By State Senator Jim Shockley and Margaret Dore
Published in The Montana Lawyer
The State Bar of Montana
There are two states where physician-assisted suicide is legal: Oregon and Washington. These states have statutes that give doctors and others who participate in a qualified patient’s suicide immunity from criminal and civil liability. (ORS 127.800-995 and RCW 70.245).
What is physician-assisted suicide?
The Baxter decision
Baxter found that there was no indication in Montana law that physician-assisted suicide, which the Court termed “aid in dying,” is against public policy. (354 Mont. at 240, ¶¶ 13, 49-50). Based on this finding, the Court held that a patient’s consent to aid in dying “constitutes a statutory defense to a charge of homicide against the aiding physician.” (Id. at 251, ¶ 50).
- If the idea of suicide itself is suggested to the patient first by the doctor or even by the family, instead of being on the patient's sole initiative, the situation exceeds "aid in dying" as conceived by the Court. If a particular suicide decision process is anything but "private, civil, and compassionate," . . . , the Court's decision wouldn't guarantee a consent defense. If the patient is less than "conscious," is unable to "vocalize" his decision, or gets help because he is unable to "self-administer," or the drug fails and someone helps complete the killing, Baxter would not apply. . . .
- No doctor can prevent these human contingencies from occurring in a given case . . . in order to make sure that he can later use the consent defense if he is charged with murder.
The 2011 Legislative Session
The 2011 legislative session featured two bills in response to Baxter, both of which failed: SB 116, which would have eliminated Baxter’s potential defense; and SB 167, which would have legalized assisted suicide by providing doctors and others with immunity from criminal and civil liability.
During a hearing on SB 167, the bill's sponsor, Senator Anders Blewett, said: “[U]nder current law, ... there’s nothing to protect the doctor from prosecution.” ( http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf ). Dr. Stephen Speckart made a similar statement: "[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision." (Id. at p.2)
Legalization would create new paths of abuse
In Montana, there has been a rapid growth of elder abuse. Elders' vulnerabilities and larger net worth make them a target for financial abuse. The perpetrators are often family members motivated by an inheritance. See e.g. www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf .
Preventing elder abuse is official Montana state policy. See e.g., 52-3-801, MCA. If Montana would legalize physician-assisted suicide, a new path of abuse would be created against the elderly, which would be contrary to that policy. Alex Schadenberg, Chair of the Euthanasia Prevention Coalition, International, states:
With assisted suicide laws in Washington and Oregon, perpetrators can . . . take a 'legal' route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over the administration. . . . [E]ven if a patient struggled, “who would know?
“Terminally Ill” Does Not Mean Dying
Baxter’s potential defense applies when patients are "terminally ill," which Baxter does not define. In Oregon, “terminal” patients are defined as those having less than six months to live. Such persons are not necessarily dying. Doctors can be wrong. Moreover, treatment can lead to recovery. Oregon resident, Jeanette Hall, who was diagnosed with cancer and told that she had six months to a year to live, said:
- I wanted to do our [assisted suicide] law and I wanted my doctor to help me. Instead, he encouraged me to not give up . . . I had both chemotherapy and radiation. . . .
It is now 10 years later. If my doctor had believed in assisted suicide, I would be dead.
Once a patient is labeled “terminal,” an easy argument can be made that his or her treatment should be denied. This has happened in Oregon where patients labeled “terminal” have not only been denied coverage for treatment, they have been offered assisted-suicide instead.
The most well known cases involve Barbara Wagner and Randy Stroup. (KATU TV, at http://www.katu.com/news/26119539.html , ABC News, at http://www.abcnews.go.com/Health/Story?id=5517492 Ken Stevens, MD, at pp. 16-17, at http://choiceillusionoregon.blogspot.com/p/oregons-mistake-costs-lives.html). The Oregon Health Plan refused to pay for their desired treatments and offered to pay for their suicides instead. Neither Wagner nor Stroup saw this as a celebration of their “choice.” Wagner said: “I’m not ready to die.” Stroup said: “This is my life they’re playing with.”
Oregon’s studies are invalid
- [A]ll the protections [in Oregon’s law] end after the prescription is written. [The proponents] admitted that the provisions in the Oregon law would permit one person to be alone in that room with the patient. And in that situation, there is no guarantee that that medication is self-administered.
So frankly, any of the studies that come out of the state of Oregon’s experience are invalid because no one who administers that drug . . . to that patient is going to be turning themselves in for the commission of a homicide.
In Montana, the moving force behind legalizing assisted suicide is Denver-based Compassion & Choices. On September 15, 2011, that organization’s president published an article on Huffington Post claiming that under Baxter physicians in Montana are “safe from prosecution.” ( http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html ) This is clearly not the case and propaganda. A physician relying on her advice could be charged with homicide.
Baxter is a flawed decision that overlooked elder abuse. Baxter has created confusion in the law, which has put Montana citizens at risk. Neither the legal profession nor the medical profession has the necessary guidance to know what is lawful.
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Senator Jim Shockley, of Victor, is a Republican State Senator, probate lawyer, and an adjunct instructor at the University of Montana School of Law.
Margaret Dore is an attorney in Washington State where assisted suicide is legal. She is also President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide. (www.choiceillusion.org) She is a Democrat.
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 To read this article as published in The Montana Lawyer and the opposing article by Senator Anders Blewett, go here: