Update on Euthanasia & Assisted Suicide Year 2010 Vol
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International Task Force Update on Euthanasia & Assisted Suicide Year 2010 Vol. 24, No. 3 Competing Montana bills Assisted-suicide group loses in Connecticut, planned for 2011 sets sights on Idaho attle lines are being set for Montana’s ompassion & Choices (C&C) and its legal director and chief litigator B lawmakers over the issue of doctor- C Kathryn Tucker have been persistently pushing their pro-assisted- assisted suicide. Two bills are currently be- suicide agenda in Connecticut since 1995. After three failed attempts to ing drafted, one to formally legalize assisted get the state legislature to pass bills legalizing assisted suicide, Tucker, suicide, the other to expressly prohibit it. along with two local doctors, turned to the Connecticut judiciary and filed Both are set to be introduced in January 2011 a lawsuit on October 7, 2009, challenging the state’s law banning assisted when the new legislative session begins. suicide—specifically, how the law applies to doctors who intentionally The need for an explicit assisted-suicide facilitate the suicides of their patients. The suit was Tucker’s attempt to statute became apparent after the Montana officially exclude “aid in dying” (C&C’s euphemism for doctor-assisted Supreme Court handed down its 2009 ruling suicide) from the legal definition of “assisted suicide.” She said it would in Baxter v. Montana . The high court heard be the model for future lawsuits in many other states with similar assisted- the case after the state appealed an earlier suicide laws. [ Hartford Courant , 10/7/09] ruling by District Court Judge Dorothy Blick et al. v. Connecticut McCarter. McCarter held that the Montana Connecticut’s law clearly defines the crime of assisted suicide. “A per- State Constitution guarantees the terminally son is guilty of manslaughter in the second degree when: (1) He recklessly ill the fundamental right to “die with dig- causes the death of another person; or (2) he intentionally causes or aids nity,” a right that includes assistance from a another person, other than by force, duress or deception, to commit sui- doctor who would be protected from crimi- cide.” [Conn. Gen. Stat. §53a-56(a)] But, according to the complaint C&C nal liability. [ Baxter v. Montana, Decision filed in Superior Court, the state’s assisted-suicide statute “does not pro- and Order, Cause No. ADV-2007-787, vide a valid statutory basis to prosecute any licensed physician for provid- Mont. 1st Jud. Dist. Ct., 12/5/08] ing aid in dying because the choice of a mentally competent terminally-ill But the state Supreme Court overturned individual for a peaceful death as an alternative to enduring a dying proc- McCarter’s decision that established a con- ess the patient finds unbearable does not constitute ‘suicide’…” [ Blick v. stitutional right to assisted suicide, and, in- Connecticut, Verified Complaint, 9/20/09, pp. 8-9] In other words, when a stead, put the legalization question in the terminally-ill patient intentionally takes lethal drugs prescribed by a doc- laps of state legislators. In a 5-2 decision, the tor, that patient is not committing “suicide,” so the prescribing doctor is high court ruled that no Montana statute not assisting a “suicide.” He is simply providing “aid in dying” and cannot expressly makes doctor-assisted suicide ille- be prosecuted under the assisted-suicide statute. gal or against public policy. [ Baxter v. Mon- Court ruling tana, DA 09-0051, 2009 MT 449, MT Sup.Ct., 12/31/09] But C&C’s slick attempt at verbal manipulation backfired. On June 1, 2010, Superior Court Judge Julia Aurigemma rejected C&C’s arguments Senator Greg Hinkle (R-Thompson Falls) and dismissed the case outright before the case was fully heard. Instead of wants to change that and is drafting the finding “aid in dying” distinct from assisted suicide as C&C argued, the Montana Patient Protection Act, a bill to judge ruled that the law banning assisted suicide “is aimed at precisely the make assisted suicide clearly illegal in the (continued on page 2) state. He recently wrote that his bill is based on the state’s policies to prevent escalating cases of elder abuse and suicide. Also in this Update: [Missoulian , 6/29/10] Proposed OR for-profit, assisted-suicide clinic Representative Dick Barrett (D-Missoula) wants to legalize assisted suicide explicitly. & other signs of the “slippery slope”. ............................. 3 He is drafting a bill based on Oregon’s law Final Exit Network tries billboard advertizing ..................... 3 that, he said, will protect doctors from crimi- Death in Europe: When laws no longer matter ................... 4 nal liability and professional sanctions. News briefs from home & abroad ...................................... 5 [Helena Independent Record, 7/9/10] ■ Update Year 2010—Vol. 24, No. 3 Page 2 Assisted-suicide advocates lose in Connecticut; set sights on Idaho , continued from page 1 situation presented by the plaintiffs [C&C]—aiding a ter- Idaho: C&C’s next targeted state minally ill patient, in unbearable pain, to end his or her Just a little more than three weeks after Judge own life—and precisely the situation in which physicians Aurigemma cut short any hope C&C had of adding Con- are most likely to participate.” “The statute in question, necticut to its list of conquered states, Tucker was busily [§53a-56], and the commentary to and legislative history of laying the groundwork for a major push to legalize doctor- the statute make it quite clear that assisting a suicide, even prescribed death in Idaho. Having recently moved to for humanitarian reasons, is a crime.” [ Blick v. Connecticut, Ketchum, Idaho, Tucker approached the issue as a profes- No. CV-09-5033392, Memorandum of Decision on Motion sional resident concerned about improving end-of-life care to Dismiss, at 13-14 (Conn. Super. Ct., June 1, 2010). and expanding the rights of terminally-ill patients. Her Hereafter cited as Blick .] strategy was three-pronged: (1) tell the public that they Furthermore, the judge held, have a right to choose “aid in dying” as an end-of-life care Not only is the text of §53a-56 devoid of any support option; (2) tell lawyers that Idaho has no law barring “aid for the plaintiffs’ interpretation of the term “suicide,” in dying”; and (3) tell physicians that, without an explicit but it also does not include any exception from prosecu- law prohibiting the practice, they are currently free to pre- tion for physicians who assist another individual to com- scribe intentionally lethal drugs so that patients can end mit suicide…. Instead, §53a-56 applies to every their lives—what most people call physician-assisted sui- “person… [who] intentionally causes or aids another cide. person, other than by force, duress or deception, to com- Over the summer months, Tucker blitzed the state. She mit suicide.” [ Blick , at 24] authored or co-authored articles published in the Coeur The legislative history of §53a-56… further supports d’Alene Press (6/27/10); the ACLU’s newsletter, Idaho Lib- the conclusion that the legislature intended the statute to erty (Spring/Summer 2010); and the Idaho State Bar’s pub- apply to physicians who assist a suicide, and intended the lication, The Advocate (August 2010). In addition, she ad- term “suicide” to include self-killing by those who are dressed patrons of the Ketchum Community Library suffering from unbearable terminal illness. [ Blick, at 25] (6/24/10); members of the Unity Church of North Idaho The fact that lawmakers intended the statute to ban doc- (6/27/10); and, most importantly, members of the Idaho tor-assisted suicide, the judge argued, can be seen in the leg- Medical Association (7/17/10). islature’s repeated rejection of multiple bills (in 1995, 1997, Her messages, however, were at best misleading. While and 2009) that would have amended §53a-56 “ to expressly it’s true that Idaho does not have a statute specifically stat- permit such assistance.” “If such assistance were already ing that assisted suicide is illegal, the practice is neverthe- permitted [as C&C contends],” the judge wrote, “there less prohibited under common law. According to Idaho would be no need to amend the statute.” [ Blick , at 14] Code §73-116, “The common law of England, so far as it is The judge also dismissed the case because C&C and co- not repugnant to, or inconsistent with, the constitution of the plaintiffs Drs. Gary Blick and Ronald Levine, were attempt- United States, in all cases not provided for in these com- ing to sue the state’s Division of Criminal Justice, the chief piled laws, is the rule of decision in all courts of this state.” state’s attorney, and thirteen state’s attorneys, an action pro- Tucker also claimed that Idaho’s doctors need only look hibited by the common law doctrine of sovereign immunity, to the neighboring states of Oregon, Washington, and Mon- which shields the state and its officials from lawsuits. tana—which allow “aid in dying”—for the appropriate Moreover, she ruled that the case “presents a nonjusticiable “standard of care” at the end of life. This standard of care, claim, one which must be decided by the Connecticut legis- established by these local communities, she said, is what lature, and not by the court.” [ Blick , at 21 & 26] should directly influence the standard of care in Idaho and Tucker’s reaction to defeat will be the standard accepted by Idaho courts. But this Tucker expressed both disappointment and indignation claim was refuted in a response to her address to the Idaho after the judge handed down her decision. “We haven’t had Medical Association (IMA) by Dr.