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The Montana Supreme Court ruled that physicians may under certain circumstances provide assisted suicide to patients who are suffering. Now Montanans are waiting to see if the state Legislature will act.
BY CORT FREEMANREGISTER CORRESPONDENT
HELENA, Mont. — Assisted suicide can
now be legally performed in the state of Montana, but for doctors
participating, it can be tricky.
The Montana Supreme Court, in a Dec.
31 ruling, reversed a lower-court ruling that said Montanans had a state
constitutional right to physician-assisted suicide. But it ruled that state law
allows patients to consent to their own deaths and protects doctors in the
state from prosecution for assisting in a suicide.
In a 5-2 decision, the high court
found “nothing in Montana Supreme Court precedent or Montana statutes
indicating that physician aid-in-dying is against public policy.”
Jeff Renz, clinical professor of law
at the University of Montana Law School, said that instead of addressing the
state constitutional issue of physician-assisted suicide, the court said
suicide is not a crime under Montana law.
According to the high court, he
said, “if a ‘competent’ adult, ‘terminally ill’ patient with the patient’s
subsequent ‘peaceful and private act’ of taking a lethal dose of medicine (with
most of these terms undefined) wants to kill himself or herself, the doctor
prescribing the medication can invoke the ‘consent of the victim’ defense to
Justice Jim Rice, dissenting from
the decision, argued that the court had badly misinterpreted public policy and
that assisting a suicide has been explicitly and expressly prohibited by state
law for the past 114 years.
With regard to the consent of the
victim, Rice wrote: “The policy of the law is to protect human life, even the
life of a person who wishes to destroy his own. To prove that the victim wanted
to die would be no defense to murder.”
While the high-court decision makes
Montana the third state to allow physician-assisted suicide, some see
technicalities interfering with applicability.
First, the court did not “legalize”
assisted suicide in Montana, as Compassion & Choices, the group formerly
known as the Hemlock Society, would like the public to believe. Compassion
& Choices’ legal director, Kathryn Tucker, was quoted as saying “the
Montana Supreme Court has determined that this is a choice that state law
entrusts to Montana patients, not to the government.”
Compassion & Choices filed the
original physician-assisted suicide case in Judge Dorothy McCarter’s Helena
District Court. In December 2008, she found a state constitutional right for
physician-assisted suicide under the Montana state constitution’s unique
dignity and privacy clauses. Her decision was appealed to the state’s highest
court by Montana’s attorney general. The attorney general’s office said the
opinion shows that the issue still needs to be resolved by lawmakers.
Matt Bowman, legal counsel with the
Alliance Defense Fund in Washington, said, “If a Montana doctor prescribes a
lethal dose of medication under circumstances that do not amount to a patient’s
free informed consent to or self-administration of suicide, the court’s
decision would not prevent a doctor from being convicted of murder and liable
Bowman said the court did not
discuss the fact that consent is often clouded by depression, delusion,
disabilities, the adverse influence of greedy relatives, badgering the elderly,
and a lack of full and clear information on alternative options of palliative
care — and therefore there is the real possibility of abuse.
“Vulnerable populations — the
elderly, the poor and the disabled — can very easily be manipulated into
accepting a prescribed death if they feel they are a financial or emotional
burden to their families,” said Bishop Michael Warfel of Great Falls-Billings,
Mont. “Proper health care should address the problem, not accept prearranged
death as the appropriate solution.”
Lee Bruner, a Montana attorney with
extensive medical practice experience, said the issues of consent, mental
status and appropriate standard of care in Montana have yet to be determined.
“Physicians who find themselves in violation of a law yet to be written could
face severe criminal and malpractice liability.”
The Montana Supreme Court said
nothing to prevent the state Legislature from declaring that assisting a
suicide is against public policy for purposes of the consent statute. Montana
law already states that assisted suicide is homicide. The next biennial
legislative session in 2011 could make assisting in a suicide a criminal
offense, or it could regulate the practice or invoke other options.
This causes some concern for Niki
Zupanic, public policy director of the American Civil Liberties Union of
Montana. She is worried the recent decision will be short-lived.
“The court has left [it] open for
the Legislature to come back and amend state law, and the right of patients and
protection for doctors could go away,” she said.
According to Dr. Craig Terptow of
Great Falls, physicians want to treat patients with care and compassion.
“Deadly drugs aren’t the answer,” he said.
Depending on possible future
legislation, a second constitutional court challenge could be mounted based on
the privacy and dignity clauses in the Montana Constitution that the court
avoided this time. As for now, however, such a judicial decision and its impact
in Montana and at the national level is pure speculation.
Cort Freeman writes from Butte, Montana.