Assisted Suicide Legalized in Montana; Attorney General to Appeal

by Liz Townsend

Montana, which has the highest suicide rate in America, is now the third state where doctors can legally kill their patients. Montana District Court Judge Dorothy McCarter ruled December 5 that the state constitution includes the right to assisted suicide, the Associated Press (AP) reported.

Bypassing the usual requirements of legislative and voter approval (the route that was followed by Washington and Oregon when their assisted suicide laws went into effect), McCarter declared that 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,” according to the AP.

McCarter added that doctors who “help” their patients to die would not be subject to prosecution. “The patient’s right to die with dignity includes protection of the patient’s physician from liability under the state’s homicide statutes,” she wrote.

Yesterday Montana Attorney General Mike McGrath asked McCarter “to suspend the effect of her ruling until the Montana Supreme Court rules on the matter,” the Billings Gazette reported. McGrath’s office intends to challenge McCarter’s ruling to the state Supreme Court.

Not surprisingly, Kathryn Tucker –the lawyer for the right to die groups–opposes the delay. Last week Tucker said she “expects Montana to look to Oregon and Washington for guidance,” Montana Public Radio reported, “but she says Montana will have more freedom.”

“Let’s just take the example of the waiting period,” Tucker said. “In Oregon there’s a minimum 15-day waiting period. That provision very possibly would not survive constitutional scrutiny because it would be unduly burdensome” (emphasis added).

The case, Baxter et al. v. Montana, was brought by Robert Baxter, 75, a patient with lymphocytic leukemia; four physicians; and the pro-assisted suicide group Compassion & Choices (formerly the Hemlock Society). Baxter died of natural causes that same day McCarter announced her decision.

The state attorney general’s office strongly opposed the lawsuit, the AP reported. During an October 10 hearing, Assistant Attorney General Jennifer Anders clearly laid out the case against bringing assisted suicide to Montana.

According to the AP, Anders argued that “intentionally taking a life is illegal”; “the issue of assisted suicide falls under the responsibility of the Legislature, not the court”; “the state has no formal evaluation process, safeguards, or regulations in place to provide guidance or oversight for doctor-assisted suicide”; and “it was premature to declare constitutional rights for a competent, terminally ill patient because there is no definition for ‘competent’ or ‘terminally ill.’”

Dismissing all of the state’s objections, McCarter ruled that the broad privacy and dignity rights in the Montana constitution gave patients the “right” to seek lethal doses of medication from physicians. She added that the same doctors who would be assisting in the patients’ suicides could determine if the patient was both mentally competent and terminally ill, the AP reported.

At the same time the judge was giving Montanans the right to kill themselves, others in the state are working diligently to reduce the number of suicides. Montana’s suicide rate is double the national average—22 per 100,000 people, compared to 11 per 100,000 nationwide, according to the AP.

The Montana Chapter of the National Association of Social Workers held a conference—“Striving for Last Place: Preventing Suicide by Instilling Hope”—in November seeking answers to the high rate of suicide. Health care professionals pointed to a lack of mental health services in much of the state, along with access to firearms and alcohol.

“There is still a hesitancy for a lot of people in Montana to seek help if they’re feeling suicidal,” Tracy Velazquez, executive director of the Montana Mental Health Association, told the AP. “There’s still a stigma attached to it, and, especially in rural areas, people feel like they should just deal with things and take care of them on their own.”