Montana and Assisted Suicide.

The Missoulian gives a run-down of the bills before the legislature in 2011 including one sponsored by Rep. Dick Barrett, D-Missoula that will reinforce the Supreme Court decision last year that ruled the state constitution did not prevent assisted suicide.

"My sense is that terminally ill Montanans really do want to have this choice available to them, not that large numbers of people take advantage of it," Barrett said when requesting the bill draft earlier this year.

"We'll be advocating for Montanans to continue to have access in aid in dying and to make those decisions with their doctor without government interference," Zupanic said.

***

Jeff Laszloffy, president of the Montana Family Foundation, said his group stands against physician-assisted suicide.

"I think one of the big ones we're really going to be fighting is the legalization of assisted suicide in Montana," he said.

Meanwhile, Sen. Greg Hinkle, R-Thompson Falls, is requesting a bill to ban physician-assisted suicide in Montana. He has referred to it as "elder abuse."

Commonweal Magazine on Baxter v. Montana.

The latest issue of Commonweal features an article by Cathleen Kaveny on what she calls "the other pro-life issue," assisted suicide. Citing the oversight of the New Year's Eve decision on Baxter v. Montana - which states that the state constitution does not prevent assisted suicide - as a result not only of the holiday and the health care debate but an assumption that the decision is not as bad as "pro-life" advocates had feared it would be. She uses the rest of the article - and the usual "judicial activism" complaints - to explain why it is:

But like most states, Montana treats the consent of the victim as a defense to some crimes—unless doing so violates public policy as reflected in state law. Thus the question the Montana Supreme Court set itself in Baxter was whether the physician’s assistance in a patient’s suicide violated the state’s public policy. It answered no, for two reasons, both of which are highly flawed.

First, the majority recognized that in Montana (as elsewhere) public policy does not allow the victim to give legally valid consent to crimes destructive of the person, such as assault. The majority attempted to distinguish this situation from PAS by saying that the public-policy exception applied centrally to “violent, public altercations [that] breach public peace and endanger others in the vicin- ity.” In contrast, it argued, death by PAS is “peaceful and private.”

This line of reasoning fundamentally misconstrues what counts as “private.” Our legal tradition has always recognized that when one member of the commu- nity seriously injures or takes the life of another, it is always an issue of public concern—no matter where it might take place or how serene the action itself might appear. The opinion’s requirement that the consensual attack be “private” and “peaceful” doesn’t hold up under examination. An assault consisting of a consensual strangling in a hotel room won’t spark a riot, nor will the consen- sual smothering of one sleeping spouse by the other. But these are still matters of public concern.

Second, the majority opinion points to Montana law as requiring doctors to withdraw life-sustaining treatment at the request of the patient or surrogate decision-maker. It asks how PAS can be against public policy when withdrawal of treatment isn’t.

There is a significant distinction be- tween a doctor’s respecting the wishes of a patient or surrogate to withhold or withdraw treatment, on the one hand, and assisted suicide and euthanasia on the other, as the U.S. Supreme Court has recognized. Doctors cannot force compe- tent patients to receive treatment they don’t want, no matter what the reason. But that is a far cry from saying they can help patients kill themselves with legal impunity.

Kaveny's conclusion? That "pro-lifers" should be worried. Because the decision now puts the onus to make assisted suicide illegal on the legislature, she fears that a public unwilling to vote for legalized AS might also be unwilling to make it a crime, as any bill would require. She claims that citizens may want to keep the possibility around "just in case." And she tells us that the decision is portable because the same construct of laws in other state constitutions like Montana's could allow aid in dying activists to make the same case elsewhere.

She's right. It wasn't as bad a decision as it could have been. Yet, the "pro-life" machine is incredibly powerful. The types of grassroots work, aided and abetted by powerful Legal Right and Medical Right organizations, has proven effective with initiatives like Proposition 8, for instance.

But I also find the bit in Kaveny's article about privacy to be interesting. Of course Roe v. Wade was decided on the grounds of privacy: that a woman had a right in consultation with her doctor to make the decision about her reproductive future in private. Kaveny then pulls out all the typical "pro-life" arguments against assisted suicide like coercion and financial concerns to scare us into thinking that assisted suicide is not a right, appealing to the state as keeper of laws surrounding murder and other life-ending crimes.

She makes no note of the fact that those who request aid in dying must self-administer the lethal drugs, instead it seems, arguing that doctors who abide by their patients wishes by prescribing the drugs should be liable for prosecution - and that giving such a prescription is very different from those doctors consenting with a patient's wish to not receive artificial treatments or to be removed from such treatments.

There is a firestorm coming to Montana as "pro-life" groups work to pressure state legislators to introduce bills that will render assisted suicide illegal. Abortion may be the primary "pro-life" issue but the battle to prevent legalization of aid in dying will soon focus resources and emotions on the other issue on the platform.

Kathryn Tucker on Baxter v. Montana Decision

An interview with Kathryn Tucker of Compassion & Choices on the Montana decision on Baxter v. Montana. From Legal Broadcast Network.

Religious Left Supports Baxter v. Montana Decision.

Mariya Starchevsky writes about the recent Baxter decision and with (almost too much) surprise notes the religious supporters of the decision to allow aid in dying in Montana.

It's easy to forget that we live in a country of diverse religious practice because typically the loudest and most organized of the crowd are Protestant or Catholic Right. They're the ones with influence, resources, and the power to shape our health care delivery. Their objective is to turn the country and its laws over to God, to delivery social services and health care according to doctrine - and they've been surprisingly successful the past 40 years. But as Starchevsky points out, there are other religious voices out there:

The dispassionate tone of the opinion sweeps under the rug the fiery arguments of amicus curiae.

On the “Pro-Life” side, the International Task Force on Euthanasia argued that allowing physician-assisted suicide would lead to abuse, and intentional killing of the elderly and the incompetent by self-interested relatives and insurance companies. Margaret Dore, Esq., a lawyer from Washington wrote in as well, echoing the Task Force’s sentiment, and claiming that the trial court’s findings were “clearly erroneous because Oregon’s law [on euthanasia] allows involuntary killing.” Page 5.

They are both fantastic reads. I highly recommend them.

But most interesting was the amicus brief filed by religious groups and representatives - on Mr. Baxter’s behalf!

These were not out-of-state weirdos, or special interest fanatics, but persons of religious authority, and most from Bob Baxter’s home town of Billings, Montana. Making their plead for a right to die from a religious point of view were Rev. Canon Gary Waddingham (Episcopal Priest) Rev. Steve Oreskovich (Episcopal Priest), Rev. Meg Hatch (M. Div, UCC) Chuck Heath (M. Div. LCPC, Chaplain), Reverend John C. Board (Episcopal Deacon) Rev. Jean Collins, (Episcopal Priest), Rev. John R. Payne, Journey BE (Disciples of Christ) and Dr. L.A. Kemmerer (Professor). These authorities then list approximately 70 other religious figures from the United Church of Christ, the Church of England, the Unitarian Universalists Association of Congregations, the Methodist Church, etc., all who support euthanasia when concerning competent, terminally ill adults. Page 6, footnote 3.

I know what you’re thinking: no Catholics? Well, in the word of Moishe, nobody’s perfect.

Christians believe life is a gift from God. Further, Christians believe that death is not the ultimate enemy nor is the human soul ended by death. The Old and New Testaments teach free will, love, and compassion. God granted humans the ability to choose between good and evil. Page 2.

These religious amici stress that end-of-life decisions are deeply personal.

“Those who do not share in the religious beliefs and doctrines of groups opposed to aid in dying see this as an unwanted intrusion into what should be a private decision making process between patient and physician." - Deric Weiss, M.D.,Billings, Montana.

By the way, I've said some bad things about the Examiner lately. I still stand by them. But nice to see this piece, however irreverent and flippant the tone!

Precise Reporting on Baxter v. Montana.

Chattahbox has a little bit about the Baxter v. Montana case that is swiped from NPR and which found me via the conservative Alliance Defense Fund.

This may seem nitpicky but it's not: Chattahbox, in their efforts to paraphrase the facts of the case, writes:

Ruling on Baxter v. Montana, a case filed by a Billings truck driver Robert Baxter (who has since died), but wanted his doctors to administer a lethal dose of medication after being diagnosed with leukemia, the court said it found “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy:”

What's my problem with the report? Robert Baxter didn't approach the state after his diagnosis, he decided he would like the option of aid in dying after more than 10 years of trying to survive leukemia. NPR got it right. Chattah box could have too. Baxter exhausted all the existing treatments and suffered their horrible side effects. A decade of ups and downs and suffering. He had come to the end of an illness that without medical technology may have killed him years before.

But the same medical technology that keeps us alive has changed the possibility of what we call a natural death. Writing about contentious issue of aid in dying requires specificity. Baxter didn't want to kill himself. He didn't even want to die. He didn't get a bad diagnosis and run to the state for lethal meds. But after an extended fight, he knew he would die.

Or as Baxter writes in his affidavit for the case:

I am terminally ill with lymphocytic leukemia with diffuse lymphadenopathy, a form of cancer, which is a progressive disease with no known cure. It results in the bone marrow making an excessive number of lymphocytes, a type of white blood cell, which crowd out normal blood cells, suppress the immune system, and render the body unable to fight off infections as effectively as normal. It is treated with multiple rounds of chemotherapy, which typically become less and less effective as time passes.

As a result of the leukemia and the treatment I have received to combat it, I have suffered varying symptoms including anemia, chronic fatigue and weakness, nausea, night sweats, intermittent and persistent infections, massively swollen glands, easy bruising, significant ongoing digestive problems, and generalized pain and discomfort. These symptoms, as well as others, are expected to increase in frequency and intensity as the chemotherapy loses its effectiveness and the disease progresses.

Given the nature of my illness, I have no reasonable prospect of a cure or recovery. As the cancer takes its toll, I face the progressive erosion of bodily function and integrity, increasing pain and suffering, and the loss of my personal dignity.

I have lived a good and 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. Because it will be my suffering, my life, and my death that will be involved, I seek the right and responsibility to make that critical choice for myself if circumstances lead me to do so.

Christian Science Monitor on Baxter v. Montana

Link. One of the nicer things about this article is the observation that this legalization of aid in dying is part of a northwest trend:

In a move that is both ethically profound and (so far, at least) politically rare, Montana has become the third state to legalize physician-assisted suicide.

A divided state supreme court ruled Thursday that neither state law nor public policy prevented doctors from prescribing lethal drugs to terminally-ill patients who want to end their lives.

In essence, the court ruled, suicide is not a crime. The majority justices 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.”

Northwest pattern

The ruling – which is likely to be challenged in the legislature and perhaps in a voter referendum – follows a pattern in the Pacific Northwest.

In November 2008, voters in Washington State approved a ballot initiative allowing terminally ill, legally competent adults to obtain lethal prescriptions without exposing themselves or their doctors to criminal prosecution. The Washington measure was modeled on Oregon’s Death with Dignity Act enacted in 1997 following voter approval and upheld by the US Supreme Court in 2006.

The Oregon law strictly prohibits “lethal injection, mercy killing, or active euthanasia.” But it allows mentally competent adults who declare their intentions in writing, and have been diagnosed as terminally ill, to take a doctor-prescribed lethal drug themselves, orally, after a waiting period.

Since the law went into effect in 1998, about 40 people a year have taken their own life this way. Last year, 60 individuals did so (out of 88 who received the prescriptions).

No violations of Oregon law

Over the years, there have been no reported violations under the law – no evidence that individuals have been pressured by doctors or family members. And Oregon has become noted for the quality of end-of-life care, especially the use of hospices.

Missoula attorney Mark Connell, who represented plaintiff physicians and patients, described the decision 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,” he said in a statement released byCompassion & Choices, the main group lobbying in favor of physician-assisted suicide.

Pro-life groups took a different view.

Jeff Laszloffy of the Montana Family Foundation told LifeNews.com, “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,” Mr. Laszloffy said. “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.”

A Half Decision Lays the Plan for Future Legislation.

The Montana Supreme Court could have answered the question once and for all but chose to side-step it. Robert Baxter, four Catholic Doctors and the nation's largest aid in dying advocacy group, Compassion and Choices, asked the court to determine that aid in dying was constitutional. Instead the court said it determined that nothing in the laws prohibited it.

The state argued that the issue should be taken up by the legislature, not the courts, and conservatives have been yelling about "activist judges" ever since McCarter made the district ruling last December. Yet, if you view patients' rights - the rights to medical services by those in need - as a human rights issue, civil rights showed that rarely do legislatures work hard enough to protect minorities.

From Conservative lifenews, the new plans being laid for a legislative outlaw of aid in dying in Montana:

Helena, MT (LifeNews.com) -- Reaction is coming in form pro-life advocates responding to today's decision by the Montana Supreme Court that determined there is no right to assisted suicide but saying it is allowed under state law. The pro-life activists say the decision is definitely bad but could have been worse.

The Montana Supreme Court, today, released its long-awaited decision in the Baxter case on assisted suicide.

In a 5-2 decision, the Supreme Court vacated the lower court's decision that found a constitutionally-guaranteed right to physician assisted suicide, and, instead, found the practice legal on statutory grounds.

In his dissenting opinion, Justice Jim Rice said that the majority badly misinterpreted our public policy. He said that assisting suicide has been explicitly and expressly prohibited by Montana law for the past 114 years.

Jeff Laszloffy of the Montana Family Foundation told LifeNews.com, "Definitely not what we wanted, but not as bad as it could have been."

"While we would have preferred an outright reversal of the lower court's decision, this ruling is a partial victory," he explained. "The fact that the Court did not find a constitutional right to physician assisted suicide is good for those of us opposed to this abhorrent practice."

The pro-family leader told LifeNews.com that the legislature should now get involved.

"What the court did, in essence, was to place the issue back into the hands of the legislature, where it should be," he said. "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."

NPR on Baxter v. Montana.

From NPRs Frank James:

The Montana Supreme Court upheld a lower court's decision that nothing in state law bars physician-assisted suicide so long as the decision is made by a mentally competent, terminally ill adult who ultimately decides whether or not to end his life.

The Montana attorney general had appealed a lower court ruling, arguing that physician-assisted suicide was against "public policy."

But the state's supreme court said:

... 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 case was a posthumous victory for Robert Baxter, a retired truck driver suffering from lymphocytic leukemia who died late last year.

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?

Baxter v Montana Primer.

Oral arguments begin tomorrow at 9:30 in the Montana Supreme Court appeal case Baxter v Montana that will determine the consitutionality of death with dignity, the prescription by doctors of lethal drugs to the chronically ill, in Montana.

A representative of Compassion & Choices sent me a number of helpful links, below. And you can find the site for live broadcast of the arguments here.

http://compassionandchoices.org/blog/?p=565

Related press clips:http://www.nytimes.com/2009/09/01/us/01montana.html?_r=2&hp

http://www.greatfallstribune.com/article/20090830/NEWS01/90830001/1002/Court+to+hear+arguments+on+assisted+suicide

http://billingsgazette.com/news/state-and-regional/montana/article_6855a26e-9511-11de-ac11-001cc4c03286.html

http://www.montanasnewsstation.com/Global/story.asp?S=11018475http://www.kxmc.com/News/428832.asp