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Montana: Paving the Road to “Dignity” with Death

By Mailee R. Smith
Staff Counsel

In a breath-taking example of legislating by court order, a Montana district judge has set Montana on the fast track to killing its own citizens.  In her December 2008 order, Judge Dorothy McCarter ruled that persons in Montana have a right to die, and a right to assistance in dying.

Suicide advocates are claiming that Montana is now the third state in the nation to allow physician-assisted suicide.  But that is not entirely correct.  It would be more accurate to state that Montana is potentially the first state in the nation to allow active euthanasia.

Suicide advocates would like you to think that this is all about patient “autonomy” and “dignity.”  They couch this in terms of physician assistance in dying for the “terminally ill.”  That patients have a right to decide when and how they die. 

And therein lies the catch.  The suicide advocates in the Montana case—a patient and four physicians—framed their case so broadly as to make just about anyone eligible for assisted suicide.  And the trial judge, in turn, framed her decision so broadly as to imply that constitutional rights will be “defeated” if physicians do not kill their own patients.

This is not mere rhetoric.  It is the straightforward extension of the suicide advocates’ claims and judge’s holding in the case.

Let’s take, for example, the claim that assisted suicide should be available to the “terminally ill.”  The suicide advocates in the Montana case framed their definition so broadly that it would make anyone with diabetes or asthma eligible for this “assisted” death.  They argued that anyone should be eligible who has an incurable or irreversible condition that, without the administration of life-sustaining treatment, will result in death within a relatively short time.

But this definition could be used in any number of “incurable” or “irreversible” medical situations, including diabetes and asthma.  A person with chronic asthma that is perfectly controlled with medications—but life-sustaining medications nonetheless—would easily foreseeably die within a “relatively short time” without those medications.  The same is true of someone with controlled diabetes.

Even more frightening than this expansive definition of “terminally ill” is the judge’s conclusion that, if a patient does not receive assistance in dying, then his or her constitutional rights have been “defeated.”  But what about patients who are physically unable to take the drugs themselves?  Under the judge’s rationale, they would have just as much of a right to a dignified death as a patient who is still capable of self-administering a lethal drug.  But by not assisting those patients—in other words, by not administering the drugs for them—the right to die with dignity is defeated for those patients. 

This is not “assisted suicide.”  It is the active participation in the death of another individual.

Moreover, the judge’s decision has devastating implications for the rights of physicians.  If a physician conscientiously objects to the provision of lethal drugs for a patient, is he or she personally “defeating” the constitutional rights of the patient?  Will he or she be civilly liable to the patient?

In other words, suicide advocates are attempting to achieve a much broader agenda—an agenda they have for the entire nation—in Montana than they even have been able to accomplish in Oregon, the first state to allow physician-assisted suicide.  Although the “safeguards” in Oregon are not fail proof and arguably protect no one, at least there are some guidelines in place.  Not so in Montana.  Not only did the judge legislate the availability of active euthanasia from the bench, but she provided no guidelines or safeguards for the citizens of Montana.

Take, for example, the fact that no second opinion on a patient’s illness or mental competency is required.  The attending physician alone can decide the competency of the patient and whether or not the patient is truly terminally ill.  One physician unilaterally decides the fate of the patient.

In fact, under the judge’s decision, there need not be even written documentation that a patient requested death, and there would be no requirement that other persons witness the request.  Again, one physician is left to decide the fate of the patient, with no checks, balances, or accountability.

This is beginning to sound much like the experience in the Netherlands, where “assisted suicide” has been legal for years.  But Dutch government reports have revealed that patients are being killed year after year without requesting or consenting to this so-called “assisted death.”  For example, in 2000, 950 patients were killed by euthanasia without request or consent.  In 2005, 550 patients were killed by euthanasia without request or consent.

These Dutch government reports are further buttressed by other studies, reporting that one-fourth of physicians admit they have “terminated the lives of patients without an explicit request.”  In another study, no request for death was made in over 80 percent of the cases.

Likewise, what Judge McCarter has approved is not physician-assisted suicide.  It is euthanasia, and the active killing of patients by their physicians—with or without evidence of patient consent.
This is the true agenda of assisted suicide advocates.  “Physician-assisted suicide” is simply their rhetorical front for active euthanasia.  This is not “dignity,” and it is not “autonomy.”  And the state of Montana may be playing right into their hands.

The Attorney General of Montana has pledged to appeal the trial court’s decision to the state’s supreme court.  In the meantime, the trial judge has refused to stay her opinion pending the appeal.  That has left suicide advocates claiming that physician-assisted suicide (which, as stated above, encompasses euthanasia) is now available in the state of Montana.  Officials in Montana claim otherwise, warning physicians to tread lightly until the issue is decided by the state supreme court.  Legislators on both sides of the issue in Montana have introduced bills seeking either to implement the judge’s decision, or counter it. 

In other words, the current and future status of “physician-assisted suicide” remains largely unknown in Montana—and hopefully the Attorney General will be successful in convincing the Montana Supreme Court to overturn the trial judge’s expansive decision.  What is obvious, however, is that if the trial court’s decision is allowed to stand, Montana will be the first state in the union to kill its own citizens.