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Update 2009-1
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One judge's ruling makes assisted
suicide
instantly legal in Montana
In a ruling some have described
as nothing less than judicial tyranny, Montana First
Judicial District Court Judge Dorothy McCarter
single-handedly legalized physician-assisted suicide (PAS),
ostensibly for Montana's terminally ill. Her December 5,
2008, ruling took effect immediately, despite the fact that
the state has no statute, restrictions, or guidelines in
place to govern the practice or protect patients.
The case challenging Montana's longstanding law against
assisted suicide was brought by 76-year-old Robert Baxter, a
leukemia patient who died before hearing the judge's
decision; four doctors affiliated with a Catholic hospital
in Missoula, none of whom were Baxter's physicians; and the
assisted-suicide advocacy group Compassion & Choices (C&C),
formerly known as the Hemlock Society. Kathryn Tucker, C&C's
legal director and veteran right-to-die litigator,
spearheaded the lawsuit.
McCarter's ruling centered on
her interpretation of the Montana State Constitution, which
guarantees not only a right to privacy, but also a right to
dignity. "The Montana constitutional rights of individual
privacy and human dignity, taken together," she wrote,
"encompass the right of a competent terminally [ill] patient
to die with dignity." [Baxter v. Montana, Decision and
Order, Cause No. ADV-2007-787, Mont. 1st Jud. Dist. Ct.,
12/5/08, at 23. Hereafter cited as Baxter v. Montana.]
But the judge went beyond establishing a patient's right to
assisted suicide by also ruling that such a right
"necessarily incorporates the assistance of his doctor…."
Without a doctor's help, she wrote, "the patient would
increasingly become physically unable to terminate his life,
thus defeating his constitutional right to die with
dignity." [Baxter v. Montana, at 19. Emphasis added.]
Furthermore, she held, "The patient's right to die with
dignity includes protection of the patient's physician from
liability under the State's homicide statutes." [Baxter v.
Montana, at 23]
The ruling declared PAS a "fundamental" right that "cannot
be limited by the State without a showing of a compelling
state interest." [Baxter v. Montana, at 19] Such a finding
opens the door for expanding the right beyond the terminally
ill to other categories of patients-the chronically ill, the
disabled, the anguished mentally ill, etc.-since
"fundamental" rights generally apply equally to all.
Moreover, McCarter's contention-that a patient's
"constitutional right to die with dignity" is violated if
that patient becomes too disabled to physically terminate
his/her own life-may be interpreted in the future as grounds
for allowing active euthanasia, where the doctor, not the
patient, administers the lethal drug.
State appeals
& moves to stay ruling
Within days of McCarter's
decision to instantaneously legalize assisted suicide, the
state's Department of Justice submitted a motion asking
McCarter to stop her ruling from taking effect until after
the state's appeal to the Montana Supreme Court is decided.
Given the fact that Montana has no law governing PAS
practice, the state argued, there is nothing in place to
protect patients and their loved ones from abuse.
McCarter's ruling on the
stay was unequivocal:
[A] stay pending appeal
would deny the fundamental right of Montanans to die
with dignity for a lengthy period of time while the
case is being appealed. IT IS THEREFORE ORDERED that
the State's motion for stay is DENIED. [Baxter v.
Montana, Cause No. ADV-2007-787, Decision and Order,
1/6/09]
Reaction
McCarter's ruling prompted
strong reactions from ITF lawyers. Executive Director Rita
Marker concluded, "It's judicial activism, judicial
malpractice, and judicial arrogance-without question, all of
the above."
ITF Associate Director
Wesley J. Smith penned the following on his blog:
So the court takes a
propaganda buzz term, "death with dignity," and
turns it into a constitutional right to suicide
because the Montana Constitution uses the word
dignity. Unbelievable, but this is what judges are
becoming. It is, after all, where the power lies. [wesleyjsmith.com,
12/6/08]
As expected, national C&C and
its state chapters embraced McCarter's ruling. A C&C of
Washington e-mail message to supporters claimed, "If Judge
McCarter's decision is upheld this will be the first
legal-challenge-based victory for aid in dying [assisted
suicide] in the U.S." [C&C of WA, E-mail Appeal, 12/08]
National C&C's head litigator
Kathryn Tucker said they will be looking to extend the
Montana judicial victory to other states. "We would look for
a place where they have a constitution with an explicit
privacy clause," she explained, "then we'd look to whether
that's been interpreted by the state supreme court in a way
that is protective of individual privacy and autonomy." "Any
state where they have both of those factors would be one
where this claim [constitutional right to assisted suicide]
might well succeed." [American Medical News, 1/5/09; posted
on-line, 12/26/08]
C&C's national president,
Barbara Coombs Lee, sees the Montana ruling as putting C&C
"at a tipping point in expanding choice at the end of life
to include aid in dying." [Compassion & Choices Blog,
12/6/08] But lawyer George Eighmey, executive director of
C&C of Oregon, said that the national group will likely wait
for the Montana Supreme Court to rule on the appeal of Judge
McCarter's decision before filing lawsuits in other states.
[Oregonian, 12/6/08]
ITF's Smith is hopeful,
however, that the Montana Supreme Court will not throw out
the state's long held and duly enacted law banning assisted
suicide. "Still," he said, "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." [World Net Daily, 12/6/08]
Montana assisted-suicide bill to be introduced in
legislature
In an attempt to pick up where
Montana District Court Judge Dorothy McCarter left off in
her broad ruling legalizing physician-assisted suicide
(PAS), newly elected Representative Dick Barrett
(D-Missoula) has drafted a bill-entitled the Montana Death
with Dignity Act (LC 1818)-intended to establish rules and
regulations for the newly legalized practice. The draft
bill, not yet officially introduced, is patterned after
Oregon's 10-year-old assisted-suicide law, the original
Death with Dignity Act (DWDA).
The Montana draft bill,
however, differs from Oregon's law in one significant area.
Oregon's law requires a waiting period of at least 15 days
between the patient's first oral request for PAS and the
doctor's writing of the prescription for lethal drugs. [OR
DWDA, ORS 127.850 §3.08] The Montana bill would greatly
speed up the process by requiring only a 48-hour wait
between the first request and the issuance of the
prescription. [MT LC 1818, Sec. 6 (1)]
Shortly after Judge McCarter's
ruling last December, Compassion & Choices' legal director,
Kathryn Tucker, laid the groundwork for Montana's "token"
waiting period. Speaking on Spokane Public Radio, she said
that Montana would have more freedom regarding PAS than
Oregon. "In Oregon there's a minimum 15-day waiting period.
That provision very possibly would not survive
constitutional scrutiny because it would be unduly
burdensome," she explained. [OR Public Broadcasting,
12/9/08]
Washington State prepares for
assisted suicides
With Washington State's new
"Death with Dignity" law (Initiative 1000) due to take
effect on March 4, 2009, Washington's Department of Health
is under considerable pressure to set up the rubrics for
assisted-suicide practice. But, with the help of Compassion
& Choices (C&C), formerly called the Hemlock Society, the
job has not been that difficult. In fact, it has been a
classic case of not reinventing the "wheel." The state's
proposed rules governing physician-assisted suicide (PAS)
and the official forms to be used by doctors, pharmacists,
and patients are virtually identical to Oregon's, the first
state to legalize PAS.
On February 10, the Department
of Health held an open hearing to elicit comments, pro and
con, related to the agency's proposed protocols. Generally,
those who support PAS were very pleased with the rules as
written. Opponents, however, argued that the Washington law
would have the same loopholes and problems found in Oregon
unless the rules were sufficiently strengthened to protect
patients. They recommended more oversight authority for the
state, more transparency for the public, and stricter
reporting requirements and penalties for non-compliance.
Those in favor of assisted suicide countered that, if the
state did what opponents wanted, then there would be too
much red tape for both patient and doctor to endure.
Department of Health Secretary Mary Selecky will make the
final decisions on suggested rule changes. [Seattle
Post-Intelligencer, 2/9/09; Seattle Times, 2/11/09; News
Tribune, 2/13/09]
Participation
Meanwhile, health care
facilities and hospice programs are grappling with whether
they will engage in PAS practice. The University of
Washington health care system and Group Health Cooperative
are among those who have opted to provide the death service.
Catholic health care systems and others have already
declared that they will not participate in ending patients'
lives, and the practice will be prohibited on their
premises. [Seattle Times, 2/2/09]
Many health care providers
believe their involvement in assisted-suicide practice will
be totally voluntary, allowing them to be shielded from any
and all participation in a patient's induced death. They are
basing that belief on the law's provision stating, "[o]nly
willing health care providers shall participate" in
assisted-suicide deaths, [WA Death with Dignity Act, Sec.
19(1)(d)]
But those providers who declare
themselves to be non-participants will likely still be
required to participate by referring patients to doctors who
will give patients lethal drugs. That is because the law
excludes the act of referring from the definition of
"participation." The law states,
"Participation in this act"
does not include…(C) Providing a patient, upon
request of the patient, with a referral for another
physician….[Sec. 19(2)(d)(ii)(C); emphasis added]
Expanded assisted-suicide
bills introduced in
Hawaii & New Hampshire
Assisted-suicide
advocates-emboldened by their recent initiative victory in
Washington State and their judicial win in Montana-have
introduced expanded, Oregon-style physician-assisted suicide
(PAS) bills in Hawaii and New Hampshire. (A PAS bill in
Montana is currently in the legislature's drafting process
and has not as yet been formally introduced. See page 2 for
more on Montana's bill.)
Hawaii
Hawaii, a state repeatedly
targeted for PAS bills dating back to 1999, had three bills
under consideration in the 2009 legislative session-all
titled "Death with Dignity." Of the three, companion bills
HB 806 and SB 1159 were expected to survive the initial
hearing process. HB 806 had been "fast-tracked," meaning it
would skip the usual first hearing in the House Health
Committee and go directly to the House Judiciary Committee
for deliberation. But on February 18, Judiciary head Jon
Riki Karamatsu said that the bill would not be heard this
year, a decision effecting SB 1159 as well. [Honolulu
Advertiser, 2/18/09]
Unlike the Oregon PAS law, the
Hawaii bills required that a "monitor" be "present at the
time of actual administration of the medication to the
qualified patient…." [HB 806, §41 (a)] Notice it says the
death-producing drug would be administered "to" the patient,
not "by" the patient, and nowhere in the bills does it say
that the lethal drug has to be "self-administered." It could
be argued that the Hawaii bills would have legalized both
PAS and euthanasia.
New Hampshire
New Hampshire, another state
with a history of failed PAS bills, has a new "Death with
Dignity Act" proposal (HB 304). While this bill is patterned
after Oregon's law, it has been altered in ways that
significantly loosen Oregon's PAS restrictions.
Like a similar requirement in
Oregon's law, the New Hampshire bill states that a patient
eligible for assisted suicide ("qualified patient") must be
a resident of the state. However, unlike Oregon, HB 304
would allow non-residents to also qualify for PAS if they
are "regularly treated in a New Hampshire health care
facility." [HB 304, Chapter 137-L:2, XII]
Furthermore, the New Hampshire
bill drops entirely Oregon's definition of terminal
condition as being one which causes death in 6 months or
less. Instead, HB 304 defines a terminal condition as "an
incurable and irreversible condition, for the end stage of
which there is no known treatment which will alter its
course to death, and which…will result in a premature
death." [HB 304, Chapter 137-L:2, XIII. (Emphasis added.)
The bill contains no definition of "premature death."
This expanded definition does
not require that a qualified PAS patient be in the "end
stage" of the condition. Consequently, an early-stage
Parkinson's Disease or emphysema patient could be considered
"terminal" under the terms of this bill. And it doesn't stop
there. A person with quadriplegia, spinal muscular atrophy,
HIV/AIDS, Multiple Sclerosis, and other life-shortening
conditions could also be assisted-suicide eligible under New
Hampshire's bill.
Editor's Note:
For the ITF's complete
analysis of the Hawaii bills, see:
http://www.internationaltaskforce.org/hawaii_analysis.htm
For the analysis of New
Hampshire's bill, see:
http://www.internationaltaskforce.org/new_hampshire_analysis.htm
Versions of California's "Right to
Know" law surface in Arizona & Maryland
Last year, the California Legislature passed the "Right to
Know End-of-life Options Act" (AB 2747). The bill-carried by
a perennial assisted-suicide bill sponsor in conjunction
with the PAS activist group Compassion & Choices (C&C)-was
clearly intended to erode opposition to assisted-suicide
legalization and to set up C&C and other like groups as the
professional go-to sources for end-of-life counseling. Now,
similar bills have been introduced in Arizona and Maryland.
Although the wording in each
bill is slightly different, both Arizona's SB 1311 and
Maryland's HB 30 mandate that, when a health care provider
gives a patient a terminal diagnosis, that provider is
obliged to give the patient information and/or counseling
regarding legal end-of-life options. [SB 1311, Art. 3,
§32-3242(A); HB 30, §5-902(A)] If these bills pass and
assisted suicide ever becomes legal in those states, it
would then be against the law to not offer the
assisted-suicide option to a patient newly diagnosed as
terminal.
Both bills as introduced
encourage health care providers to refer terminally-ill
patients to organizations specializing in end-of-life care
that provide information on factsheets and internet
websites. [SB 1311,§32-3242(C); HB 30, §5-902(E)(3)] The
assisted-suicide groups C&C and Final Exit Network-two
organizations that currently help people to commit suicide,
often clandestinely-would qualify as referral sources for
both information and counseling. There are no provisions in
either bill that would prohibit these groups from giving
vulnerable patients how-to-commit-suicide information.
Moreover, the bills contain no oversight or accountability
requirements and no credentialing mandates for death
counselors, most of whom are C&C and Final Exit Network
volunteers.
News briefs from home & abroad . .
.
-
• Meeting with
reporters in Seattle, the heads of Compassion & Choices
(C&C) chapters in Oregon and Washington revealed that
Oregon had a record high 55 assisted suicides in 2008.
Year 2007 had previously been the record holder with 49
deaths recorded. The official Oregon state report on
recorded PAS deaths in 2008 has not yet been released,
but is expected to be made available in early March.
According to George Eighmey, executive director of C&C
of Oregon, volunteers from his organization have
witnessed the deaths of 85% of all Oregon's
assisted-suicide patients. The head of C&C of
Washington, Robb Miller, explained that his group
considers itself as the "steward of the law" and the
"advocate and counselor" for all patients contemplating
an assisted-suicide death under Washington's new PAS
law. [Seattle Post-Intelligencer, 1/9/09]
• A new "conscience
rule" issued by the U.S. Department of Health & Human
Services (HHS) took effect in January 2009. It protects
the right of health care workers to refuse to
participate in medical procedures and treatment that
they consider ethically or morally objectionable. The
regulation allows the federal government to withhold or
withdraw funding from providers and facilities that
discriminate against workers who are conscience bound
not to be involved in certain medical services. Most
people erroneously assume that the rule only applies to
abortion-related procedures, but it definitely has
implications for assisted suicide and euthanasia
practice as well. In a scathing article on the subject,
C&C Executive Director Barbara Coombs Lee wrote that the
rule threatens induced death practices. "Under the guise
of protecting those with strong religious and moral
convictions from workplace 'discrimination,' the rule
encourages zealous, sanctimonious healthcare workers to
act out their convictions at the expense of patients
they are supposed to serve." [Huffington Post, 1/7/09]
HHS Secretary Mike Leavitt sees it differently. "This
rule protects the right of medical providers to care for
their patients in accord with their conscience," he
explained. [HHS Press Release, 12/18/08]
• San Francisco
transplant surgeon Hootan Roozrokh has been found not
guilty of felony dependent adult abuse by attempting to
hasten the death of Ruben Navarro, 25, in order to
harvest his organs for transplantation. Navarro had a
degenerative neurological condition and was diagnosed
with irreversible brain damage. On February 3, 2006,
when Navarro was close to death, his mother authorized
the retrieval of his organs, but he was not technically
brain dead, a usual requirement for organ procurement.
Roozrokh, who should not have been in the same room with
Navarro prior to his death, ordered that Navarro be
taken off life support. When Navarro's heart kept
beating, witnesses said Roozrokh ordered a nurse to give
the patient excessively high doses of morphine and
Ativan. But Navarro still didn't die within the one hour
time limit for organ retrieval, so his organs were never
removed. The jury issued its not-guilty verdict after
more than two days of deliberation. Jurors indicated
that the prosecution did not meet its burden of proof
beyond a reasonable doubt. [AP, 12/18/08; San Luis
Obispo Tribune, 12/18/08; Ventura County Star, 12/19/08]
• Canadian MP
Francine Lalonde has introduced a bill to legalize
assisted suicide. The text of the newly submitted bill
is not currently available. This is the third attempt by
Lalonde, who is battling cancer, to get the Canadian
Parliament to transform the crime of assisted suicide
into a medical treatment. But, given parliament's
conservative bent, the bill is not expected to fare any
better than her two previously failed bills, C-407
(2005) and C-562 (2008). [CanWest News, 2/15/09]
• Parliament member
Margo MacDonald has launched a campaign to legalize
assisted suicide in Scotland. MacDonald, who has
Parkinson's Disease, plans to introduce her "End of Life
Choices (Scotland) Bill," sometime this year, but first
she needs to gain the support of 18 fellow Scottish
Parliament members. Her bill would allow assisted
suicide for not only the terminally ill, but also those
with degenerative conditions and those "who unexpectedly
become incapacitated to a degree they find intolerable."
MacDonald is contemplating allowing children around age
12 to request assistance to end their lives. "People of
that age," she told reporters, "have the legal right to
determine in the case of their parents breaking up which
parent they will live with. Arguably, therefore, they
are being given a right to choose a lifestyle and their
wishes are respected." [BBC, 12/8/08; The Scotsman,
12/8/08; The Herald, 12/9/08]
• Over 100 Britons
have travelled to Zurich, Switzerland, to die at the
hands of the assisted-suicide group Dignitas. More than
700 Britons are paid Dignitas members, making them
eligible for death assistance in Switzerland if they so
decide. [The Times (London), 10/17/08; Herald de Paris,
11/18/08]
The September 2008 assisted
suicide of 23-year-old Daniel James, a paralyzed former
Rugby player, was one of the more controversial Dignitas
deaths, since he was young, disabled, and not terminally
ill. According to his parents, Julie and Mark James,
Daniel was "not prepared to live what he felt was a
second-class existence" in his paralyzed state. His
parents supported his decision to die and accompanied
their son to Zurich. While assisting a suicide carries a
penalty of up to 14 years in prison, the Crown has not
prosecuted any of the family members, friends, or
helpers involved in the Dignitas deaths. [Sky News,
10/17/08; Daily Mail, 1/10/09]
Other high-profile Dignitas
cases included Anne Turner (a British doctor whose
January 2006 death was the subject of the BBC drama, A
Short Stay in Switzerland-aired 1/25/09) and Craig Ewert
(a motor-neuron disease patient whose actual September
2006 death was shown on a Sky TV documentary aired on
12/10/08). [The Times, 1/26/09; The Guardian, 12/10/08;
AP, 12/10/08]
• British Dignitas
member Debbie Purdy, 45, who has multiple sclerosis,
wanted firm assurances from the Crown that her husband,
Omar Puente, would not be prosecuted if he accompanies
her to the Swiss clinic to die. Purdy took her case to
the Royal Courts of Justice on October 29, 2008, to
force the Director of Public Prosecutions to issue
guidelines on when assisted-suicide cases would be
prosecuted. The court denied Purdy's request, saying
that only parliament, not the courts, can give her the
assurance she seeks, since the law would have to be
changed. With help from the British right-to-die
organization Dignity in Dying, Purdy appealed the
decision. On February 19, the Appeal Court ruled that it
could not grant Purdy's husband blanket immunity from
prosecution, adding that other recent assisted-suicide
cases indicate that prosecution would be unlikely. "I
feel that I have won my argument, despite having lost
the appeal," Purdy told the press. [Guardian, 10/30/08;
AP, 2/19/09; BBC, 2/19/09]
• Soraya Wernli, a
former nurse employed by Dignitas director Ludwig
Minelli, has told Swiss authorities that the suicide
clinic is a "production line of death concerned only
with profits." Wernli, who acted as an undercover
informer for eight months, gave detectives information
on Minelli and his practices. She said after Minelli had
asked her to sort through the contents of large garbage
bags he had stored, she realized that the cell phones,
purses, shoes, glasses, money, wallets, and jewelry in
the bags were actually possessions of the people who
died at the clinic. She said Minelli made the clients
sign forms giving their possessions to Dignitas. Minelli
then sold everything to pawn and second-hand shops.
Wernli reported that Dignitas deaths were seldom
dignified. After paying over $9,000, clients were rushed
through, arriving in the morning and dead hours later.
The doctors Minelli used to dispense the lethal drugs
were either corrupt or inept, she said. Never once did
they refuse to hand out the drugs. [Daily Mail (London),
1/26/09]
• Former Hamburg
justice minister Roger Kusch, referred to in Germany as
Dr. Death, is that country's first assisted-suicide
entrepreneur. For a little over $10,000, he will provide
advice on how to commit suicide and offer support for
those wanting to die. "I provide a service," Kusch told
AFP news service. "It's of value, and in our society
such things do not come free." Kusch also has invented a
suicide machine, an intravenous device modified to
inject a suicidal person with a lethal dose of potassium
chloride. It's for sale or rent depending on the
situation. German police have issued a temporary
restraining order in the hopes of stopping Kusch from
assisting any more suicides. But, Kusch, a doctor of
law, has challenged the injunction. A court ruling is
expected soon. [Deutsche Welle, 12/29/08; Spiegel,
1/21/09]
• An Italian case,
tragically reminiscent of the Terri Schiavo case in the
U.S., has ended in the death of 38-year-old Eluana
Englaro. Eluana was diagnosed as being in a permanent
vegetative state (PVS) as a result of brain damage from
a car accident 17 years ago. In 1999, her father,
Beppino Englaro, started his long legal battle to have
her tube-supplied food and fluids withheld so she would
die. He claimed that his daughter had said before her
accident that she would not want to be kept alive by
artificial means. On October 8, 2008, the Italian
Supreme Court ruled that Eluana could be starved and
dehydrated to death. Months later, when the nuns caring
for her in a hospice near Milan refused to stop her tube
feeding, her father moved her under the cover of
darkness to a willing clinic in Udine. She died suddenly
on February 9, 2009, only three days after her food and
fluids were withheld. Usually in such cases, death
occurs in 10 to 14 days. A subsequent autopsy found that
Eluana likely died from cardio-respiratory failure,
possibly caused by her dehydration. Toxicology results
are not yet available.
Tragically, her death came
as the Italian Parliament was hurriedly trying to pass a
law prohibiting the removal of nutrition and hydration
from patients like Eluana. [Reuters, 2/9/09; BBC,
2/10/09; ANSA, 2/12/09]
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