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Montana To Permit Assisted Suicide
By SUSAN BRINKMANN, For The Bulletin
Montana’s highest court ruled on Dec. 31 that physicians who help terminally ill patients commit suicide cannot be prosecuted, thus making it the third state in the U.S. to allow the practice.
“We find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy,” said the state’s Supreme Court in the 4-3 decision. “We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient – not the physician — commits the final death-causing act by self-administering a lethal dose of medicine.”
The ruling on the case was brought by the euthanasia advocacy group, Compassion & Choices, formerly The Hemlock Society, and filed on behalf of Robert Baxter of Billings and four physicians.
Mr. Baxter, who was diagnosed with leukemia 12 years ago, died of lymphoma Dec. 5, 2008.
The court’s decision did not go as far as a previous ruling by District Judge Dorothy McCarter of Helena who not only ruled in Dec. 2008 that physician assisted suicide is not illegal under state law but extended constitutional protections to the procedure as well.
The state’s Supreme Court agreed with only one part of the ruling and chose to give no opinion on the greater constitutional question addressed by the lower court.
Dissenting justices said the court was reversing long-standing public policy. “Until the public policy is changed by the democratic process, it should be recognized and enforced by the courts,” wrote Justice Jim Rice for the minority. “In my view, the court’s conclusion is without support, without clear reason, and without moral force.”
Euthanasia advocates praised the decision.
“This case was about the right of mentally competent, terminally ill patients to request a prescription for medication from their doctors which they can ingest to bring about a peaceful death,” said Compassion & Choices Legal Director Kathryn Tucker, co-counsel to the plaintiffs/respondents. “Montanans trapped in an unbearable dying process deserve, and will now have, this end-of-life choice.”
Roberta King, daughter of the late Robert Baxter, said, “My father died without the peace and dignity he so dearly wanted for himself and others. He feared when he filed this lawsuit that he would not live long enough to benefit from it. I’m sure he would be deeply gratified that other terminally ill Montanans will have the choice and comfort that aid in dying affords them.”
Opponents of the decision, such as Alex Schadenburg of the Euthanasia Prevention Coalition, said that a “ bright spot” in the decision is that it does not give physicians the “right” to prescribe a lethal dose, “but only suggests that circumstances may exist to give them a defense to prosecution for homicide.”
Others warn of problems ahead.
Rita Marker, attorney and director of the International Task Force on Euthanasia and Assisted Suicide, a patient advocacy group, called the ruling “humpty-dumpty” law because the Court applied “verbal gymnastics” to the state’s living-will law in order to justify not prosecuting doctors who write lethal prescriptions.
According to Ms. Marker, the state’s Rights of the Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient’s end-of-life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive. Citing these guidelines, proponents successfully argued that a doctor can write a lethal prescription, but because the patient performs the final act of taking the drugs, the physician should not be prosecuted.
As a result, “de facto assisted suicide is wide open in Montana for anyone who has been diagnosed or misdiagnosed as having a relatively short period of time to live,” she says.
She went on to explain that the way the law stands now allows anyone who is diagnosed by a doctor or nurse practitioner as being terminally ill to receive a prescription for a lethal overdose. In Montana, a terminal illness is defined as a condition that without treatment will cause death “within a relatively short time.” However, this “relatively short time” period is not defined.
This means that essentially, even people with conditions such as diabetes would qualify under this law, Ms. Marker said. “Because without treatment, diabetes would certainly cause them to die in a relatively short period of time compared to how long they might have lived without that condition.”
Another problem is what impact this ruling could have on other states. “Proponents can now say a court just found it [assisted suicide] acceptable based on a state’s living will law. Basically every state has a living will law similar to Montana’s and could use the same approach.”
Opponents of the decision say they will now turn to Montana’s legislature where they hope laws will be passed that will essentially overturn the ruling.
“We find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy,” said the state’s Supreme Court in the 4-3 decision. “We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient – not the physician — commits the final death-causing act by self-administering a lethal dose of medicine.”
The ruling on the case was brought by the euthanasia advocacy group, Compassion & Choices, formerly The Hemlock Society, and filed on behalf of Robert Baxter of Billings and four physicians.
Mr. Baxter, who was diagnosed with leukemia 12 years ago, died of lymphoma Dec. 5, 2008.
The court’s decision did not go as far as a previous ruling by District Judge Dorothy McCarter of Helena who not only ruled in Dec. 2008 that physician assisted suicide is not illegal under state law but extended constitutional protections to the procedure as well.
The state’s Supreme Court agreed with only one part of the ruling and chose to give no opinion on the greater constitutional question addressed by the lower court.
Dissenting justices said the court was reversing long-standing public policy. “Until the public policy is changed by the democratic process, it should be recognized and enforced by the courts,” wrote Justice Jim Rice for the minority. “In my view, the court’s conclusion is without support, without clear reason, and without moral force.”
Euthanasia advocates praised the decision.
“This case was about the right of mentally competent, terminally ill patients to request a prescription for medication from their doctors which they can ingest to bring about a peaceful death,” said Compassion & Choices Legal Director Kathryn Tucker, co-counsel to the plaintiffs/respondents. “Montanans trapped in an unbearable dying process deserve, and will now have, this end-of-life choice.”
Roberta King, daughter of the late Robert Baxter, said, “My father died without the peace and dignity he so dearly wanted for himself and others. He feared when he filed this lawsuit that he would not live long enough to benefit from it. I’m sure he would be deeply gratified that other terminally ill Montanans will have the choice and comfort that aid in dying affords them.”
Opponents of the decision, such as Alex Schadenburg of the Euthanasia Prevention Coalition, said that a “ bright spot” in the decision is that it does not give physicians the “right” to prescribe a lethal dose, “but only suggests that circumstances may exist to give them a defense to prosecution for homicide.”
Others warn of problems ahead.
Rita Marker, attorney and director of the International Task Force on Euthanasia and Assisted Suicide, a patient advocacy group, called the ruling “humpty-dumpty” law because the Court applied “verbal gymnastics” to the state’s living-will law in order to justify not prosecuting doctors who write lethal prescriptions.
According to Ms. Marker, the state’s Rights of the Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient’s end-of-life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive. Citing these guidelines, proponents successfully argued that a doctor can write a lethal prescription, but because the patient performs the final act of taking the drugs, the physician should not be prosecuted.
As a result, “de facto assisted suicide is wide open in Montana for anyone who has been diagnosed or misdiagnosed as having a relatively short period of time to live,” she says.
She went on to explain that the way the law stands now allows anyone who is diagnosed by a doctor or nurse practitioner as being terminally ill to receive a prescription for a lethal overdose. In Montana, a terminal illness is defined as a condition that without treatment will cause death “within a relatively short time.” However, this “relatively short time” period is not defined.
This means that essentially, even people with conditions such as diabetes would qualify under this law, Ms. Marker said. “Because without treatment, diabetes would certainly cause them to die in a relatively short period of time compared to how long they might have lived without that condition.”
Another problem is what impact this ruling could have on other states. “Proponents can now say a court just found it [assisted suicide] acceptable based on a state’s living will law. Basically every state has a living will law similar to Montana’s and could use the same approach.”
Opponents of the decision say they will now turn to Montana’s legislature where they hope laws will be passed that will essentially overturn the ruling.
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