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High court wades into life, death arguments

High court wades into life, death arguments

State appealing district court judge’s ruling favoring assisted suicide

 Robert Baxter
Robert Baxter,

HELENA - Robert Baxter, a 76-year-old former truck driver from Billings, spent his last months fighting for the right to hasten his own death.

Baxter was the Montana face and only named terminally ill patient in a legal case that sought to legalize physician-assisted suicide; he wanted doctors to prescribe him medication that would bring about his death and end his struggle with chronic leukemia.

Baxter died Dec. 5, 2008, the same day that Helena District Judge Dorothy McCarter ruled that the Montana Constitution protected the right of terminal patients like him to obtain lethal prescriptions from physicians.

The state appealed, and the final chapter of the story begins Wed-nesday, when the Montana Supreme Court will hear from lawyers from both sides in oral arguments.

The positions the high court will hear are compelling, posing difficult questions about death, the manner of death and what the state's role in such a death ought to be. More than two dozen groups, from the Montana Catholic Conference to the American Civil Liberties Union, have also weighed in, filing "friend of the court" briefs laying out their arguments.

If the high court upholds McCarter's decision, Montana will be the third state where assisted suicide is legal.

Lawyers in favor of physician-assisted suicide argue that Montana's Constitution guarantees all citizens the right of dignity and privacy. There is nothing more private, they argue in documents filed before the court, than the decision to end one's life. Every Montana citizen has the right to dignity, they argue. If a terminal illness - or the medical efforts to relieve pain in the final stages of a terminal illness - rob a citizen of that dignity, the individual has the constitutional right to prescription medicines to end their lives, prescriptions only doctors can give.

The state argues that far from protecting assisted suicide, the Montana Constitution is intentionally silent on the issue. When the constitution was written in 1972, framers considered - and rejected - enshrining assisted suicide in the document. Any stance as significant as changing Montana's homicide statutes, as the assisted-suicide proponents seek to do, ought to be debated by the people through an initiative or through their representatives in the Legislature. In the absence of that, the state argues, many unanswered questions remain: Who decides if a patient is "terminal"? Who decides if a patient is "mentally competent"? Can any doctor prescribe medicine intended to kill someone? Additionally, they argue, Montana law does not force dying patients into undignified deaths; rather, it encourages palliative care - a kind of medical specialty for end-of-life cases where doctors are no longer trying to save someone but are relieving their pain in the face of certain death.

Suicide is already legal under Montana law. What's at stake in the Baxter case is not whether a terminal patient may choose to end his or her life, but how. Montana law now holds that it is murder for someone to help another commit suicide, which includes doctors prescribing medicine intended to bring about death.

The case was brought by a group of people: Compassion & Choices, a national group with headquarters in Denver that advocates what it calls "self-determined dying"; four Montana doctors who say patients have asked them for help in dying; and Baxter and another man, Steven Stoelb, of Livingston.

Stoelb later withdrew from the suit. A doctor hired by the state determined that his inherited, chronic condition was not life-threatening but that he had a history of depression.

Kathryn Tucker, legal affairs director for Compassion & Choices and one of the lawyers in the case, said the Montana Constitution is clear: Dignity and privacy are inherent rights. Seeking to end one's life in a peaceful way, when death is imminent and the conditions of life are intolerable, is precisely the kind of choice Montana's constitution protects.

"The only possible justifications for the state to criminalize aid in dying are to vindicate a specific moral view and to protect patients from their own actions," Tucker's brief states.

In an interview last week, Tucker said society often weighs rights against one another. In this case, the court must weigh the obligations of the state to protect life and the rights of citizens to dignity and privacy.

People who are not terminally ill may not choose a medically hastened death, she said, because the closer one comes to death, the more personal and private that choice becomes and the less room there is for government in that choice.

"It may be a challenge to draw that line," she said, but that is what courts must do when interpreting the constitution.

Tucker also said it is important that the patient be able to "self-administer" the drugs, or swallow them independently. She acknowledged that some terminal conditions may rob patients of that ability. In those cases, the patient would not be able to choose physician-assisted suicide. The state must be certain that a patient is truly making the choice, she said.

But lawyers for the state disagree. Physician-assisted suicide "is inconsistent with the 'practice of medicine' and is not necessary to ensure a humane death," they argue in filings before the court.

What the assisted-suicide proponents sought, they argue, was a categorical exemption from the state's murder laws for doctors, so long as those doctors are providing "aid in dying" - including doctors who might actually be trying to kill someone or doctors who kill someone accidentally.

No criminal law is more sacrosanct, they argue, than the laws prohibiting murder. And yet the lower court has cut an exemption in that law on the theory that the Montana Constitution protects physician-assisted suicide as a fundamental right.

"Neither the plaintiffs nor the district court could cite a case where a court has recognized a societal interest in assisted suicide sufficient to override the state's laws," they argue.

Chief Justice Mike McGrath, who was attorney general when the state began litigating the case, will not participate in the argument. Miles City District Judge Joe Hegel is sitting in for McGrath.

The arguments begin at 9:30 in Room 303 of the Montana Capitol and are open to the public. People unable to physically attend may listen or watch live broadcasts through the Montana State Judiciary Web site at


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