HELENA - As he suffered great pain and discomfort in his final days with terminal leukemia, Robert Baxter of Billings should have been allowed to choose how to die - and the state has no "compelling interest" to deny that choice, his attorney told the Montana Supreme Court Wednesday.
"The question is, is there a state interest in forcing a dying, suffering patient to remain alive against his will?" asked lawyer Mark Connell of Missoula. "Simply so he can suffer a little longer, because the end result will be the same?
"It's our contention that at that point, the balance has tipped, and at that point the patient's right to self-autonomy overcomes any interest the state has in prolonging life another slight degree, so that life doesn't end sooner."
Baxter died Dec. 8, 2008, just hours after a state district judge in Helena ruled that he had the right to have a physician help him die, technically making Montana one of only three states that allow physician-assisted suicide or "aid in dying."
But the state immediately appealed that ruling to the Montana Supreme Court, and no physician or patient in Montana has acted under the initial order to assist in any death.
The widely watched case was heard before Montana's seven Supreme Court justices Wednesday, in front of about 150 people in the old Supreme Court chambers in the state Capitol, where the court had presided before moving to a new building in the early 1980s. It was the first time in 27 years the court had heard arguments in its old chamber, which is now a meeting room for the Legislature.
Baxter, another patient, several physicians and the group Compassion & Choices filed the lawsuit in October 2007, saying that a patient's right to privacy and human dignity, as guaranteed by Montana's constitution, allows them to choose aid in dying for a terminal patient.
Anthony Johnstone, the assistant attorney general arguing the case for the state, said it's the Legislature's job, rather than the court's, to decide whether and define how physician-assisted suicide should happen in Montana.
A court declaration that individuals have "absolute autonomy" to decide how they should die goes too far, is against established medical practices, and isn't supported by the constitution, he said.
"A legal definition of the practice of medicine imposes a clear duty on the physician to cure, to treat, and not to harm or cause death," Johnstone argued. "The plaintiffs would replace these bright, well-established lines with a broad right to physician-assisted suicide."
Several justices pointedly questioned Johnstone, asking how the state could claim the right to supersede the medical wishes of individual patients.
"Who's supposed to determine a person's quality of life?" asked Justice James Nelson. "That person who is living the life, or the state of Montana? Isn't that an awfully paternalistic attitude you're taking?"
Johnstone said he state has a "compelling interest" in treating all life as valuable, whether it's young, old, sick or healthy. Giving individuals a broad right to have assistance in ending their own life could lead to abuses, he suggested.
Justice John Warner also asked how the constitutional guarantee of individual dignity wouldn't apply in this case, to allow someone to die with dignity, if that was their choice.
"If you're in the throes of death and suffering, why would not the constitution provide that this personal concept of dignity should receive constitutional protection?" he asked. "Why would we not say that?"
Johnstone said the question is not "why not," but rather why: Why does the constitutional guarantee of dignity lead directly to a right to assisted suicide? It doesn't, he argued, and saying it does makes it more difficult to put any regulations or restrictions on it.
Justice Jim Rice took a different tack in his questioning, saying that the Legislature already has given Montana patients and physicians the ability to get "palliative care," which helps make a dying patient more comfortable.
A court ruling going beyond those parameters could violate the "the most significant and fundamental tenets of the law, that is the protection of human life," Rice said.
"Why should we, in view of this most fundamental principle of the law, disrupt what the Legislature's efforts have been to balance against this principle by giving tools to the suffering patient . to control and alleviate the suffering, but not cross this very fundamental and important principle of American law?" he asked Connell.
Connell said state laws already cross that line, "over and over again," recognizing where physicians may hasten death, to alleviate suffering.
"Our contention, as you know, is that there's not much difference between that and aid-in-dying," he said. "It takes that a small step further. These are people who are about to die, regardless of the law and what the doctors decide to do."