Montana court OKs doctor-assisted suicide

For 10 years, Oregon stood alone as the state with a legal physician-assisted suicide process. But two other states now allow the practice.

Washington voters in November 2008 passed a ballot initiative legalizing aid in dying. Then in December 2008, Montana Judge Dorothy McCarter ruled that state homicide laws unconstitutionally restrict terminally ill patients' right to dignified deaths.

The judge's ruling took effect immediately, meaning that as of AMNews press time in mid-December, Montana physicians could prescribe lethal doses of medicine to mentally competent terminally ill patients, without fear of criminal prosecution. The court decision does not apply to other states.

"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," McCarter wrote in her 1st Judicial District Court opinion.

Defending state law, Montana Attorney General Mike McGrath had argued in a motion for summary judgment that "unless and until Montanans' legislature decides to start down the rarely traveled path toward a regulated regimen of physician-assisted suicide, the court should refuse to blaze a trail."

After the ruling, McGrath filed a motion to stay the decision, pending an appeal to the Montana Supreme Court.

Kathryn Tucker, co-counsel for the plaintiffs in the case, said she would file a motion opposing a stay. She said patients' rights should not be put on hold for a Supreme Court decision that could take up to a year. Tucker added that a Montana-type legal strategy could be pursued in other states.

"We would look for a place where they have a constitution with an explicit privacy clause, then we'd look to whether that's been interpreted by the state supreme court in a way that is protective of individual privacy and autonomy," said Tucker, director of legal affairs for Compassion & Choices, a Portland, Ore.-based death-with-dignity advocacy group. "Any state where they have both of those factors would be one where this claim might well succeed."

Mixed reactions in medicine

One of the plaintiffs in the case was Robert Baxter, a 75-year-old with leukemia. He was sleeping when his family received news of the decision, according to news accounts. He never awoke, dying of natural causes before learning of the ruling. Four physicians also are plaintiffs.

Kathryn Borgenicht, MD, who was not a party to the suit, supports the decision. The Bozeman geriatrician and hospice medical director said legal aid in dying will open up end-of-life conversations and could be good for a small number of patients who value controlling how they die.

"When they are dying, the three things [patients] are looking for are comfort, control and dignity," Dr. Borgenicht said. "We're really good about providing comfort, we're OK about dignity, and control is the one thing we're really struggling with."

American Medical Association policy opposes physician-assisted suicide because the practice is "fundamentally inconsistent with the physician's role as healer." Officials with the Montana Medical Assn. said the organization has no policy on doctor-aided dying and will not file an amicus brief when the case is appealed.

The AMA usually does not join state litigation unless the state medical society asks for help. MMA officials said they had no plans to request the AMA to file a brief. MMA President Kirk L. Stoner, MD, said the society would get involved only if its members or the Supreme Court asks it to weigh in.

Physician-assisted suicide "is not something we've discussed recently," Dr. Stoner said. "We don't have a real reason to get involved right now. There are bigger fish to fry."

Gabor Benda, MD, a Bozeman family physician, said he was "deeply dismayed" by the judge's ruling.

"I do not think that physicians should ever be put in the position of helping someone to commit suicide or end their life," Dr. Benda said. "We should basically confine ourselves to the job of the healing art, as well as of keeping people comfortable."