Daughter Hails Montana's Right-to-Die Ruling

Montana becomes third state to allow physicians to administer death drugs.

January 6, 2010, 4:18 PM

Jan. 6, 2010— -- Robert Baxter, an avid outdoorsman, couldn't hold on long enough to see the legal victory that he hoped would allow him and 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 in November 2008 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."

Baxter's death in December of that year set in motion an appeal to the Montana Supreme Court to uphold the right for the dying to seek help ending their lives -- a battle that was won last week on New Year's Eve.

The Supreme Court ruled 5-2 for the legal right to assisted suicide, making Montana the third state that gives physicians the freedom to prescribe drugs to mentally competent, terminally ill patients without fear of prosecution. No appeal is now possible.

"I think my father would be happy that somebody else might be able to benefit from this," King told ABCNews.com after the court ruling. "He was pretty miserable."

The Baxter family had been waiting for the state high court's ruling after a lower court said constitutional rights to privacy and dignity protect the right to die.

Advocates expected the high court to uphold that ruling because of its historic support of individualism.

Those who drafted the state's constitution, which was adopted in 1972, at the height of a privacy movement that spread West after the turbulent 1960s, wrote that "the dignity of the human being is inviolable."

The state's supreme court did not take a stand on whether the right is a constitutional one, leaving that to lawmakers.

King expressed disappointment that the court did not go far enough.

"They said the [right to die] didn't have anything to do with them," she said.

One of the other plaintiffs was Compassion & Choices, a national group that advocates to protect and to expand the rights of the terminally ill. Other human rights organizations and 31 Montana state legislators also supported the suit.

Right-to-Die Approved in Montana

"The Montana Supreme Court has determined that this is a choice that state law entrusts to Montana patients, not to the government," Compassion & Choices legal director Kathryn Tucker told The Associated Press. "Montanans trapped in an unbearable dying process deserve, and will now have, this end-of-life choice."

The supreme court, pointing to the legislature's own policy-making, ruled that assisted suicide is an acceptable defense to any homicide charges against the doctor.

"In physician aid in dying, the patient, not the physician, commits the final death-causing act by self-administering a lethal dose of medicine," Justice William Leaphart wrote for the court.

"Until the public policy is changed by the democratic process, it should be recognized and enforced by the courts," wrote Justice Jim Rice for the minority.

"In my view, the court's conclusion is without support, without clear reason, and without moral force," he wrote.

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.

The case, Baxter vs. Montana, was challenged by the state, which argued the constitution conferred no right to aid in ending one's life.

The state also cited high rates of suicide in Montana and limited access to health care in more rural parts of the state, a landscape that it said would encourage assisted deaths.

The defendants also included ethical groups, who argued that legalizing assisted suicide would open the door to euthanasia, particularly for the old and disabled.

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 live 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 on 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 included five other Montana families who wanted aid in dying and could not access that choice.

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."

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."

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 argued that in terminal cases, pain medications often don't work. Bill Clarke, whose friend Janet Murdock is dying of ovarian cancer at 67, testified 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. So she resumes taking water, but even small amounts delay death."

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 only have 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 taking 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."

"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."

Clay Baxter, whose father is immortalized in this Supreme Court decision, argues that his father's slow, painful death is a reminder of the need for giving the dying more choice from their physicians.

"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."