MISSOULA — One day after a Missoula County District Court judge ordered a hysterectomy for a woman with cancer, the Montana Supreme Court stepped in and halted the surgery to allow an appeal.

Last Tuesday, Judge Karen Townsend found that the woman known as L.K. was not mentally competent and ordered that the surgery should be performed on Thursday.

The next day, a public defender filed an emergency petition on L.K.’s behalf.

“Tomorrow’s impending involuntary removal of L.K.’s reproductive organs both establishes that the district court is proceeding under a mistake of law and is causing a gross injustice and involves constitutional dignity and religious freedom issues of statewide importance,” the public defender’s office wrote on L.K.’s behalf.

The Supreme Court issued an order the same day providing for an expedited appeal within 30 days.

The emergency petition decision described L.K. as a deeply religious woman who wants children, and balked at the hysterectomy on both those grounds.

Her religion wasn’t specified, but a psychiatrist and a physician from the Montana State Hospital termed her religious beliefs — including one that God had cured her — delusional.

The physician testified at a March 1 hearing that without treatment, L.K.’s cancer could kill her within three years. The physician said that L.K.’s “religious delusions” interfered with her ability to make reasoned decisions about her care, and that L.K. didn’t understand that she might die without the surgery, according to the petition.

“L.K. then testified on her own behalf that she did understand that she had been diagnosed with cancer and that she did understand the risks of dying if she did not have the hysterectomy procedure,” the petition said.

She also said that she might change her mind later about following her doctors’ recommendations.

“L.K.’s dignity and bodily integrity are at stake and,” the petition argued, “ ... under the Montana Constitution her dignity is inviolable, including when her life or health is potentially at risk.”

Such cases present thorny issues for legal experts and medical ethicists. Decisions turn on the degree of competence and the severity of the medical issue.

“The more a disease or a problem for an adult is life-threatening, the more likely it is that treatment is compelled if the person is mentally impaired,” said Arthur L. Caplan, who heads the Center for Bioethics at the University of Pennsylvania.

“Normally, we don’t force treatment on adults. Competent adults can refuse even lifesaving treatments on religious terms,” he said. “The challenge is to establish that they truly are incompetent and that they really do comprehend the risk posed to their life.”

Then there are degrees, so to speak, of religion, said John Stone of Creighton University’s Center for Health Policy and Ethics. People with well-established religious objections to medical treatments — say Jehovah’s Witnesses who refuse blood transfusions, even lifesaving ones – generally see those requests honored, he said.

However, courts have forced minors who are Jehovah’s Witnesses to have transfusions, said Stone, who practiced cardiology in Missoula and co-founded the Institute of Medicine and Humanities, a joint program of the University of Montana and St. Patrick Hospital.

Things get more problematic with what he called the “marginal cases — people who are Satan worshippers. People who play with reptiles. ... What the heck do we make of these people who have these weird views?”

Finally, Stone said, there’s the issue of the level of expertise of those who testify as to L.K.’s incompetence.

“What was the range of knowledge of the person who assessed her regarding any of the range of religious views and how that reflects on capacity?” That question, he said, likely will be part of continued legal maneuvers.

Stacey Anderson, a spokeswoman for Planned Parenthood of Montana, said the case raises unsettling questions.

“The primary one is when the court starts ordering any sort of health care, it opens up the door for the slippery slope argument,” she said. “... Government intrusion into very private decisions is troubling.”

Anderson specified that she’s not familiar with this particular case.

“But in other states, when a woman doesn’t comply with what people think is best for her, that’s frequently the route they go — to get someone declared incompetent,” she said.

“And that’s troubling.”

Both Greg Hood, the public defender, and Deputy Missoula County Attorney Cathleen Sohlberg declined to discuss specifics of the case.

The Supreme Court’s order gives the public defender 30 days to appeal the District Court order; then the county attorney’s office will respond.

“L.K. will argue on appeal that the district court erred in determining that she is an incapacitated person with respect to this decision,” according to the motion seeking the Supreme Court stay, “and that the district court’s authorization of an involuntary hysterectomy violated L.K.’s constitutional rights to personal autonomy, dignity and religious freedom.”

Reporter Gwen Florio: 406-523-5268 or gwen.florio@missoulian.com

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