Update: Year 2010, Volume 24, Number 1

But both bills go far beyond providing what is traditionally covered by health insurance, creating or expanding a myriad of wide-ranging social programs.⁴ Furthermore, both contain sections that have caused great concern. One such section deals with advance care planning.

Contrary to some emotionally charged statements about advance care planning, it is not mandated in the current bills nor was it an earlier version⁵ of the House bill. Like the earlier bill, the House bill that passed in November will pay physicians and other providers for conducting advance care planning consultations with patients about the "continuum of end-of-life services and supports available."⁶ Since health care providers will be paid for them, it is virtually certain they will routinely offer such consultations. Because patients—particularly the elderly and those who have been diagnosed with a serious condition—are often reluctant to refuse any service that a doctor suggests, they may feel compelled to accept an advance care planning consultation.

While the advance care planning section states that nothing in it shall "encourage the promotion of assisted suicide,"¹⁰ it does not prohibit discussing it as an option. Informing patients of its availability does not technically constitute encouragement. It is likely that the health care practitioner would inform the patient of assisted suicide as one among many end-of-life options.

Although the pertinent language states that the QHBP shall not promote assisted suicide, it does not preclude—in fact, it appears to mandate—informing individuals about its availability and the "planning tools" to access it. While the bill states that assisted suicide is not to be included as an option,¹² it is followed by a paragraph which includes an exception that clearly obliterates any such prohibition.¹³ Thus, when considered in its entirety, the section requiring QHBPs to provide end-of-life planning permits health insurers to subtly nudge enrollees to consider all end-of-life options including assisted suicide in states where it is permitted.

It is important to note that "assisted suicide" is not defined in either the House or Senate bill. Because assisted suicide advocates as well as the Washington and Oregon laws and the Montana court decision call the actions that constitute assisted suicide by other names ("physician aid-in-dying," "death with dignity," "doctor assisted death," etc.), the lack of a definition is problematic.

Equally problematic is the lack of any definition of "end of life care," although it is referred to many times throughout the legislation.

Unless "assisted suicide" is clearly defined and specifically prohibited—without exceptions—and unless the meaning of "end of life care" is narrowly defined, provisions in both the House and Senate bills are cause for serious concern. Otherwise, provisions, such as one in the Senate bill stating that community health insurance options "shall be prohibited from limiting access to end of life care," could compel all such insurance programs in Washington, Oregon and Montana to provide access to assisted suicide as part of end-of-life care.

An early draft of a Senate health reform proposal (unveiled by Sen. Max Baucus on October 19, 2009) contained a specific limitation on assisted suicide funding.¹⁴ However, that section was omitted from the Senate bill that passed.

Curiously, another provision that was in the Baucus bill, and which is included in the current bill, states that health care providers and institutions cannot be discriminated against if they do not provide assisted suicide.¹⁵ Such wording seems to imply that assisted suicide is acceptable and expected and that those who, for some reason, do not participate in it are out of the mainstream—although they will not face sanctions.

An additional program to be implemented under the Senate bill provides for the development of "patient decision aids," described as educational tools to help patients or their representatives and health care providers decide what treatments are best for them.¹⁶ This program is somewhat similar to the House bill's advance care planning provision. However, the Senate version will essentially control what will be included in the decision aids, preventing those not approved by the federal government from use in federally funded "shared decision-making resource centers."¹⁷ An outside "entity" will establish standards and certify the patient aids¹⁸ which, among other things, "shall address health care decisions across the age span" including children.¹⁹

The provision for an outside entity to establish standards and certify patient aids raises concern about how that entity will be selected, since assisted-suicide advocacy groups have been making concerted efforts to position themselves as the go to organizations regarding end-of-life issues, including healthcare decision making.

From the time that clinics began to expand services, parental consent has been requested for clinic services. However, this is carried out by requesting general consent²² and parents— knowing that their children can receive immunizations, sports physicals, etc.—rarely refuse such authorization for their children.

Gradually, services expanded from physical health needs to mental health interventions.²³ And, by 1999, school-based clinics were viewed as the primary source of health care for uninsured children and were providing virtually full services including prescribing and, in some cases, dispensing medication.²⁴ Although consent forms were still requested, some services were provided without parental knowledge or consent.²⁵

School-based clinics began to be seen as a necessary source of children's health care. As one policy analyst explained, "School-based clinics are definitely one way to provide health care for children who don't have insurance."²⁶

Since the rationale for passing federal health care reform is to provide health care coverage for the uninsured, it would be logical to expect that school-based clinics would become obsolete. It is, therefore, curious that the very bills that are intended to provide health coverage for all, allocate millions of dollars for school-based health clinics²⁷ that will "be integrated into the school environment" and will provide, "at a minimum, comprehensive primary health services."²⁸ The expanded clinics will provide on-site access during the academic year and 24 hour coverage through backup health providers to ensure access to services on a year-round basis when school is not in session.²⁹

The federal proposal includes a requirement of parental consent (which, as has been the customary practice, would likely be blanket consent at the beginning of the school year). However, such consent is only required for students who are minors and would not apply to most high school seniors. Federal privacy laws would preclude clinic personnel from even notifying parents if their 18-year-old high school senior was diagnosed with a life-threatening condition.

Thus, if the clinic made such a diagnosis and if the student had a condition qualifying her for assisted suicide in a state where it is legal, the clinic could refer the teenager to an assisted-suicide provider for a prescription for lethal drugs—completely without parental knowledge of what is transpiring.

Would this happen? No one can know for sure.

Could it happen? Yes.

The case involved a lawsuit filed in 2007 by 76-year-old Robert Baxter, a leukemia patient; four physicians from a hospital in Missoula, none of whom were Baxter’s doctors; and the assisted-suicide advocacy organization Compassion & Choices (C&C), formerly the Hemlock Society. C&C’s legal director and veteran litigator Kathryn Tucker spearheaded the lawsuit, arguing that Montana’s law prohibiting assisted suicide violated the state’s constitutionally guaranteed rights to both privacy and dignity. On December 5, 2008, District Court Judge Dorothy McCarter ruled in C&C’s favor, declaring physician-assisted suicide a "fundamental" constitutional right that includes "protection of the patient’s physician" from criminal liability. [Baxter v. Montana, Decision and Order, Cause No. ADV-2007-787, Mont. 1st Jud. Dist. Ct., 12/5/08] The state appealed McCarter’s ruling to the Montana Supreme Court.

While C&C and other assisted-suicide groups are calling the high court’s ruling a landmark victory, it was not the sweeping constitutional victory they sought. In fact, the court overturned McCarter’s decision that established a constitutional right to assisted suicide and judged the case "guided by the judicial principle that we should decline to rule on the constitutionality of a legislative act if we are able to decide the case without reaching constitutional questions." [Baxter Sup. Ct., pp. 6-7] The court looked, instead, to existing state statutes, specifically the consent statute and the state’s living will law (the "Rights of the Terminally Ill Act") as the basis for its ruling.

According to the majority opinion, the consent of a victim can be a defense for a criminal act as long as the person giving consent is competent; able to make a reasonable judgment regarding the nature of the offense; is not being forced, deceived, or under duress; and the act is not against public policy. "This ‘against public policy’ exception to consent applies to conduct that disrupts public peace and physically endangers others," the court held. "[W]e find no indication in Montana law that physician aid in dying provided to terminally, mentally competent adult patients is against public policy." [Baxter Sup. Ct, pp. 8 & 10] (Note: Throughout the decision, the court uses C&C’s euphemistic term "aid in dying" instead of the more accurate term "physician-assisted suicide.")

The court then looked to the state’s living will (advance health care directive) law as "an apt statutory starting point for understanding the legislature’s intent to give terminally ill patients—like Mr. Baxter—end-of-life autonomy, respect and assurance that their life-ending wishes will be followed." [Baxter Sup. Ct., pp. 13-14] According to the court, there is no significant difference between a physician’s act of withholding or withdrawing life-sustaining treatment in compliance with a patient’s advance directive and the act of writing a prescription for intentionally fatal drugs at the patient’s request:

In his dissenting opinion, Justice Jim Rice wrote, "[T]he Court has badly misinterpreted our public policy: assisting suicide has been explicitly and expressly prohibited by Montana law for the past 114 years." [Baxter Sup. Ct., p. 53]

Furthermore, he argued, "A flaw that underlies the Court’s analysis is its failure to distinguish between the physician’s basic intention in the assisted-suicide case from the physician’s intention while rendering treatment in other cases." In physician-assisted suicide, the doctor "provides a lethal drug with the intent to cause… the patient’s death." This is "diametrically opposed" to the provision of palliative care, when "the physician does not intend" to cause death, but rather "to relieve the patient’s pain and suffering." [Baxter Sup. Ct., p. 53. Emphasis in original.]

Applying the same reasoning to the Terminally Ill Act, Justice Rice wrote,

All the previous high court rulings in the U.S. dealing with the issue of assisted suicide are in accord with Justice Rice’s opinion that there is a significant difference between the wanted withholding and withdrawal of life-sustaining treatment and a doctor providing lethal drugs with the intention of ending the patient’s life. In 1997, the U.S. Supreme Court held in Vacco v. Quill:

Also in 1997, the Florida Supreme Court ruled in Krischer v. McIver (a case, similar to Montana’s):

Likewise, in 2001, the Alaska Supreme Court held in Sampson and Doe v. Alaska, that the "no difference" claim "overlooks an important distinction between a physician’s active participation in a patient’s suicide and a physician’s willingness to honor a patient’s request to cease or withdraw treatment… [T]hese two types of conduct are significantly different." [Sampson and Doe v. Alaska, 31 P. 3d 88, 99 (2001)]

The Montana Supreme Court’s ruling is by no means the final word in the battle for or against legalized assisted suicide in the state. It would have been if the court had declared a constitutional right to "aid in dying." But the court circumvented that issue and instead concluded that there is no statutory basis to prohibit the practice. It will now be up to the legislature to pass new statutes or change old ones to determine whether Montana’s physicians will be liable for assisting their patients’ induced deaths.

C&C’s Kathryn Tucker recently admitted that the legislature has the power to put an end to C&C’s efforts to turn assisted suicide into a medical treatment in Montana. "There would be no basis for prosecuting a physician who provides that care [aid in dying] unless and until—and that is a big if—the Legislature were to pass a law that makes a crime of aid in dying," she said. [American Medical News, 1/18/10]

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