Far from finished 

Recent right-to-die ruling raises policy questions

A Dec. 5 ruling by District Judge Dorothy McCarter makes Montana—at least temporarily—the most liberal jurisdiction in the country on a patient’s right to die, according to multiple legal experts. In response, some members of the 2009 Legislature are scrambling to put right-to-die restrictions in place.

While Washington and Oregon legislation allows terminally ill patients to end their lives, Montana law, as interpreted by McCarter, stipulates almost no parameters on the general practice. The ruling, which culminated a year-old case by Robert Baxter, who died before seeing the result of his lawsuit, simply absolves doctors of criminal prosecution under current homicide statutes as long as the patient is of sound mind and failing body.

McCarter denied a state motion Jan. 7 to stay her decision until the matter reaches the Montana Supreme Court, which isn’t expected for at least a year.

Of the two bills promised so far for this session, the one drafted by Rep. Dick Barrett, D-Missoula, appears closer to a hearing. Barrett says he hopes to clarify and regulate right-to-die practices in Montana. The bill aims to both codify the McCarter ruling—in other words, to create a statutory right should the Supreme Court reverse her decision—and to curb the potential exploitation of patients.

“The bill is in response to the fact that Judge McCarter made the decision that she did…She appears to invite the Legislature to act in this regard,” Barrett says. “Given that the constitutional right is there, it’s probably necessary to assert that it’s there legislatively as well. It also protects the patients and the patients’ physicians in the exercise of the right.”

Rep. Julie French, D-Scobey, plans to introduce a different bill that addresses some logistical and ethical problems she sees with Barrett’s proposal. French explains she’s concerned with creating a rural-urban double standard, as Barrett’s bill requires a terminal diagnosis from two physicians, which may be difficult to acquire in Montana’s outlying communities. She also believes Barrett leaves too much leeway for abuse, particularly in regard to patients with limited health care means. French promises a more restrictive piece of legislation.

“The restrictions I’m looking at, I think some people would consider extreme,” French says, “but I think we have to be keenly aware of the protection of all citizens of Montana. Human nature shows that there’s always going to be someone who tries to push the limit, and I’m extremely concerned about that.”

Whatever bill emerges from the current legislative session, the most significant aspect will come down to defining a statutory right. Since the right to die is a constitutional one in Montana, the Legislature cannot revoke it and can even be sued for imposing too much regulation. This poses a dilemma for pro-life legislators who wish to impose restrictions on the right to die without officially making Montana the third state to embrace the practice.

The Attorney General’s office says it will file an appeal with the Supreme Court once the district court sorts out attorneys’ fees. Attorneys involved in the Baxter case agree any Supreme Court action remains perhaps a year off, and timetables for a final ruling depend largely on who joins the legal scrum. In a December publication of The Catholic Diocese of Helena, Bishop George Thomas vowed the church will file an amicus brief in support of the appeal.

Neither Thomas nor the Montana Catholic Conference returned phone calls to elaborate on their legal plans.

On the opposite side, the national advocacy group Compassion and Choices is partnered with Mark Connell, the late Baxter’s attorney. The organization aided Oregon’s attorney general in defending that state’s 1994 law permitting the right to die against a 2005 challenge by the Bush administration. While the Montana decision proves similarly groundbreaking in serving as the first judicial action to establish the right to die, Connell asserts his focus remains on defining and protecting that right for Montanans alone.

“Both sides are now watching to see what the Legislature will do,” he says.

The Baxter case also falls short of establishing whether health care employers—particularly those run by the Catholic Church—can legally pursue disciplinary action against doctors who participate. Missoula’s St. Patrick Hospital is one Montana institution with clear guidelines against doctor-assisted suicide. A member of the St. Pat’s ethics committee, Mary Anne Sladich-Lantz, says the hospital operates under an overarching directive within the Catholic health care system. The policy also dictates in-house practices, or a lack thereof, on abortion.

“Any person who works at St. Pat’s has a right to their opinion,” Sladich-Lantz says. “The other side to that is when they work at St. Pat’s, they would be held accountable to the policies and the guidelines that the hospital upholds.”

Several Missoula doctors involved in Baxter v. Montana as co-plaintiffs declined to comment on the past or future of the case, but explain their positions extensively in a series of affidavits. Dr. George Risi Jr., an HIV/AIDS specialist who once served as the head of infection control at St. Pat’s, describes terminally ill patients purchasing guns or hoarding pills to escape the last months of pain.

“The deterrent effects of Montana’s homicide statutes as applied to physicians treating terminally ill patients has resulted in patients of mine dying tortured deaths,” Risi writes.
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