Baxter v. Montana seeks right to assisted suicide
Case will go before Montana Supreme Court
Depending on the ultimate decision of the Montana Supreme Court in the case of Baxter v. Montana, the complex issue of assisted suicide ultimately could mean that Montana becomes the third state in the United States to allow for physician-assisted suicide, after Oregon and more recently, Washington state.
The Montana First Judicial District Court found in a decision and order dated Dec. 5, 2008, in favor of the plaintiffs in the case, including Robert Baxter, a 75-year-old retired truck driver with a terminal form of cancer who wished to be able to end his life.
The plaintiffs also included four physicians who treat terminally ill patients, and the national non-profit, Compassion & Choices, to allow for assisted suicide.
Compassion and Choices describes itself as a public interest organization dedicated to "expanding and protecting the rights of the terminally ill."
District Court Judge Dorothy McCarter noted in the December decision that, to date, "no court of final jurisdiction has determined that an individual has a right, under either federal or state constitutional protections, to 'physician-assisted suicide' under even the limited circumstances here — i.e., a competent person with a terminal medical condition expected to end in death within six months who wishes to obtain a prescription for a lethal dose of drugs to be self-administered, if and when the individual elects to hasten death rather than await an inevitable end to life."
After this decision, the state of Montana requested a stay of the court's decision, but the stay was denied by the court. The state attorney general's office has made no comment as to whether physicians can now legally assist in hastening a patient's death by prescribing drugs.
But Compassion & Choices Director of Legal Affairs, Kathryn Tucker, JD, believes "that choice is protected by the Montana Constitution, which guarantees Montanans privacy and dignity."
According to Tucker, the Montana Constitution has three separate clauses that address the three different matters of privacy, dignity, and equal protection.
"We argue that all three of those clauses provided protection for this choice," Tucker tells Medical Ethics Advisor.
However, Tucker notes that Judge McCarter did not use the equal protection clause for "finding a constitutional right" to assisted suicide, "which isn't to say that the Montana Supreme Court will not revisit that and find that the equal protection clause does provide this choice. But what [Judge McCarter] . . . went on to say was that 'Clearly, the privacy and dignity [clauses] do protect this choice.'"
Tucker points out that the judge uses the word "fundamental," as in a "fundamental right, which in lawyer speak, a fundamental right is a right of the greatest stature and due the greatest amount of protection."
Opponents differ on judge's decision
Americans United for Life (AUL), which has filed a friend of the court brief before the Montana Supreme Court on behalf of what it describes as a bipartisan group of 28 Montana senators and representatives, argues that there is no right to assisted suicide under the Montana Constitution.
In a late April news release, Dr. Charmaine Yoest, president and CEO of AUL, stated, "It is appalling that the district court has attempted to unilaterally manufacture a state constitutional right to assisted suicide — a right that has no basis in the history of our nation. On the contrary, Montana has compelling interests in protecting all human life and in preventing the abuses inherent in assisted suicide."
Mailee Smith, AUL staff counsel, tells Medical Ethics Advisor that the district court in Montana chose to "ignore substantial evidence that physician-assisted suicide cannot be contained, and in fact, the court opened up the state of Montana to active euthanasia."
Smith says that in the brief filed with the Montana Supreme Court that the district court "overstepped its bounds in legislating and creating a right under the Montana constitution. But it failed to investigate the social, ethical, legal, and moral ramifications of assisted suicide."
Smith also argues that such an "investigation" appropriately would be conducted by the state legislature — rather than the court.
The assisted-suicide opponents make a second argument in the friend of the court brief in this case, suggesting that the district court "was in error by failing to give proper weight to the unanimous court decisions demonstrating that there is no right to assisted suicide."
Courts in two other states, Alaska and Florida, which have constitutions Smith described as similar to Montana's, have determined that assisted suicide cannot be contained, she says.
By "contained," Smith says the courts meant that "it's just impossible to adequately protect the disabled and terminally ill and other populations in the state that could be considered weak and vulnerable."
Smith maintains that currently in Montana, there is "an even more terrifying situation, because what the judge has done is opened up the state to assisted suicide without implementing any kind of safeguard or restrictions on it."
"So, what the court did was say, 'I'm going to step into the shoes of the legislature and create this right, but I'm not going to go so far as providing any safeguards.'"
Can a Montanan request lethal drugs now?
As to whether, with the judge's stay, a competent, terminally ill patient in Montana can request lethal drugs to assist in bringing about death, Tucker explains that this could be viewed differently by different parties.
"I think there's room for lawyers to argue different ways about this issue, but I would say, with her ruling, and particularly in light of the denial of the stay, the law in the state of Montana with regard to this question of whether dying patients have a right to aid in dying — the law says that this is a fundamental, constitutional right," she says.
Tucker suggests that any physician who acts within the boundaries — the "three important boundaries" recognized by the judge — "would be protected from any sort of a criminal prosecution."
Smith agrees that she would not expect there to be any prosecution of a physician who participated in assisted suicide at this point, "because the status of physician-assisted suicide is up in the air at this point, until the [Montana] Supreme Court decides."
Sources
- Mailee Smith, Legal Counsel, Americans United for Life, Chicago. E-mail: [email protected].
- Kathryn Tucker, Director of Legal Affairs, Compassion & Choices. E-mail: [email protected].
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