Thursday, December 31, 2009

Robert Baxter.

Today was a success for a man no longer alive to see it. It is an odd decision by the Montana Supreme Court, not one that states aid in dying is guaranteed by the state constitution, but one that protects doctors from prosecution for helping those in pain end their suffering. I for one am thankful for Robert Baxter's courage.

From the NYT:

The Montana Supreme Court ruled on Thursday that state law protects doctors in Montana from prosecution for helping terminally ill patients die. But the court, ruling with a narrow majority, sidestepped the larger landmark question of whether physician-assisted suicide is a right guaranteed under the state’s Constitution.

Larry Mayer/Billings Gazette

Robert Baxter

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The 4-to-3 decision, in a case closely watched around the nation by physicians and advocates for the disabled and terminally ill, was a victory for the so-called death-with-dignity movement. But it fell short of the sweeping declaration advocates had hoped for.

And by avoiding the question of constitutional rights entirely, the court kept the debate in the Montana Legislature, where passions over the issue run high and where tinkering with existing laws is much easier than changing the Constitution.

The state attorney general’s office, which had argued to the court that the Legislature and the democratic process — not seven Supreme Court justices — should decide the weighty philosophical questions raised by the case, Baxter v. Montana, said in a statement that the questions were still alive and still to be answered.

“The Montana Supreme Court recognized that physician-assisted suicide is a policy question for the people of Montana and their Legislature,” the Montana state solicitor, Anthony Johnstone, said in the statement. “As we have argued, that is where the resolution of this important issue belongs.”

A spokeswoman for Compassion and Choices, a group that supports physician-assisted death for terminally ill people and which participated in the case as a plaintiff and co-council to the lead plaintiff, Robert Baxter, conceded that a broader ruling would have been better for their interests.

Mr. Baxter, a retired truck driver from Billings, died last year of complications related to lymphocytic leukemia at age 76.

“We would have welcomed a broad and robust constitutional ruling,” said Kathryn L. Tucker, the legal affairs director for Compassion and Choices. But Ms. Tucker said there was also no doubt that the court had expanded the choices available to the dying in Montana, and extended protection to their doctors, too.

“The court recognized that this is a right patients have,” she said.

The court, which heard oral arguments in the Baxter case in September, was deeply divided, with four separate written opinions among the seven justices — a four-justice majority; a two-justice dissent, and two concurring opinions.

One justice, James C. Nelson, concurred in part, saying he would have upheld the lower court ruling and found a constitutional right to die with dignity.

Two states, Washington and Oregon, allow physicians to help terminally ill people hasten their deaths, but in those states the laws were approved by voters in statewide referendums, and neither state’s highest court has examined the issue of a constitutional right to die. Montana would have been the first.

“This right to physician aid in dying quintessentially involves the inviolable right to human dignity — our most fragile right,” Justice Nelson wrote in a passionately worded opinion.

The majority’s language, by contrast, was muted and lawyerly. A measure passed by the Legislature in 1985, which addressed the withdrawal of treatment for terminally ill patients, created “public policy,” the majority said, that in effect shielded a physician from prosecution for helping hasten the death of a consenting, rational, terminal patient.

The dissenting justices said the majority had misread the intent and meaning of the 1985 law and given it a breadth it was never intended to have.

“The statute provides no support for physicians shifting from idle onlookers of natural death to active participants in their patients’ suicides,” they wrote.

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