Sept. 2, 2009— -- Robert Baxter, an avid outdoorsman, couldn't hold on long enough to see the legal victory that he hoped would allow other terminally ill patients the right to die.
The 76-year-old Montana truck driver -- an "every guy Joe" whose body had been ravaged for 12 years by cancer -- stopped chemotherapy last November and began to rapidly decline and lose weight.
"He was so skinny he couldn't sit because his skin hurt," said his 47-year-old daughter, Roberta King of Missoula. "It pinched his skin together because there was no meat. It was that bad."
But his death on Dec. 5, 2008, came at nearly the same hour that the First District Judicial Court of Lewis and Clark County upheld the right for the dying to seek help ending their lives from their doctors.
Today, King plans to carry on her father's historic challenge to the Montana Supreme Court, testifying with other families in a 70-minute hearing that denying their loved ones a "compassionate option" to their end-of-life robs them of their right under the state constitution to dignity and self respect.
A Death With Dignity law was enacted in Oregon in 1997 and in Washington state in 2008, but in both cases by referendum, not constitutional challenge.
Other human rights organizations and 31 Montana state legislators also support the suit.
The state argues that the constitution confers no right to aid in ending one's life. They also say that Montana has one of the highest suicide rates in the country and many parts of that rural state have limited access to health care, a landscape that would encourage assisted suicides.
The defendants also include ethical groups, who argue that legalizing assisted suicide opens the door to euthanasia, particularly for the old and disabled.
Both sides say the state supreme court will likely uphold the lower court ruling, especially in light of the state constitution's high regard for "the dignity of the human being."
The Montana Supreme Court will have the final word, with no appeal possible to the U.S. Supreme Court.
For 12 years, Baxter fought lymphocytic leukemia, but every bout with chemotherapy "knocked him down a bit," said King. At one point several years ago, he quit treatment, but then changed his mind.
"He decided to go back and pursue the chemo and finish out some of the end-of-life things before he passed," said King, an artist and trainer at Curves gym. "He had led a busy active life and he was not able to enjoy it anymore."
In addition to selling his RVs, boats and other "toys," he contacted Compassion & Choices.
"He was very private about it," said King, who found a stack of papers on his desk one day.
"I was really kind of selfish and wondered how it would affect the rest of us," she said. "I guess it surprised me. But we are all proud of him. This meant a lot to him."
The supreme court challenge also includes five other Montana families of people who wanted aid in dying and could not get it.
Richard Gottshalk, a University of Montana philosophy professor, faced both physical and emotional pain "of stunning magnitude," according to his wife, Doris Fischer. In court papers, she said he was haunted by an awareness that his body was becoming rigid -- a feeling of being "chained to the bed" or "in prison."
Dying Recount Pain and Indignity
His wife said he suffered panic attacks and claustrophobia, believing he was suffocating as his breath shortened. Gottshalk eventually succumbed on day four after receiving a morphine drip for severe muscle spasms and difficulty swallowing.
The plaintiffs argue that in terminal cases, pain medications often don't work. Bill Clarke, whose friend Janet Murdock is dying of ovarian cancer at 67, will testify that her health is "hopeless and dismal."
"She tried to hasten death by stopping eating and drinking, but dehydration causes mouth and lips intolerable pain," Clarke told Missoulian.com.
"The artificial wetting aids don't work, or she's allegoric to them, and she can't take morphine -- she becomes so demented," Clarke said. "So she resumes taking water, but even small amounts delay death."
If the challenge is upheld, the Montana legislature is poised to follow enactment of safeguards and protections that are in place in Oregon, requiring two doctors and a psychiatric evaluation, if deemed necessary.
The patient must make the request for end-of-life medications twice orally and once in writing and have been diagnosed as having only six months left to live.
According to a report from the Oregon Department of Human Services, 88 prescriptions were ordered and only 54 were used in 2008. A total of 441 terminally ill patients have taken their lives in the 11 years since the state's Death With Dignity law was enacted.
About 98 percent of the people who took advantage of the law were in hospice; nearly 82 percent were dying of cancer, Lou Gehrig's disease or chronic obstructive pulmonary disease, according to state and independent studies compiled by Compassion & Choices.
"I do think that the Oregon model is well-regarded," said Steve Hopcraft, a spokesman for Compassion & Choices. "Every single independent study says it's working well and none of the slippery slope arguments about killing the poor and the disabled. It really hasn't happened."
But Rita Marker, one of Montana's attorneys and the executive director of the International Task Force on Euthanasia and Assisted Suicide, said the Oregon law is a "terrible model," one that asks doctors to document compliance with regulations "after the fact."
"There is such lack of transparency that it makes its statistics unreliable," she said."The actual statistics are questionable at best. The state has no way of knowing if it's accurate information."
Oregon Law Is No Model
"The way it works, it's like 'Let's take all the patrol cars off the highway in California and let people tell us if they follow the traffic rules.' How many people will say I was going 85 and I had three martinis?" Marker said.
According to Marker, the Oregon law "says nothing about suffering."
"When one transforms the crime of assisted suicide to medical treatment, it changes everything," she told ABCNews.com. "It's one more treatment available to the patient at the end of life, as good as chemotherapy or hospice."
The danger with that, Marker said, is that because assisted is less expensive than the other treatments, it would be more attractive to insurance companies.
That's what Barbara Wagner, a 64-year old Oregon woman, said happened to her. In 2008 she said she was denied $4,000-a-month treatment for her lung cancer, but told by the state health insurance company that she would be reimbursed for a $50 physician-assisted death.
"It was horrible," Wagner, who has since died, told ABCNews.com. "I got a letter in the mail that basically said if you want to take the pills, we will help you get that from the doctor and we will stand there and watch you die. But we won't give you the medication to live."
Critics were up in arms over the indignity of her unsigned rejection letter. Even those who support Oregon's law were upset.
Marker said because assisted suicide is cheaper, dying patients are encouraged to end their lives. So, too, might family members instill a sense of guilt in the terminally ill.
"This equal treatment leads to the subtle and unintended expectation of a course to consider because it makes it easier on the family," she said. "It's not just a political matter, it's psychological and familial."
Clay Baxter, whose father is immortalized in this Supreme Court challenge, argues that good legislation in a Montana Death With Dignity Law could safeguard against that kind of problem.
And his father's slow, painful death is a reminder of the need for giving the dying more choice from their physicians, he said.
"Personally, I don't think I could do it," said the 52-year-old who works in information technology at a North Dakota hospital. "But I haven't walked a mile in his shoes and lived year after year with this. How much can you take?"
His sister, Roberta King, said she agrees.
"The lawsuit was one of the things my father was passionate about in the end," she said. "He wanted to stay alive to get it done."
"I got involved because I knew how much it meant to my dad," King said.
"Everybody should have the option," she said. "I wished my father had had the option -- the comfort of being able to have some control. That was what bothered him the most."