Brief Amicus Curiae in Robert Baxter versus State of Montana*

Issues in Law & Medicine, Summer 2009 | Go to article overview

Brief Amicus Curiae in Robert Baxter versus State of Montana*


In its ruling in Baxter v. Montana,1 the District Court ruled that physicians who assist patients' suicides are protected from liability under the State's homicide statute.2 The Court mistakenly relied on Oregon as a laboratory in which legalized assisted suicide has been tested and its results scrutinized. The lack of transparency in implementation of Oregon's "Death with Dignity Act"3 renders Oregon an unreliable laboratory for assessing its social, economic and medical experiment with assisted suicide. The Oregon law's requirements, often referred to as safeguards, give a false impression of patient protection.

The District Court failed to address the context in which assisted suicide would be carried out in Montana. The State already has the highest suicide rate in the nation, twice the national average.4 So dire is the State's suicide rate that the legislature spends hundreds of thousands of dollars on suicide prevention programs.5

Montana's health care system, like that in all states, is under strain, setting the stage for assisted suicide becoming an acceptable, inexpensive method of health care cost containment. Furthermore, legalized assisted suicide can mask patient abuse and elder abuse.

Removing the time-tested barriers that protect patients by giving doctors the power to prescribe lethal drugs does not enhance patient privacy and dignity. Instead, it subjects patients to dangers that are uncontrollable and untraceable.

Argument

I. Lack of Transparency in Its Practice of Assisted Suicide Renders Oregon an Unreliable Laboratory for Assessing Assisted Suicide.

In 1997, before Oregon's assisted-suicide law went into effect, the United States Supreme Court concluded in Glucksberg that "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide."6 In her concurrence, Justice O'Connor noted the importance of "protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not be truly voluntary . . . ." She wrote that the democratic process would strike the proper balance "in protecting those who might seek to end life mistakenly or under pressure." She said the task of striking that balance was to be left to the "'laboratory' of the States."7

The District Court acknowledged that "the State has a compelling interest in preventing abuses stated by Justice O'Connor," but then dismissed the prospect of those abuses. The District Court mistakenly declared that "abuses can be controlled by state law,"8 citing the "numerous requirements to avoid such potential abuses"9 in Oregon's law.

Oregon's "laboratory" results are inconclusive, at best, since what takes place in that laboratory is shrouded in secrecy, precluding the possibility of knowing whether there are individuals whose lives have ended mistakenly or under pressure. In 2006, reflecting on that secrecy, Neil M. Gorsuch explained, "[W]hile Oregon is often touted as a 'laboratory' or 'experiment' for whether assisted suicide can be successfully legalized elsewhere in the United States, Oregon's regulations are crafted in ways that make reliable and relevant data and case descriptions difficult to obtain. Given this, it is unclear whether and to what extent Oregon's experiment, at least as currently structured, will ever be able to provide the sort of guidance needed and wanted by other jurisdictions considering whether to follow Oregon's lead."10

A. Lack of evidence of abuse is not evidence that abuse has not occurred.

Oregon's Death with Dignity Act changed medical practice in that State. It transformed the crime of assisted suicide into a medical treatment. Normally, medical treatments or interventions are subjected to intense scrutiny with meticulous attention paid to all aspects, including behavioral characteristics, before determining they are beneficial. That scrutiny entails careful examination of data, openness, and disclosure of any conflicts of interest. …

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