Montana’s Suicide Sneak

Montana’s new attorney general promised to fight a state judge’s ruling legalizing physician-assisted suicide.

HELENA, Mont. — Montana had no public debate on physician-assisted suicide. So it was a surprise when Montana District Court Judge Dorothy McCarter ruled that state laws prohibiting the practice were unconstitutional — and that doctors could now prescribe lethal drugs for their patients.

In her Dec. 5 ruling, McCarter found in the state’s constitution a “fundamental right” for the terminally ill to commit suicide with the help of their physicians, including protection for doctors from “liability from the state’s homicide statues.”

Because of U.S. Supreme Court decisions and the particular language of the 1972 revised Montana Constitution, the ruling appears unique to Montana. However, the issue is hardly over for the state.

McCarter’s order asks the Montana Legislature to implement her ruling, but it is being appealed to the Montana Supreme Court. Those frustrated with what they see as “legislating from the bench” have vowed to carry the issue to Montana voters if necessary.

The ruling is the result of a complaint filed more than a year ago by Robert Baxter, a 75-year-old retired truck driver and terminal cancer patient from Billings, four Montana physicians from Missoula, and the pro-assisted-suicide organization Compassion & Choices of Denver and Portland, Ore. Baxter died before McCarter’s ruling was issued.

Compassion & Choices is the successor organization to a number of assisted suicide groups, probably the best known of which is the Hemlock Society.

The plaintiffs sued the state of Montana and Attorney General Mike McGrath, challenging the constitutionality of the application of the state’s homicide statutes to physician-assisted suicide.

McCarter found in the Montana Constitution’s Declaration of Rights, Article II, Sections 4 and 10 that individual privacy and human dignity, taken together, encompass the right of a “competent terminally ill patient to die with dignity” and “necessarily incorporates the assistance” of his doctor.

The “Individual Dignity” clause is “inviolable” and deals with discrimination on account of “race, color, sex, culture, social origin or condition, or political or religious ideas.” Individual privacy is “essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

Apparently, Montana alone has both privacy and dignity clauses in its constitution. Thus, it would seem McCarter’s ruling would have little application elsewhere.

Perceptions of Physicians?

Kathryn Tucker, Compassion & Choices’ director of legal affairs, maintains that McCarter’s ruling affirms the rights of Montanans regarding personal decisions about their bodies and medical care, including the right to control one’s time of death.

According to Tucker, McCarter’s ruling is consistent with other Montana court orders that protect the decision-making power of its citizens in the most intimate and personal areas of their lives.

“Patients should be entitled to make these critical decisions for themselves and their families, and not the government,” she said, although she allowed that the Legislature could, and should, work out guidelines.

“A Montana district court has recognized a constitutional right for a state citizen to end his or her life under certain conditions,” she said. “It’s up to the Legislature to determine what is appropriate within the scope of this ruling.”

Despite the proposed court and legislative activities, Tucker believes there is enough language in McCarter’s order, and by application with professional medical practices in Montana as referenced in the ruling, to allow physicians to write a lethal prescription for a competent, terminally ill patient wanting to die and that there are guidelines for the procedure.

Montana’s two Catholic bishops have questioned the wisdom of allowing doctors to help patients kill themselves. Now the bishops and other groups and citizens are scrambling to unravel the judge’s reasoning and consequences.

Bishop Michael Warfel of Great Falls-Billings in eastern Montana says allowing physician-assisted suicide to become legal “harms not only particular individuals but also the common good.” He cites four reasons to oppose it. Two of his concerns involve the public’s perception of physicians: their healing role in society and the confidence patients give to their doctors. Another concern examines what is meant by a “right,” and the fourth is the concern that the procedure will be misused by unscrupulous people to take advantage of the weak and vulnerable.

Bishop Warfel challenges the notion that people have a “right” to take their own lives. “A ‘right’ is that which is due to a person based on one’s nature,” he said. “It is human nature to live and to avoid death. While death is paradoxically a part of life, the ‘right’ which people have is the right to life. Death is a privation of life and not a good.”

The bishop also warned of the danger of misuse: “A person who is ill could easily be manipulated into making a terrible decision to end his or her life, for instance, for someone to inherit the estate or to eliminate a person considered a burden. Or a doctor could decide on his or her own that a patient would be better off dead and then talk the patient into taking a lethal drug.”

“Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick or dying persons,” the Catechism of the Catholic Church teaches. “It is morally unacceptable. Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his creator” (No. 2277).

Mailee Smith, an attorney with Americans United for Life, a Chicago-based organization, takes issue with Tucker’s reasoning that guidelines are in place. Smith states that the plaintiffs’ definition of “terminally ill adult patient” in Baxter v. Montana is broader than that in Oregon. It includes a person 18 years of age or older who has an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of his or her attending physician, result in death within a relatively short time.

“The definition is not limited to any specific set of illnesses, conditions or diseases,” Smith argues, while noting it’s not at all limited to “terminal illnesses.” As a result, “this definition could be used in any number of ‘incurable’ or ‘irreversible’ medical situations, including diabetes and asthma.”

McGrath was elected Montana Supreme Court chief justice in November, but in December, before his term as attorney general came to an end, he said he intended to appeal McCarter’s findings and asked her to suspend the effect of her ruling until the state’s high court decided the matter. The state has 60 days to appeal.

After he was sworn in as chief justice Jan. 5, McGrath pledged to recuse himself from the case. Recently elected Attorney General Steve Bullock said he will continue the appeal.

On Jan. 7, McCarter dismissed McGrath’s request to suspend her ruling, eliminating the possibility that physician-assisted suicide would no longer be allowed in Montana during the interim.

Jeff Laszloffy, president of the Montana Family Foundation and a former member of the Montana House of Representatives’ Judiciary Committee, spoke of the need for conscience protection.

“There have been attempts to force Montana pharmacists, especially in rural Montana where drugstores are few and far between, to prescribe abortifacient drugs, even if it violates their conscience,” Laszloffy said. “As a result, we already were preparing a ‘conscience clause’ bill that would allow pharmacists to opt out of selling certain drugs. Now we are looking at expanding this effort to all health-care workers or adding another bill to the legislative mix,” he said.

Laszloffy said a constitutional amendment outlawing physician-assisted suicide may be necessary.

Cort Freeman is based

in Butte, Montana.

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