Montana Propaganda: Baxter & Assisted Suicide

By Margaret Dore, Esq.

Barbara Coombs Lee, President of Compassion & Choices, has posted a propaganda piece on Huffington Post falsely claiming that a physician who assists a suicide in Montana is "safe" from prosecution.  My request for equal time to correct the record on Huffington Post has been ignored.  A discussion of the actual law of Montana is set forth below. 

A.  Assisted Suicide

There are just 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). 

In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009).  Baxter gives doctors who assist a suicide a potential defense to criminal prosecution.  Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.  Under Baxter, a doctor cannot be assured that a particular suicide will qualify for the defense. 

B.  The Baxter Decision is Wrong

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 assisted suicide “constitutes a statutory defense to a charge of homicide against the aiding physician.”  (Id. at 251, ¶ 50).

Baxter, however, overlooked caselaw imposing civil liability on persons who cause or fail to prevent a suicide.  See e.g., Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Baxter also overlooked elder abuse.  The Court stated that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.”  (354 Mont. at 239, ¶ 11).  The Court thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.

The Baxter decision is fundamentally flawed and wrong.

C.  Doctors are not "Safe" Under Baxter

Baxter is a narrow decision via which doctors cannot be assured that a particular suicide will qualify for the defense. Attorneys Greg Jackson and Matt Bowman provide this analysis:

"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. . . .

http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

Even if a doctor "beats the rap" on prosecution, there is the issue of civil liability.  See Krieg and Nelson, supra.  Like O.J. Simpson, a doctor who escapes criminal liability could find himself sued by a family member upset that he "killed mom."  The doctor could be held liable for civil damages.

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Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide. (www.choiceillusion.org)  She is also an attorney in Washington State where assisted suicide is legal.

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[1] http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html 

Barbara Coombs Lee Renews Plea to Eliminate Oregon Reporting Consistent with Elder Abuse

By Margaret Dore

Today, Barbara Coombs Lee, President of Compassion & Choices, published a blog on Huffington Post arguing that reporting for Oregon's assisted suicide act is no longer needed.[1]  This is the same claim that Compassion &
Choices made in Montana before its proposed bill to legalize assisted suicide was defeated last February.

The reporting in question is consistent with elder abuse, i.e., of people with money.  This quote is from my memo against Compassion & Choices' bill, SB 167:

"Doctor reporting is . . . eliminated.  The former Hemlock Society, Compassion & Choices, claims that this is because Oregon’s reporting system has “demonstrated the safety of the practice.”  To the contrary, Oregon’s reports support that the claimed safety is speculative.  The reported statistics are also consistent with elder abuse.  No wonder Compassion & Choices wants the reporting system gone."  (Footnotes omitted).

To view the entire memo, click here. 

Massachusetts Assisted Suicide Petition Certified

By Margaret Dore

The Massachusetts' Attorney General's office has completed its certification review of 31 initiative petitions.  The petitions approved include a petition to legalize physician-assisted suicide.

"Physician-assisted suicide occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act." (AMA Code of Medical Ethics, Opinion 2.211). For example, a "physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide." Id.  

Proponents claim that legalization of assisted suicide will give patients "control" of their end of life care.  The proposed law, however, has no required witnesses at the death.  This creates the opportunity for an heir, or other person who will benefit from the death, to administer the lethal dose to the patient without his consent.  Even if he struggled, who would know?

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According to the Attorney General's press release:

1.  "Today’s decisions by the Attorney General’s Office are based on a strict constitutional review and do not represent the office’s support or opposition to the merits of the petitions."

2.  "Proponents of each certified initiative petition must now gather and file the signatures of 68,911 registered voters by December 7, 2011.  Once the requisite signatures are obtained, the proposal is sent to the state Legislature to enact before the first Wednesday in May 2012.  If the Legislature fails to enact the proposal, its proponents must gather another 11,485 signatures from registered voters by early July 2012 to place the initiative on the November 2012 ballot.  An initiative petition, if ultimately passed by the voters, becomes the equivalent of a statute."

"Hear No Evil, See No Evil"

Dear Editor:

Margaret K. Dore's article regarding Washington's assisted suicide law [Bar Bulletin, July] highlights a troubling disconnect between this statute and the commendable trend in Washington law to recognize and protect elders from abuse.

On the one hand, the Slayer's Statute, RCW 11.84, was recently amended to penalize heirs who financially exploit a vulnerable adult. On the other hand, safeguards for assisted suicide are minimal, far less than the standards demanded for executing a valid will. As Ms. Dore points out, record-keeping by the state appears to consist of the "hear-no-evil, see-no-evil" variety.

Theresa Schrempp
Sonkin & Schrempp, PLLC

To view the letter in the Bar Bulletin, go here (the link may not work for non-bar members):  https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=09&Year=2011&AID=letters.htm

The Emperor has No Clothes: "VSED"

Euthanasia proponents have a new campaign promoting starvation and dehydration.  VSED: "Voluntarily" stopping eating and drinking.  Below, Kate Kelly provides a real life example:  "I watched her suffer." 

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Mild stroke led to mother's forced starvation

By Kate Kelly

I watched an old woman die of hunger and thirst.  She had Alzheimer's, this old woman, and was child-like, trusting, vulnerable, with a child's delight at treats of chocolate and ice cream, and a child's fear and frustration when tired or ill.

I watched her die for six days and nights.

I watched her suffer, and I listened to the medical practitioners, to a son who legally decided her fate, and to an eldest daughter who advised him and told me that the old woman, my mother, was "comfortable," except when she was "in distress," at which times the nurses medicated her to make her "comfortable" again.

I watched the old woman develop ulcerations inside her mouth as she became more and more dehydrated; the caregivers assured me these were not painful.

Do we really want euthanasia?

http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=3260811

I would like to comment on Brian MacLeod's "Point of View" which appeared in the Aug. 8 Expositor.

Mr. MacLeod writes that the Conservative government will not allow a debate on euthanasia and assisted suicide. He knows that a debate on this issue did take place in Parliament and the bill was soundly defeated. I do not think this matter should be decided by the courts but by our elected representative in Parliament.

I feel eminently qualified to speak on this matter because, six years ago this summer, we came home from vacation to find our beloved son, Keith, dead on his bed. He was 32 years of age. He had suffered from bipolar disorder for years and nothing seemed to help.

He had accessed an assisted suicide website and he followed their instructions to the letter. His death devastated our family and the pain never goes away.

Mr. MacLeod seems to believe that a majority of Canadians support legalizing euthanasia and assisted suicide. I do not know if this is true, and I do not care. Is our society not corrupt enough? Are we really ready to throw the most basic of all moral principles on the ash heap? "Thou shalt not kill."

Sheila Fischer Brantford