IN THE SUPREME COURT OF THE STATE OF MONTANA No.
ROBERT BAXTER, STEVEN ) STOELB, STEPHEN SPECKHART, ) M.D., C. PAUL LOEHNEN, M.D., ) LAR AUTIO, M.D., GEORGE RISI, )
JR., M.D., and COMPASSION & )
) ) ) ) ) ) ) )
Defendants and Appellants. )
Plaintiffs and Appellees,
STATE OF MONTANA and STEVE BULLOCK,
AMICUS CURIAE BRIEF OF COALITION OF 28 BI-PARTISAN MONTANA LEGISLATORS
IN SUPPORT OF DEFENDANTS/APPELLANTS 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) email@example.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) firstname.lastname@example.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) email@example.com
Counsel for Plaintiffs/Appellees
Steve Bullock Attorney General Anthony Johnstone Solicitor
Assistant Attorney General PO Box 201401
Helena, MT 59620-1401 firstname.lastname@example.org email@example.com
Counsel for Defendants/Appellants
TABLE OF CONTENTS
TABLE OF CITATIONS ii
STATEMENT OF ISSUES :PRESENTED FOR REVIEW 1
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 1
STATEMENT OF THE STANDARD OF REVIEW 1
SUMMARY OF ARGUMENT 1
1. THE DECISION TO, CREATE A "RIGHT TO DIE" RESTS WITH THE
LEGISLATURE-NOT A DISTRICT COURT 2
II. THE DISTRICT COURT DIVERGED FROM THE UNANIMITY OF
DECISIONS HOLDING THERE IS NO "RIGHT TO DIE" 4
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 5
B. Both the USSC.<lnd the Ninth Circuit have declared Planned
Parenthood v. Casey inapplicable in this context 12
III. MONTANA'S COMPELLING INTERESTS CANNOT BE
A. These compelling interests are embedded in Montana's history and
B. These compelling interests are narrowly tailored to protect the
vulnerable and disabled 17
TABLE OF CITATIONS
Armstrong v. State, 1999 MT 261, 296 Mont. 361 (Mont. 1999) 6, 14
Baxter v. State, 2008 Mont. Dist. LEXIS 482 (Mont. 1st Jud. Dist. Ct. Dec. 5,
2008) 5, 6, 9, 12, 13,20
Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995) 13, 14, 15
Cruzan v. Dir., Mo. Dep 't o/Health, 497 U.S. 261 (1990) 13
Donaldson v. Lungren, 2 Cal. App. 4th 1614 (Ca. Ct. App. 1992) 4,8,9, 10
In re Joseph G., 34 Cal. 3d 429 (Cal. 1983) 11
Krischer v. McIver, 697 So.2d 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) 11
Vacco v. Quill, 521 U.S. 793 (1997) 2, 13
Von Holden v. Chapman, 87 A.D.2d 66 (N.Y. 1982) 11
Washington v. Glucksberg, 521 U.S. 702 (1997) 3, 12, 13, 15, 16, 17
Woods v. Kentucky, 142 S.W.3d 24 (Ken. 2004) 11
Dakota Territory (2009), available at
http://en.wikipedia.org/wiki/Dakota_Territory (last visited Mar. 2, 2009) 16
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.
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, wellsupported 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
I. 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 I-but
I See, e.g., Vacca v. Quill, 521 U.S. 793, 807 (1997) ("But our assumption of a right to refuse treatment was grounded not, as the Court of Appeals supposed, on
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
For example, the Alaska Supreme Court has stated that the issues of assisted
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. McIver, 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 U.S. 702 (1997).
Further, a California appellate court has concluded:
We realize that time is critical to [the plaintiff], but the legal and philosophical problems posed by his predicament are a legislative matter rather than a judicial one.
Donaldson v. Lungren, 2 Cal. App. 4th 1614, 1623 (Ca. Ct. App. 1992).
Thus, it is not for a court to instruct the legislature to implement rights, or to
direct it to implement safeguards to prevent the inherent abuses that stem from
court-created rights. That is purely the legislature's decision.
The decision of whether our citizens have a "right to die" rests with the
legislature, and not a court. ' And then only after a full analysis of not only the law,
but also the social, political, and moral concerns that have been acknowledged as
inherent in the assisted suicide debate. See Parts II and III, infra, for an
examination of these concerns and the compelling state interests acknowledged by
state and federal courts.
The district court decision endangers our citizens-and our most vulnerable
citizens at that-without so much as even contemplating the potential abuses and
social harms that may result. That is truly an analysis that should be left for the
II. 'THE DISTRICT COURT DIVERGED FROM THE UNANIMITY OF DECISIONS HOLDING THERE IS NO "RIGHT TO DIE"
"[N]o court of final jurisdiction has determined that an individual has a right,
under either federal or state constitutional protections, to 'physician-assisted
suicide .... '" Baxter v. State, 2008 Mont. Dist. LEXIS 482, *8 (Mont. 1st Jud. Dist.
Ct. Dec. 5,2008). Yet the district court decided to unilaterally diverge from this
unanimity of federal and state court decisions, without a solid basis for doing so.
This Court should not follow suit, but instead give proper weight to the juridical
unanimity finding that 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
The district court cited three states which have explicit rights to privacy in
their state constitutions: Alaska, Florida, and California. But its dismissal of
assisted suicide cases litigated in these states was based solely on the fact that these
states do not also possess "dignity" clauses. However, dignity language was
encompassed within those court decisions and the privacy rights protected in those
state constitutions have been recognized as broader than those protected under the
federal constitution-and thus directly applicable in Montana.
For example, Alaska, like Montana, has a "tradition of respect for individual
freedom." Sampson, 31 P.3d 88, 93. Further, while Montana has a dignity clause
in addition to its privacy clause, Alaska has a separate liberty right in addition to its
privacy right. Sampson, 31 P .3d at 91. In Sampson v. Alaska, the Alaska Supreme
Court was asked to determine whether there was a right to assisted suicide under
the constitutional protections of privacy, liberty, and equal protection. Just as the
physicians here challenged the Montana homicide statutes under the constitutional principles of privacy, dignity, and equal protection, the plaintiffs in Alaska challenged under the principles of privacy, liberty, and equal protection. ld. Thus, any conclusion that the Alaska case does not apply because Montana has an additional clause in play is an inapposite parsing of the Alaska decision. See Baxter, 2008 Mont. Dist. LEXIS 482 at *25.
In Sampson, the court began its analysis by "looking to the relevant history of assisted suicide" in Alaska, because "the history and tradition of a right in Alaska are important because they help to determine whether the right falls within the intention and spirit of [its] constitution." Sampson, 31 P.3d at 92, 94. The court noted that Alaska law had always prohibited all forms of assisted suicide, and that those cases involving personal autonomy in Alaska-including reproductive rights cases (cases similar to Armstrong v. State, 1999 MT 261, 296 Mont. 361 (Mont. 1 999))-had not even, remotely hinted at any historical or legal support for the proposition that the right of personal autonomy includes the right to assisted suicide. Sampson, 31 P.3d at 92, 94. The court stated that use of a reproductive rights case in the assisted suicide context overstates the scope of a discussion involving reproductive rights. ld. at 95. Thus, the court rejected a right to physician-assisted suicide under both the privacy and liberty clauses of the Alaska constitution. ld.
The court in Alaska went on to evaluate the state's interests in preserving human life, protecting vulnerable persons, protecting the integrity of the medical profession, regulating dangerous substances, and preventing suicide=concluding that the state's prohibition of assisted suicide bore a close and substantial relationship to the state's interests, and particularly to the interest of protecting vulnerable persons. Id. at 96-97, 100. The court noted that, by arguing that the assisted suicide right should be restricted to mentally competent, terminally-ill patients capable of self-administering the lethal drugs, the plaintiffs "acknowledge[ d] both that assisted suicide generally poses a significant risk of harm to potentially vulnerable persons and that a corresponding need exists for state regulation except in the narrow class of cases that they view to be relatively risk-free." Id. at 96. The court saw that vulnerable persons are put at incredible risk when assisted suicide is allowed.
The court also noted that, contrary to the district court's opinion here, "there appears to be no consensus within the medical community about the adequacy of protective measures" to protect the vulnerable. Id. at 97.
The district court below ignored almost the entirety of the Alaska Supreme Court decision. It did the same with the Florida Supreme Court's decision in Krischer v. McIver. The issue before that court was whether the plaintiff had a right to have a physician assist him in committing suicide under Florida's privacy
guarantee-again, an explicit constitutional guarantee that is interpreted more
broadly than that encompassed in the federal constitution. Krischer, 697 So.2d at
100. The court began by stating that it was clear that the public policy of the state
(i.e., part of the state's history and tradition) as expressed by the legislature was
opposed to assisted suicide. ld. After citing the vast number of states
disapproving of assisted suicide and examining Donaldson v. Lungren, discussed
below, and the report When Death is Sought, discussed in Part III.B., infra, the
court turned to the state's interests in the preservation of life, the protection of
innocent parties, the prevention of suicide, and the maintenance of the ethical
integrity of the medical profession. ld. at 100-02.
The Florida Supreme Court had, in the past, held that such interests were not
sufficiently compelling to override a patient's right to forego life-sustaining
medical treatment. ld. at 102. However, the court-as all other major courts to
consider the issue have done-cacknowledged the distinction between foregoing
medical treatment and affirmatively causing death. ld. The court concluded that
the state's "unqualified interest in the preservation of life," as well as its interests
in preventing suicide and maintaining the integrity of the medical profession.'
2 The court noted that "the leading health care organizations"-such as the American Medical Association-"are unanimous in their opposition to legalizing assisted suicide," thus supporting the state's interest in protecting the medical profession. Krischer, 697 So.2d at 103.
"clearly" outweighed the plaintiff s desire for assistance in committing suicide. ld. at 103.
Finally, the district court below briefly mentioned the California case Donaldson v. Lungren. While it improperly distinguished this case as well, it did acknowledge that that court declined to "expand" the state's privacy right to encompass assisted suicide, effectively acknowledging that any decision allowing assisted suicide would be an "expansion" and not an "interpretation" of rights. Baxter, 2008 Mont. Dist. LEXIS 482 at *14-15.
In Donaldson, the plaintiff argued that the state had no logical, secular motive to demand his continued existence, given his medical condition and prognosis. Donaldson, 2 Cal. App. 4th at 1619. This claim-ultimately rejected by the court in California-is much like a statement found in the district court's opinion here, stating that "it is difficult to imagine a compelling interest in preserving the life of an individual who is suffering pain and the indignity of his disease; whose life is going to end within a relatively short period of time .... " Baxter, 2008 Mont. Dist. LEXIS 482 at *30. Such a conclusion is inherently discriminatory, stating in effect that the state has no compelling interest in saving the life of a terminally-ill patient. It devalues the lives of the terminally-ill.
This is an action that the Donaldson court refused to take. After enunciating the difference between the withdrawal of life-sustaining medication and the
affirmative action of killing a patient, the court stated that "[nJo statute or judicial
opinion countenances Donaldson's decision to consent to be murdered or to
commit suicide with the assistance of others." Donaldson, 2 Cal. App. 4th at 1622.
The decision in California also counters any claim that the state's interests are too
general to counteract individual privacy rights. The California court stated:
It is one thing to take one's own life, but quite another to allow a third person assisting in that suicide to be immune from investigation by the coroner or law enforcement agencies.
In such a case, the state has a legitimate competing interest in protecting society against such abuses. This interest is more significant than merely the abstract interest in preserving life no matter what the quality of life is. Instead, it is the interest of the state to maintain social order through enforcement of the criminal law and to protect the lives of those who wish to live no matter what their circumstances. This interest overrides any interest Donaldson possesses in ending his life through assistance of a third person in violation of the state's penal laws. We cannot expand the nature of Donaldson's right of privacy to provide a protective shield for third persons who end his life ....
The state's interest must prevail.
ld. at 1622-23 (emphasis added).
Not only did the district court below ignore the fact that such penallaws are
necessary (i.e., narrowly tailored) to prevent such abuses, but it expanded an
individual's right to privacy to include the acting third person. Even if this Court
concluded that a person has a right to die, that right does not automatically include
the right to insulate third parties from prosecution. Rights flow to the individualnot to the individual and whomever that individual decides he wants to protect.
While these are the three prevailing cases examining-and rejecting-the so-called "right" to assisted suicide, other state supreme courts have also issued opinions touching on similar claims. See, e.g., Woods v. Kentucky, 142 S.W.3d 24, 31 n.9 (Ken. 2004) ("The so-called 'right to die' does not extend to euthanasia or mercy killing, or to suicide or assisted suicide.") (citations omitted); In re Joseph G., 34 Cal. 3d 429,437 (Cal. 1983) ("[A]1though the evidence indicates that one who attempts suicide is suffering from mental disease, there is not a hint of such evidence with respect to the aider and abettor. ... "); Von Holden v. Chapman, 87 A.D.2d 66, 68-69 (N.Y. 1982) ("[I]t is self-evident that the right to privacy does not include the right to commit suicide .... The preservation of life has a high social value in our culture and suicide is deemed a 'grave public wrong.' Even a perfunctory perusal of the case law of our sister States indicates the universality of that principle.") (citations omitted); see also Sanderson v. Colorado, 12 P.3d 851, 853 (Co. Ct. App. 2000) ("There have been other constitutional challenges to laws that criminalize assisted suicide, all of which have been unsuccessful.").
, The conclusion is simple. Not only is it true that "[n]o court of final jurisdiction has determined that an individual has a right, under either federal or state constitutional protections, to 'physician-assisted suicide, '" but courts in states
with broad privacy and liberty rights have unanimously concluded that there is
no right to assisted suicide and that state interests prevail. The district court
improperly ignored these decisions,
B. Both the USSC and the Ninth Circuit have declared Planned Parenthood v. Casey inapplicable in this context
The district court below stated that the "logical extension of the meaning of
'the most intimate and personal choices a person makes in a lifetime' stated by the
Casey Court would apply to perhaps the most intimate and personal choice of all:
the choice of when and how to end one's life." See Baxter, 2008 Mont. Dist.
LEXIS 482 at *25. But both the USSC itself as well as the Ninth Circuit have
rejected such an application of Casey.
In Washington v. Glueksberg, the USSC explicitly rejected the plaintiffs'
claims that Casey indicated a right to assisted suicide, and reversed the Ninth
Circuit en bane panel's use of Casey in such a way. Glueksberg, 521 U.S. 702,
726-28 (1997). Specifically, the USSC stated:
That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, and Casey did not suggest otherwise.
ld. atJ27-28 (citation omitted) (emphasis added).
If the USSC refused to apply its own decision in Casey to its own
interpretation of the federal constitution, it is likewise improper to apply Casey
here-especially when ignoring federal precedent directly on point. When
Glucksberg and Vacco3 are examined, it is clear that the USSC sees no right to
assisted suicide under the federal constitution, and that Casey does not in any way
implicate such a right.
Judge Noonan explained this clearly in Compassion in Dying v. Washington,
49 F.3d 586 (9th Cir. 1995), the original Ninth Circuit decision upholding
Washington's assisted suicide prohibition. While the Ninth Circuit later reversed
Judge Noonan's decision en bane, the USSC then reversed the en bane panel-
meaning that Judge Noonan had it right. In his decision, he criticized the lower
court for applying Casey out of context, while "ignor[ing] the far more relevant
part of the opinion in Cruzan," a case that was related to the end of life. ld. at 590-
91. He stated,
The language taken from Casey, on which the district court pitched its principle argument, should not be removed from the context in which it was uttered .... It is, commonly accounted an error to lift sentences or even paragraphs out of one context and insert the abstracted thought into a wholly different context. To take three sentences out of an opinion over thirty pages in length dealing with the highly charged
3 In examining the physicians' equal protection claim, the district court here utilized the USSC decision in Vacco, "[n]otwithstanding the broader equal protection rights under Montana law." See Baxter, 2008 Mont. Dist. LEXIS 482 at *19. But it used the opposite rationale when rejecting Glucksberg; because Montana has a broader right to privacy and dignity than the federal constitution, Glucksberg did not apply. This utilization of some precedent, while rejecting other precedent, calls into question the way in which the district court utilized prior USSC decisions.
subject of abortion and to find these sentences "almost prescriptive" in ruling on a statute proscribing the promotion of suicide is to make an enormous leap, to do violence to the context, and to ignore the differences between the regulation of reproduction and the prevention of the promotion of killing a patient at his or her request.
Id. at 590 (emphasis added). He added that the extrapolation from Casey was an
unwarranted extension of abortion jurisprudence, often unique, into a very
different field. Id. at 591.
Therefore, it is error for a court to utilize Casey in this context, especially
while ignoring USSC precedent directly on point."
Judge Noonan also criticized the lower court because-like the district court
opinion here-it lacked foundation in recent precedent and in the traditions of our
nation. Id. (stating "a federal court should not invent a constitutional right
unknown to the past and antithetical to the defense of human life that has been a
chief responsibility of our constitutional government"). As this Court is aware, the
USSC went on to use exactlythose historical foundations in upholding
Washington's law. Further, Judge Noonan criticized the lower court for-again
like the district court opinion-invalidating the Washington statute without
4 The same could be said of the use of Armstrong-a case inherently centered around reproductive rights-in a case about suicide. Similarly, the Alaska Supreme Court in Sampson refused to import its abortion decisions to the assisted suicide context. See generally Sampson, 31 P.3d 88.
adequate consideration of Washington's interests, which he determined
"outweiglt[ed] any alleged liberty of suicide." ld. (emphasis added).
III. MONTANA'S COMPELLING INTERESTS CANNOT BE MITIGATED
The district court acknowledged that Montana's interests in the preservation
of human life, the protection of vulnerable groups from potential abuses, and the
protection of the integrity of the medical profession are compelling interests. Its
only contention was that the State's homicide laws are not narrowly tailored. Not
only does this conclusion vary from the state and federal precedent examined
above, but it also ignores the fact that these compelling state interests are
embedded in Montana's history and tradition, and that assisted suicide must be
prohibited in order to truly protect the vulnerable and disabled citizens of the State.
A. These compelling interests are embedded in Montana's history and tradition
It cannot be denied that, for over 700 years, the Anglo-American tradition
has disapproved of or punished suicides and assisted suicides--even the district
court here admitted as much. The USSC in Glucksberg provided an in-depth
examination of our nation's history and tradition in this regard, stating that almost
every, state as well as almost every western democracy criminalizes assisted
suicide. See Glucksberg, 521 U.S. at 710-19. So nationally-speaking, the
criminalization of assisted suicide is embedded in our nation's history and tradition. As one state in this nation, Montana is a part of this history and tradition.
But more importantly, Montana has explicitly rejected assisted suicide since at least 1877. In that year, the Dakota Territory-which included much of presentday Montana and Wyoming-adopted the Field Penal Code, which prohibited aiding a suicide and "furnishing another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life." Glucksberg, 521 U.S. at 715; Dakota Territory (2009), available at http://en.wikipedia.org/wiki/Dakota_Territory (last visited Mar. 2, 2009).
While the district court cited Montanans "historical abhorrence and distrust of excessive governmental interference in their personal lives," it failed to even mention the history and tradition of Montana with regard to assisted suicide. A court cannot simply examine the history of a state in one area, while disregarding it in another area, without calling into question the credibility of the subsequent decision.
The fact remains that, even before Montana was a state, the people of Montana exemplified an "abhorrence" to assisted suicide and the provision of poison to aid another person in dying. This history and tradition must be taken into account when examining the constitution of the State. Because of this long-
standing history and tradition, the district court was incorrect in reading into the
constitution a right to assisted suicide.
B. These compelling interests are narrowly tailored to protect the vulnerable and disabled
In order to truly and adequately protect the vulnerable and disabled citizens
of Montana, assisted suicide must be strictly prohibited. In other words, the
homicide statutes here are indeed narrowly tailored to protect such citizens. This
was the conclusion of the New York State Task Force on Life and the Law
[hereinafter "Task Force,,].5 This "blue-ribbon" commission, composed of doctors,
ethicists, lawyers, religious leaders, and interested laymen-some of which
personally advocate assisted suicide-was convened to study issues raised by
medical advances and to make public policy recommendations. See Task Force,
When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context vii
Despite the differing ethical views of the members, the Task Force examined
end-of-life issues for over ten years and unanimously recommended that the New
York law prohibiting assisted suicide not be changed, specifically because it would
5 Every major decision considering the "right" to assisted suicide since 1994 has weighed heavily the meticulous findings of the Task Force. See, e.g., Glucksberg, 521 U.S. at 711, 719, 729, 730-32, 733 n.23, 734; Sampson, 31 P.3d at 96-97; Krischer, 697 So.2d at 101, 103.
have disastrous effects on vulnerable population groups. ld. at vii, xiii, 120. For example, it concluded:
Assisted suicide would be profoundly dangerous for large segments of the population, especially for the ill and vulnerable and those "whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, or membership in a stigmatized group." ld. at vii-viii, ix, 120.
The dangers of assisted suicide far outweigh any possible benefits. ld. at ix, 120. "[A]ny effort to carve out exceptions to the prohibitions on assisted suicide or euthanasia would seriously undermine the state's interest in preventing suicide in the vast majority of cases .... The state's interest in protecting these patients outweighs any burden on individual autonomy that prohibitions on assisted suicide and euthanasia might entail." ld. at 73-74. In other words, the state's compelling interests control and cannot be mitigated.
Further, any proposed safeguards will be inadequate. ld. at xiii. "[T]he reality of existing medical practice in doctors' offices and hospitals across the state generally cannot match these expectations, however any guidelines or safeguards might be framed. These realities render legislation to legalize assisted suicide and euthanasia vulnerable to error and abuse for all members of society, not only for those who are disadvantaged." ld. at 120. Because assisted suicide would be practiced through the prism of social inequality and prejudice, the Task Force
found it "naive and unsupportable" to assume that any "safeguards" that are erected will be unaffected by the broader social and medical context in which they will operate. ld. at 125.
Finally, assisted suicide is uncontainable, and will inevitably slide toward euthanasia. ld. at xv. This risk of abuse is neither speculative nor distant. ld. at 134. "[A]ssisted suicide and euthanasia are closely linked; as experience in the Netherlands has shown, once assisted suicide is embraced, euthanasia will seem only a neater and simpler option to doctors and their patients." ld. at 145.
When the Task Force reevaluated its findings in 1997, it again recognized the following primary risks, among many others: the vulnerability of sociallymarginalized groups, the devaluation of the lives of the disabled, the arbitrariness of proposed limits, and the impossibility of developing effective regulation. Task Force, Supplement to Report 4-5 (April 1997). It concluded that "these profound dangers associated with legalizing physician-assisted suicide outweigh any benefits .... " ld. at 6.
These conclusions are directly in line with the way in which other courts have treated the states' compelling interests in protecting the vulnerable and disabled, such as the Alaska Supreme Court's detailed conclusion that vulnerable persons are put at incredible risk when assisted suicide is allowed. See Sampson, 31 P.3d at 97.
The court below did not examine the implications a "right" to assisted suicide would have on vulnerable population groups in Montana. It did not mention the Task Force's meticulous findings or any prior court precedent examining the effects of assisted suicide on vulnerable persons. It did not give any weight to the substantive evidence and findings that a state's compelling interests in protecting the vulnerable and preventing abuse absolutely cannot be mitigated. It merely concluded, without providing any support, that the State can enact safeguards. See Baxter, 2008 Mont. Dist. LEXIS 482 at *31, 33. As the Task Force found, "[t]his assumption is naive and unsupportable." Task Force at 125. And as the Alaska Supreme Court in Sampson noted, not even the medical . community can agree on the adequacy of protective measures. See Sampson, 31 P.3d at 97.
When these in-depth sources and decisions are examined, it is clear that the State's homicide statutes are indeed narrowly tailored to support its compelling interests and thwart the inherent dangers assisted suicide poses to vulnerable population groups.
Amici urge this Court to reverse the district court.
Metropoulos (B No. 3334) ead Counsel for Amicus Curiae Montana Legislators Gough, Shanahan, Johnson & Waterman, PLLP
33 S. Last Chance Gulch '
Helena, MT 59601
Mailee R. Smith*
Co-Counsel for Amicus Curiae Montana Legislators Americans United for Life
310 S. Peoria St., Suite 500
Chicago, IL 60607
* admitted pro hac vice
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Amicus Curiae Brief was mailed, postage fully prepaid thereon, on the otz-t:tay of April, 2009, to:
Kathryn L. Tucker
c/o Compassion and Choices PO Box 6404
Portland, OR 97228-6404
Mark S. Connell Connell Law Firm PO Box 9108
Missoula, MT 59807-9108
Steve Bullock Attorney General Anthony Johnstone Solicitor
Assistant Attorney General PO Box 201401
Helena, MT 59620-1404
Lead Counsel for Amici
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify that this amicus curiae brief is printed with a proportionately spaced Times New Roman text typeface of 14 points; is double-spaced except for footnotes and for quoted and indented material; and the word count calculated by Microsoft Word for Windows is not more than 5,000 words, excluding certificate of service and certificate of compliance.