Brief Amicus Curiae in Robert Baxter versus State of Montana.

In its ruling in Baxter v. Montana, (1) the District Court ruled that physicians who assist patients' suicides are protected from liability under the State's homicide statute. (2) The Court mistakenly relied on Oregon as a laboratory in which legalized assisted suicide has been tested and its results scrutinized. The lack of transparency in implementation of Oregon's "Death with Dignity Act" (3) renders Oregon an unreliable laboratory for assessing its social, economic and medical experiment with assisted suicide. The Oregon law's requirements, often referred to as safeguards, give a false impression of patient protection.

The District Court failed to address the context in which assisted suicide would be carried out in Montana. The State already has the highest suicide rate in the nation, twice the national average. (4) So dire is the State's suicide rate that the legislature spends hundreds of thousands of dollars on suicide prevention programs. (5)

Montana's health care system, like that in all states, is under strain, setting the stage for assisted suicide becoming an acceptable, inexpensive method of health care cost containment. Furthermore, legalized assisted suicide can mask patient abuse and elder abuse.

Removing the time-tested barriers that protect patients by giving doctors the power to prescribe lethal drugs does not enhance patient privacy and dignity. Instead, it subjects patients to dangers that are uncontrollable and untraceable.

Argument

1. Lack of Transparency in Its Practice of Assisted Suicide Renders Oregon an Unreliable Laboratory for Assessing Assisted Suicide.

   In 1997, before Oregon's assisted-suicide law went into effect, the United States Supreme Court concluded in Glucksberg that "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide." (6) In her concurrence, Justice O'Connor noted the importance of "protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not be truly voluntary...." She wrote that the democratic process would strike the proper balance "in protecting those who might seek to end life mistakenly or under pressure." She said the task of striking that balance was to be left to the "'laboratory' of the States." (7)

   The District Court acknowledged that "the State has a compelling interest in preventing abuses stated by Justice O'Connor," but then dismissed the prospect of those abuses. The District Court mistakenly declared that "abuses can be controlled by state law," (8) citing the "numerous requirements to avoid such potential abuses" (9) in Oregon's law.

   Oregon's "laboratory" results are inconclusive, at best, since what takes place in that laboratory is shrouded in secrecy, precluding the possibility of knowing whether there are individuals whose lives have ended mistakenly or under pressure. In 2006, reflecting on that secrecy, Neil M. Gorsuch explained, "[W]hile Oregon is often touted as a 'laboratory' or 'experiment' for whether assisted suicide can be successfully legalized elsewhere in the United States, Oregon's regulations are crafted in ways that make reliable and relevant data and case descriptions difficult to obtain. Given this, it is unclear whether and to what extent Oregon's experiment, at least as currently structured, will ever be able to provide the sort of guidance needed and wanted by other jurisdictions considering whether to follow Oregon's lead." (10)

   1. Lack of evidence of abuse is not evidence that abuse has not occurred.

      Oregon's Death with Dignity Act changed medical practice in that State. It transformed the crime of assisted suicide into a medical treatment. Normally, medical treatments or interventions are subjected to intense scrutiny with meticulous attention paid to all aspects, including behavioral characteristics, before determining they are beneficial. That scrutiny entails careful examination of data, openness, and disclosure of any conflicts of interest. Failing to do so can skew results, rendering them misleading and dangerous. (11) The intense secrecy surrounding implementation of the Oregon law precludes any ability to objectively determine its impact.

      The Oregon law mandates that physicians report activities carried out under the Death with Dignity Act and that the State issue an annual report based on that data. (12) Oregon's annual official reports convey the notion that assisted suicide in the State has not resulted in any problems or abuses. However, information in those reports is questionable at best since it is based on self-reports by the same doctors who are carrying out assisted suicide.

      Ever since the Oregon law was implemented, the problematic nature of that self-reporting has been apparent. In its official summary for the first annual report, the state (using rather surprising language) noted: "For that matter the entire account could have been a cock-and-bull story. We assume, however, that physicians were their usual careful and accurate selves." (13) Furthermore, Oregon officials in charge of formulating annual reports have conceded "there's no way to know if additional deaths went unreported" because the Oregon Department of Human Services "has no regulatory authority or resources to ensure compliance with the law." (14) The Oregon Public Health Division charged with monitoring the law "does not collect the information it would need to effectively monitor the law and its actions and publications act as the defender of the law rather than as the protector of the welfare of terminally ill patients." (15)

      All that can be stated with certainty regarding the number of deaths, complications, and other data in official Oregon reports is that they reflect "reported" deaths, "reported" complications and other "reported" information. No one can say with certainty whether those figures are or are not accurate.

      But those annual reports, based on unverified and unverifiable data, are used as the basis for studies that claim to prove that the Oregon law is problem free.

   2. Studies of Oregon's law are misleading.

      In October 2007, just as the Washington State campaign to legalize assisted suicide was getting underway, a study published in the Journal of Medical Ethics (16) was receiving coverage in newspapers across the country. Articles about it quoted Compassion & Choices legal director Kathryn Tucker who called the study "the most pre-eminent examination" to date showing that assisted suicide is abuse and problem free, even for vulnerable people. (17) The data upon...