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Montana's top court to hear right-to-die arguments

  • Story Highlights
  • Court to hear arguments on whether residents have right to assisted suicide
  • Former truck driver who filed suit died in December of leukemia
  • He said terminally ill patients should be able to get drugs to commit suicide
  • Only Oregon and Washington state allow physician-assisted suicides
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(CNN) -- Former truck driver Robert Baxter died in December, a victim of leukemia. But the legal battle over his death -- and whether he had the right, along with his doctors, to hasten it -- continues.

The Montana Supreme Court will hear arguments Wednesday over whether residents facing a terminal illness have the right to physician-aided suicide.

Baxter claimed in his initial suit, filed in Montana's 1st District Court, that competent terminally ill patients should be able to obtain drugs from their doctor that they can use if they decide to commit suicide.

The suit maintains that aid in dying for Montanans is protected under the state constitution's guarantees of privacy, dignity and equal protection.

Four doctors join Baxter as plaintiffs in the suit, along with Compassion and Choices, an organization that, according to its Web site, aims to improve care and expand choices for patients at the end of life.

In addition, 21 "friend of the court" briefs have been filed with the state Supreme Court by a variety of organizations supporting both sides of the case.

In an affidavit, filed in June 2008, Baxter said he was 75, a former Marine who served in the Korean War. He said he retired from long-haul truck driving in 2003 after 49 years.

"I am terminally ill with lymphocytic leukemia with diffuse lymphadenopathy, a form of cancer, which is a progressive disease with no known cure," Baxter said in the document. "It is treated with multiple rounds of chemotherapy, which typically become less and less effective as time passes."

Baxter said he suffered symptoms including anemia, chronic fatigue and weakness, nausea and "significant ongoing digestive problems," which were only expected to worsen as the disease progressed and the effectiveness of chemotherapy waned.

"I have lived a good and a long life, and have no wish to leave this world prematurely," Baxter said. "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."

First District Court Judge Dorothy McCarter, in a December 5 decision, ruled in Baxter's favor, but he died the day the ruling was issued.

The state appealed, saying in its brief, "the state does not deprive Montanans of humane, medically appropriate end-of-life care insofar as it involves the lawful practice of medicine, including palliative care, hospice and the withdrawal of life support. Plaintiffs seek something else: a right of physicians to commit homicide against terminally ill patients with impunity and no more accountability than the physician's own conscience."

The only two states that allow physician-assisted suicides are Oregon and Washington, both through voter-approved initiatives. Both Florida and Alaska have expressly declared privacy rights in their state constitutions similar to Montana's, state officials said in court documents, "yet both of those states' Supreme Courts have refused to read a right to assisted suicide into those broad clauses."

Montana's homicide laws do not force a terminally ill patient to bear pain and suffering, the state maintains, or prevent doctors from providing patients with drugs to control pain despite the risk that those drugs themselves may cause death. Only when a doctor intends to cause death, and the patient dies, does a doctor face potential prosecution under Montana's deliberate homicide law.

"The homicide laws plaintiffs challenge never have been applied to prevent terminally ill patients from receiving 'aid in dying' in the form of necessary and humane palliative end-of-life care," state officials write in their brief.

But, Baxter's attorneys responded, the argument that palliative care precludes the need for physician-assisted suicide is "akin to suggesting that because a woman facing unwanted pregnancy has the option of placing a baby for adoption, there is no need to protect her right to abortion" or that "because gay people can opt for heterosexual relationships, there is no need to respect their choice for a same-sex partner."

Although the district court left it to the Montana Legislature to implement its decision, state officials maintain that the debate belongs in the legislature, not the courtroom.

But, Baxter's attorneys insist, "if the Montana Constitution's guarantees of privacy and dignity protect any decision, surely they protect this one."

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