pain and anxiety from terminal illness" she offers as a further disqualification of the plaintiff's arguments. Yet, while we may have the means to relieve most patients of suffering at the end of life, palliative medicine and hospice care have been shown to alleviate pain in 9 out of 10 patients. Not bad but not complete. Further, a death via CDS is hardly appealing to a patient who has suffered for months or even years, has made peace with their family, their medical caretakers, their god, and their death.

Bukacek would argue for letting God cut the thread that binds us to this earth. He gives us only the suffering that we can handle, she might contend. Yet, what if one's god is not a god of suffering? Or no god at all? Who cuts the thread then? The state? Your neighbor's god? Your doctor? Or you, who knows the extent of your suffering and is protected by your constitution against the indignity of pain and the authority of others?

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