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A state district court judge ruled yesterday that patients have a right to doctor-assisted suicide.

Montana’s First District Court Judge Dorothy McCarter, the Associated Press reports, declared in the case of Baxter et al. v. Montana that mentally competent, terminally ill Montanans may self-administer life-ending medication and that doctors who prescribe such medications need not fear criminal prosecution.

Robert Baxter, 75, a retired truck driver from Billings who suffers from lymphocytic leukemia, filed the lawsuit along with four physicians in the state’s district court system on Nov. 1, 2007. They were aided in the case by the assisted suicide advocacy group Compassion & Choices, formerly known as the Hemlock Society.

“It’s always been a very important thing with me,” says Baxter in Compassion & Choices Magazine. “I’ve just watched people suffer so badly when they died, and it goes on every day. You can just see it in their eyes: ‘Why am I having to go through this terrible part of my life, when we do it for animals? We put them out of their misery.’

“I just feel if we can do it for animals,” Baxter said, “we can do it for human beings.”

Baxter’s lawsuit asserts that Montana residents have a right under the state constitution’s privacy and dignity clauses to control their own death and seeks a declaratory judgment and injunctive relief to prevent the doctors from being prosecuted should they move ahead with the suicides of Baxter and another patient, Steven Stoelb, whose name was dropped from the case due to disputed facts of his disease.


Kathryn Tucker, director of legal affairs, Compassion & Choices

“A mentally competent, terminally ill Montanan should have the right to choose a peaceful death, when confronted by death,” Kathryn Tucker, Compassion & Choices director of legal affairs, told KTVQ-TV, Billings.

But Montana Assistant Attorney General Anthony Johnston disagrees.

Johnston told the television station, “The laws governing the medical profession say the medical profession is to heal, not to kill.”

Attorney Mark Connell, who filed the suit on Baxter’s behalf, told the Bozeman Daily Chronicle, “The question in our minds is whether the Montana State Constitution’s explicit guarantees of privacy and human dignity give the patient the choice to decide how his life is going to end.”

Indeed, the Montana Constitution does have clauses regarding privacy and dignity, including the statement in Article II, Section 4: “The dignity of the human being is inviolable.”

Compassion & Choices argues that those constitutional guarantees imply a right of patients to decide with their doctors how to achieve a peaceful death.

But some say extending those guarantees to cover physician-assisted suicide is manipulating the state constitution’s clauses to create a phantom “right.”

“They have based their lawsuit on the right to privacy in the Montana Constitution,” writes Steven Ertelt of LifeNews.com. “Originally meant as a means of protecting citizens from governmental snooping, state courts, including the Montana Supreme Court, have misused the clause to create an unlimited right to abortion. Pro-life advocates fear the same problem will occur vis-a-vis assisted suicide.”

Wesley J. Smith, an attorney who specializes in bioethics issues, told LifeNews that a Montana Supreme Court decision in 1999 did, in fact, stretch the privacy and dignity clauses to create a virtually unlimited abortion “right,” but that the courts ought to defer to the state legislature’s already created laws on assisted suicide.

“It should be hard for a court to throw out a law passed by the legislature of the kind that has never been found in any court in any litigation to be unconstitutional,” Smith said. “Still, the case is certainly no sure thing – either way. But I do know it is likely to be a legal fight to the finish that could eventually grab the attention of the entire world.”

If Judge McCarter’s decision in favor of Baxter’s case holds through possible appeals and is enacted by the state, Montana will join Washington and Oregon as the only states in the U.S. that allow doctors to help terminally ill patients end their lives.

 


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