The Supreme Court of Montana vacated a trial judge’s ruling that the Constitution of Montana prohibited assisted suicide for the terminally ill–but construed the state’s living will law as permitting doctors to prescribe lethal overdoses if the patient self administers. This is odd because that approach was barely addressed–a matter acknowledged by the court since the overwhelming focus was on the constitutional aspects of the case–and it would thus seem to me that a motion for reconsideration is in order so this approach can be more fully briefed. From the conclusion of the majority opinion:
In conclusion, we find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. The “against public policy” exception to consent has been interpreted by this Court as applicable to violent breaches of the public peace. Physician aid in dying does not satisfy that definition. We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient—not the physician—commits the final death-causing act by self-administering a lethal dose of medicine.
Furthermore, the Montana Rights of the Terminally Ill Act indicates legislative respect for a patient’s autonomous right to decide if and how he will receive medical treatment at the end of his life. The Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient’s end-of-life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive. There is no statutory indication that lesser end-of-life physician involvement, in which the patient himself commits the final act, is against public policy. We therefore hold that under § 45-2-211, MCA, a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply.
Like I said: Very odd–particularly since in Vacco v. Quill, the United States Supreme Court ruled unanimously that there is relevant and legal distinction between removing unwanted life support and assisting suicide.
The good news is that it isn’t a constitutional right but permitted by the Court’s construction of a statute (despite that the authors of the legislation almost surely never intended advance directives to apply to assisted suicide). And since the analogy is to withdrawing life support, it will be harder to expand the category of people to whom doctors can legally prescribe without running afoul of the homicide statutes. Best of all, because it is statutory, the law can be changed or clarified.
The bad news is that the case seems to accept “aid in dying” as a legitimate medical procedure, and indeed one in which the physician is less involved in a patient’s death than when he or she withdraws life support. But we are generally not talking about patients on life support. Thus, this bizarre approach will now be attempted by Compassion and Choices in other states.
Let us hope this matter is reconsidered to allow full briefing on the point. Absent that, let us hope that the Montana Legislature clarifies the law as not applying to prescribing lethal doses for suicide.
Happy New Year.
December 31st, 2009 | 3:52 pm
[...] This post was mentioned on Twitter by Vince Humphreys, Wesley J. Smith. Wesley J. Smith said: No Constitutional Right to Assisted Suicide in Montana–but Not Against Current Law » Secondhand Smoke | A First Thin… http://shar.es/a9Pmx [...]
December 31st, 2009 | 4:15 pm
[...] Wesley J. Smith: No Constitutional Right to Assisted Suicide in Montana–but Not Against Current Law [...]
December 31st, 2009 | 6:13 pm
Well Vacco v. Quill doesn’t seem to have been as good as I thought. A problem which could have been averted by no Quill in the first place. “Removing unwanted life support”and “assisted suicide” ARE the same thing, if they are both wanted. IF. If a person can’t kill him- or herself and someone else has to help them, it’s not suicide, and if a person can’t remove their own life support, one can’t be sure they don’t want it at the time, either. Either way it comes out to the same thing. Murder. Intentional killing. Bunch of baloney, these justifications.
December 31st, 2009 | 11:58 pm
I am not surprised by this. In 2005 my mother was unwillingly euthanized in a Billings hospital. My father had power of attorney and not of sound mind but was misled by my siblings. I was unable to stop it. In 2007 I witnessed my father being murdered by my sisters in our family home in Butte. With no medical background but given rudimentary training and periodically calling Butte Hospice, they were allowed to overdose him continuously with morphine to hastening his death. I will be forever haunted by his begging for them to stop. Also, when I would sit him up so he could breathe more easily they would lay him down upon which he would begin gasping and choking for air. They would complain because he wouldn’t “go”. When I asked the police to intervene they told me that times had changed. I indicated that many of my male relatives (passed away now) had been physicians in Butte and would be horrified at this experience. I will forever be traumatized and grief-stricken from all of this and the actions of my family, as well as the Billings and Butte physicians who orchestrated this.
January 1st, 2010 | 4:05 pm
Liz is not alone in her experience, although our family was united in our efforts to keep our father alive. He indicated to us that he still had a strong will to live, while hospital personnel told us that he really didn’t want to live and was saying that only to keep us happy. The very day he was all set to go home, he was administered morphine and was gone within minutes!?! Yes Liz, the trauma to the surviving family members is indescribable – pure hell! But you know what… the hospital didn’t have to spend any more money keeping our dad alive in the future. I’ve been hearing stories that this goes on ALL the time. For the public’s own good, they need to realize this stuff is going on CONSTANTLY, before it affects THEM.
February 4th, 2010 | 9:59 am
Your article is misleading. The court did not rule that there was no constitutional right. They simply resolved the issue on statutory grounds instead. This doesn’t preclude the same arguements from being brought up and reheard if the legislature goes to change the law.
February 4th, 2010 | 10:54 am
It isn’t misleading. What is misleading is the word, “instead” in your post. They decided on statutory grounds, but they gave no indication that they would have found a constitutional right.
Links
Blogs
Find Us
Contact