Ochenski 

Death with dignity: Recent ruling offers Montanans end-of-life choices

There was plenty of good news in Montana last week, ranging from a Supreme Court decision rescinding the mining permit for the proposed Rock Creek mine, which would tunnel under the Cabinet Mountains Wilderness Area, to a decision by the Army Corps of Engineers to pull a necessary permit, thus halting construction on the controversial coal-burning Highwood Generation Plant. But topping the list was the decision by Helena District Judge Dorothy McCarter to allow physician-assisted suicide for those with terminal illnesses who wish to die with dignity.

The case in which McCarter ruled was brought by Robert Baxter, a 76-year old truck driver from Billings with terminal leukemia who simply wanted to end the continuous pain from the disease with pharmaceuticals prescribed by his doctors. Baxter was joined in the lawsuit by four Montana doctors and an attorney from Compassion and Choices, a national patients’ rights organization who represented Baxter.

The case was unique because Montana does not have a right-to-die law on the books. In fact, only two states, Washington and Oregon, have such laws. Instead, the lawsuit challenged the state’s ability to interfere with an individual’s decision to choose the time and method of their passing based on the Montana constitutional rights to individual privacy and human dignity.

Montana Attorney General Mike McGrath’s office argued against the suit, primarily on the basis that it was illegal to take the life of another citizen under Montana’s laws and hence, it would be illegal for physicians to prescribe life-ending drugs to anyone, including terminally-ill patients.

In what will be remembered as an outstanding opinion, McCarter wrote eloquently and forcefully on behalf of Baxter and all Montanans.

“The Montana Constitutional rights of individual privacy and human dignity, taken together, encompass the right of a competent, terminally ill patient to die with dignity,” wrote McCarter in her ruling, which is now binding on all Montana state agencies. “The patient’s right to die with dignity includes protection of the patient’s physician from liability under the state’s homicide statutes,” McCarter added, making it perfectly clear that physicians who assist with voluntary suicide are not subject to prosecution.

McCarter’s ruling, which applies to any Montanan who is “mentally competent and terminally ill,” rejected the argument by McGrath’s office that it would be difficult to determine competence. McCarter pointed to numerous instances in which doctors routinely judge competence for any variety of circumstances, writing: “Competency is easily determined by the patient’s doctor. Treating physicians are frequently called upon to determine the competency of their patients for the purposes of guardianship and other legal proceedings. Whether a patient is terminally ill can also be determined by the physician as an integral component of the physician-patient relationship.”

During the hearing McCarter questioned the state’s need to keep people who are sick and suffering from self-administering the prescribed drugs, saying: “I mean, we put our pets to sleep when they’re suffering and that’s considered humane. And yet, if we want to do it to our loved ones, it’s considered murder.”

For his part, McGrath said: “It’s a major constitutional issue and the Supreme Court should rule on it.”

On Tuesday, McGrath said his office would, in fact, appeal the decision to the Supreme Court. He added through his spokesperson that he would recuse himself from the case since he was just elected to step into the Chief Justice position in January.

In the meantime, Missoula’s newly elected Democratic representative, Dick Barrett, has already requested a bill to enshrine McCarter’s decision in law. Barrett, who is personal friends with two of the doctors who brought the lawsuit, called it “a deeply personal issue” and hoped his bill “wouldn’t become a partisan political football.” Whether Barrett’s bill would negate the need to appeal the McCarter ruling to the Supreme Court is unknown.

Ironically, Robert Baxter died Friday, the day McCarter issued her ruling, but passed away without knowing he had won the case. His attorney, Kathryn Tucker, paid tribute to Baxter’s determination, saying, “He really was a public servant. It takes a rare individual to say, ‘I’m going to fight for my individual rights as one of my last acts on Earth.’”

Indeed, we all owe Baxter a debt of gratitude, even though he is far beyond our means to repay it. Almost all Montanans have experienced, or know a friend or loved one who has experienced, the heartrending trauma of terminal illness and end-of-life choices. Until now, we were all limited to the unending pain and expensive drugs and hospital care that often accompany the long decline to eventual death. But thanks to Baxter’s brave struggle for individual dignity—and McCarter’s brave ruling—there’s another choice. We, or those we love, can now legally obtain the drugs necessary to end life at the time and in the place of our own choosing, surrounded by family and friends in their own homes instead of hooked up to tubes in a sterile hospital room.

And once again, the Montana Constitution, written in 1972 by Montanans who knew and valued our most basic beliefs in freedom, human dignity, individual privacy and protection of the environment for future generations has prevailed. Two weeks ago, the Supreme Court ruled in favor of access to the Mitchell Slough based on the constitutional provision that all lands and waters belong to the people of Montana. This week, the same court found the Department of Environmental Quality deficient in issuing a permit to the Rock Creek mine because the agency didn’t fully consider the implications of the perpetual pollution it would cause, thus violating Montanans’ constitutional right to a clean and healthful environment. And now, with the Baxter ruling, our most private matter—literally life and death—is upheld as our right under Montana’s Constitution. Thank you, Robert Baxter, wherever you may be.

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.
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