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Capitol issues

The sculpture “Montana” atop the state Capitol in Helena towers over the life-size statue of Montana Territorial Gov. Thomas Francis Meagher astride his horse.

The Montana House of Representatives voted 53-46 last month to threaten doctors with homicide charges if they write a prescription requested by a dying patient. House Bill 284 is titled "Consent to Physician Aid in Dying is Not a Defense to a Charge of Homicide."

The Senate Judiciary Committee has scheduled a hearing on HB284 for 9 a.m., Thursday in the Capitol.

Before senators vote on this legislation that specifically criminalizes acts of compassion for mentally competent, dying adult patients, we call on each of them to read the Montana Supreme Court opinion in Baxter v. Montana — a decision written 10 years ago that prompted this year's legislation. The court cited the protections in Montana law that guarantee the rights of terminally ill patients to decide what treatment they want and what they don't want. The court decided the case by finding that nothing in Montana policy prohibits a physician from writing a prescription at the request of a competent, dying patient. The court held that such a request by such a patient constitutes consent.

Bob Baxter, the lead plaintiff, was a retired Billings truck driver who was dying of a type of leukemia for which he had exhausted all treatments and hope of a cure while suffering progressively worse pain, digestive problems and many other ill effects of his terminal illness. Baxter and four doctors sued in state District Court, claiming that the Montana Constitution's guarantees of privacy and dignity entitled Baxter to request his physician to write a lethal prescription that would give Baxter the ability to decide if or when he wanted to end his dying process.

Constitutional issues

A District Court judge ruled in Baxter's favor, and the state appealed. The Montana Supreme Court said it didn't need to address constitutional issues to decide the case and instead upheld the ruling for Baxter based on how the state homicide statute defines consent. If Montana statutes were changed as HB284 proposes, the next court battle probably would be over individual rights to privacy and dignity guaranteed in the Montana Constitution.

Before triggering more litigation, we urge senators to carefully and fully consider the implications of forbidding doctors to write prescriptions on request for this narrow category of competent, dying patients.

Medical aid in dying as upheld in the 2009 Baxter opinion isn't euthanasia or "mercy killing." The court said: "(I)n physician aid in dying, the physician simply makes medication available to the patient who requests it and the patient ultimately chooses whether to cause her own death by self-administering the medicine — an act which itself is not criminal."

The court also noted that the "Montana Rights of the Terminally Ill Act indicates legislative respect for a patient’s autonomous right to decide if and how he will receive medical treatment at the end of his life. The Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient’s end-of-life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive."

Patient perspective

"I have lived a good and a long life, and have no wish to leave this world prematurely," Bob Baxter said in a deposition a few months before the Supreme Court decided the case on Dec. 5, 2009. "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. I feel strongly that this intensely personal and private decision should be left to me and my conscience – based on my most deeply held values and beliefs, and after consulting with my family and doctor – and that the government should not have the right to prohibit this choice by criminalizing the aid in dying procedure."

Baxter was unconscious when word of the court decision reached his family in Billings and did not benefit personally from the ruling. He died that very day.

If you agree that Montanans should be able to make this critical decision for themselves — and not be forbidden by government — contact your state senator (leave a message at 406-444-4800) and tell him or her to vote no on HB284.

The Legislature may reasonably spell out in statute that medical aid in dying is lawful only when a competent, dying patient requests it and ultimately chooses to self administer the drug. But government should not close off this avenue of relief at end of life for those who want to make their own final decisions.

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