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Miles J. Zaremski

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Montana Supreme Court Hears Right to Die Case

Posted: 09/09/09 04:08 PM ET

In the first case of its kind ever to come before a State Supreme Court, the Montana Supreme Court heard oral arguments on September 2, 2009 in the case of Baxter, et al. v. State of Montana, where the plaintiffs argued that a right exists under Montana's constitution to die with dignity if an individual is competent, terminally ill and wishes to self-medicate in order to end agonizing pain and suffering due to the terminal illness. Both sides were supported by several amici (in legal parlance, "friend of the court") briefs -- one of which is noted later in this blog. The case attracted so much interest that the oral arguments were switched from the Supreme Court building to the state's ornate, old Supreme Court chambers in the state capitol building, now used as a state senate hearing room. The last such legal case argued there was 27 years ago.

Before the case reached the state's highest court, a lower court ruled that under the dignity and privacy provisions of Montana's constitution, a person who is competent but who suffers from a terminal illness and who wishes to self-medicate to end his life has a constitutional right to do so. The only proviso was that the legislature should thereafter determine how to best effectuate such a right, i.e., set up a process and procedure while protecting the medical profession as well. Of interest is that on the day that the lower court ruled as it did, the lead plaintiff, Bob Baxter, passed away from his terminal illness.

Before the Supreme Court, the state argued that it has a compelling interest to protect the lives of all Montanans, what was being asked for would jeopardize other classes of citizens, and "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 (state) constitution." This type compelling interest is recognized by every state. The lead counsel for the plaintiffs, Mark Connell of Missoula, Montana, countered by arguing adeptly, "The question is, is there a state interest in forcing a dying, suffering patient to remain alive against his will, simply so he can suffer a little longer, because the end result will be the same?"

One justice queried,"Who's supposed to determine a person's quality of life? That person who is living the life, or the state of Montana? Isn't that an awfully paternalistic attitude you're (state) taking?" Another justice asked how the constitutional guarantee of individual dignity would not apply in the case. Shouldn't someone be allowed to die with dignity if that was their choice? Of course, other justices on the court expressed concerns for the proper role of the legislature to protect human life of all Montanans, and that since the legislature had not spoken on the subject, its silence must "speak volumes".

The debate over aid in dying has been going on at least since the U.S. Supreme Court said over 15 years in two cases that it does not violate the U.S. Constitution's guarantees to equal protection and due process by denying a terminally ill patient the right to die as (s)he pleases. That, the Supreme Court said, is left for the "laboratories of the states" to determine. Thereafter, Oregon enacted the country's first Death With Dignity Act, now followed by the State of Washington. The Oregon statute has survived many legal challenges and the data from over a decade of use has been encouraging.

One issue that often is left out of the debate is the nomenclature to be used when a competent, terminally ill patient requests a death of his own choosing. The words "suicide", or "physician assisted suicide" are generally used. But, this is wrong and too emotional, as was first pointed out over 15 years ago by the American College of Legal Medicine (ACLM), a professional organization approaching its 50th anniversary since it was formally incorporated. This group, originally founded by those possessing both the medical and doctor degrees, believes that what occurs is not an intentionally taking, or assisting in an intentional taking, of one's life. The affected person merely wants to be aided in dying,to die a dignified death. Such a demise is no different than, as presented by the ACLM in the amicus brief it filed in the Montana case, persons in the World Trade Center Twin Towers who jumped to their deaths from many floors up to escape flames and destruction, or a soldier who falls on an explosive during war just to save his buddies, but knowing death is certain to follow. A person wracked with pain and suffering from a terminal disease who wishes to end such agony is no different that the two other examples the ACLM cited in its legal writing to the court. This group also opined that allowing a legislature to decide how to implement a constitutional right to die with dignity, continue to promote palliative care, and protect the medical profession all the while were necessary considerations.

In the end, the Baxter case prompts us all to think about choices we might have to face at the end of our lives. But just as we have the right to decide how we are to be treated during our lifetime when not confronted with when we will die due to a life-determining illness or disease, let's hope a majority of the members of the Montana Supreme Court will recognize a sea change in our thinking on the subject addressed by this case. After all, as human thought advances over time so do our views of issues once held sacrosanct. This is part of the human condition and ingrained within the fabric of social transition. Perhaps aid in dying will once and for all be viewed within the penumbra of rights that fall within human dignity and privacy.