IN THE SUPREME COURT OF THE STATE OF MONTANA No. DA 09-0051 ROBERT BAXTER, STEVEN STOELB, STEPHEN SPECKHART, ) M.D., C. PAUL LOEHNEN, M.D., LAR AUTIO, M.D., GEORGE RISI, ) JR., M.D., and COMPASSION & CHOICES, Plaintiff's and Appellees, STATE OF MONTANA and ) ) ) ) ) v. ) ) STEVE BULLOCK, ) ») ) Defendants and Appellants. AMICUS CURIAE BRIEF OF COALITION OF 28 BI-PARTISAN MONTANA LEGISLATORS IN SUPPORT OF DEFENDANTS/APP! ANTS. AND REVERSAL OF THE DISTRICT COURT ON APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT LEWIS AND CLARK COUNTY, CAUSE NO. ADV-2007-787 JUDGE DOROTHY MCCARTER, Jon Metropoulos (Bar No. 3334) Gough, Shanahan, Johnson & Waterman, PLLP 33 S, Last Chance Gulch Helena, MT 59601 406.442.8560 (telephone) 406.442.8783 (facsimile) jonmetro@gsjw.com Mailee R. Smith* Americans United for Life 310 S. Peoria St., Suite 500 Chicago, IL, 60607 312.568.4700 (telephone) 312.568.4747 (facsimile) mailee.smith@aul.org *admitted pro hac vice Counsel for Amicus Curiae Montana LegislatorsMark S, Connell Connell Law Firm PO Box 9108 Missoula, MT 59807-9108 406.327.1517 (telephone) 406.327.1518 (facsimile) Kathryn L. Tucker c/o Compassion and Choices PO Box 6404 Portland, OR 97228-6404 503.525.1956 (telephone) 800.930.0535 (facsimile) ktucker@compassionandchoices.org Counsel for Plaintiffs/Appellees Steve Bullock Attorney General Anthony Johnstone Solicitor Jennifer Anders Assistant Attorney General PO Box 201401 Helena, MT 59620-1401 sbullock@mt.gov ajohnstone@mt.gov janders@mt.gov Counsel for Defendants/AppellantsTABLE OF CONTENTS, TABLE OF CITATIONS .... STATEMENT OF ISSUES PRESENTED FOR REVIEW .. STATEMENT OF THE CASE .. STATEMENT OF FACTS .... STATEMENT OF THE STANDARD OF REVIEW ..... SUMMARY OF ARGUMENT ARGUMENT .... a THE DECISION TO-CREATE A “RIGHT TO DIE” RESTS WITH THE LEGISLATURE—NOT A DISTRICT COURT . Il. | THE DISTRICT COURT DIVERGED FROM THE UNANIMITY OF DECISIONS HOLDING THERE IS NO “RIGHT TO DIE”..... A. Courts in states with broad constitutional provisions—similar to those in Montana—have unanimously concluded there is no right to assisted suicide and that state interests prevail. : B. Both the USSC.and the Ninth Circuit have declared Planned Parenthood v. Casey inapplicable in this context .. Ill. MONTANA’S COMPELLING INTERESTS CANNOT BE MITIGATED A. These compelling interests are embedded in Montana’s history and tradition ... 15 B, These compelling interests are narrowly tailored to protect the vulnerable and disabled .... CONCLUSIONTABLE OF CITATIONS CASES Armstrong v. State, 1999 MT 261, 296 Mont. 361 (Mont, 1999). =o 14 Baxter v. State, 2008 Mont. Dis 2008). .. :XIS 482 (Mont. Ist Jud. Dist. Ct. Dec. 5, .. 5, 6, 9, 12, 13, 20 Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995). Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990). .. Donaldson v. Lungren, 2 Cal. App. 4th 1614 (Ca. Ct. App. 1992). In re Joseph G., 34 Cal. 3d 429 (Cal. 1983). Krischer v. Melver, 697 So.24 97 (Fla. 1997). ... 3,7, 8,9, 17 Planned Parenthood v. Casey, 505 U.S. 833 (1992) 12, 13,14 Sampson v. Alaska, 31 P.3d 88 (Alaska 2001). .. 3, 5, 6, 7, 14, 17, 19, 20 Sanderson v. Colorado, 12 P.3d 851 (Co. Ct. App. 2000). Vacco v. Quill, 521 U.S. 793 (1997). Von Holden v. Chapman, 87 A.D.2d 66 (N.Y. 1982). Washington v. Glucksberg, 521 U.S. 702 (1997). .. .3, 12, 13, 15, 16, 17 Woods v. Kentucky, 142 $.W.3d 24 (Ken. 2004). ... we Tl OTHER SOURCES Dakota Territory (2009), available at http://en. wikipedia.org/wiki/Dakota_Territory (last visited Mar. 2, 2009). ...New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (1994). ... . 8, 17, 18, 19, 20 New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context: Supplement to Report (Supp. 1997). iiiSTATEMENT OF ISSUES PRESENTED FOR REVIEW. Amici adopt the statement of issues as presented by the State. STATEMENT OF THE CASE Amici adopt the statement of the case as presented by the State. STATEMENT OF FACTS Amici adopt the statement of facts as presented by the State. STATEMENT OF THE STANDARD OF REVIEW Amici adopt the standard of review as presented by the State. SUMMARY OF ARGUMENT Many states have already confronted claims that assisted suicide must be permitted under their state constitutions. To date, each court considering this issue has properly concluded that the social, political, and legal concerns inherent in assisted suicide demand a strict examination, debate, and decision by the state legislature—not the court. Furthermore, not a single court has concluded that assisted suicide is a protected privacy or liberty interest. Rather, each has concluded that strict prohibitions on assisted suicide are necessary—and narrowly tailored—to protect the disabled and other vulnerable population groups. These unanimous, well- supported findings should not and cannot be ignored. Not only did the court below fail to give proper weight to the unanimity of other state court decisions holdingthere is no right to assisted suicide, but it also applied federal abortion jurisprudence to the area of end-of-life decision-making—an action which the U.S. Supreme Court (USSC) as well as the Ninth Circuit have explicitly rejected. The unanimity of previous court decisions in rejecting a suicide right is buttressed by the fact that Montana possesses a history and tradition of prohibiting assisted suicide since at least 1877. Further, evidence demonstrates the devastating effects assisted suicide has on vulnerable population groups, such as the disabled— an examination that would have demonstrated that Montana’s homicide statutes are indeed narrowly tailored to protect its citizens from the abuse inherent in assisted suicide. ARGUMENT 1 THE DECISION TO CREATE A “RIGHT TO DIE” RESTS WITH THE LEGISLATURE—NOT A DISTRICT COURT The district court below stated that, over the last few decades, courts have increasingly “extended” the concepts of individual dignity, informed consent, and the right to bodily self-determination to end-of-life decisions. Not only is this statement not necessarily true—as U.S. Supreme Court (USSC) precedent indicates that the right to refuse life-sustaining treatment is not an “extension” of constitutional rights, but a traditional right already found in our Constitution'—but ' See, e.g., Vacco v. Quill, 52 U.S. 793, 807 (1997) (“But our assumption of a right to refuse treatment was grounded not, as the Court of Appeals supposed, on 2it ignores the conclusions common across courts examining assisted suicide claims. ‘Yes, courts have indicated a right to refuse life-sustaining treatment—but these decisions are predominately based upon common law and not state or federal constitutions, and no court has “extended” this right to include assisted suicide. Instead, that is an action that the courts have unanimously reserved for the state legislatures. For example, the Alaska Supreme Court has stated that the issues of assisted suicide: flow quickly away from questions of the law and lapse seamlessly into questions of morality, medical ethics, and contemporary social norms. Because the controversy surrounding physician-assisted suicide is so firmly rooted in questions of social policy, rather than constitutional tradition, it is a quintessentially legislative matter. Sampson v. Alaska, 31 P.3d 88, 98 (Alaska 2001). Likewise, the Florida Supreme Court has stated: [W]e have concluded that this case should not be decided on the basis of this Court’s own assessment of the weight of the competing moral arguments. By broadly construing the privacy amendment to include the right to assisted suicide, we would run the risk of arrogating to ourselves those powers to make social policy that as a constitutional matter belong only to the legislature. Krischer v. Melver, 697 So.2d 97, 104 (Fla. 1997). the proposition that patients have a general and abstract ‘right to hasten death,’ but on well established, traditional rights to bodily integrity and freedom from unwanted touching,”) (citations omitted). See also generally Washington v. Glucksberg, 521 US. 702 (1997).