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Friday, January 01, 2010

Montana supreme court rules physician assisted suicide not banned by state law
Dwyer Arce at 2:42 PM ET

[JURIST] A sharply divided Montana Supreme Court [official website] ruled [opinion, PDF] Thursday that physician assisted suicide is not banned by state law, making Montana the third state to allow the practice after Oregon and Washington. The Court upheld in part and reversed in part a lower court ruling, agreeing with its finding that physician assisted suicide is not illegal under state law, but giving no opinion on the greater constitutional question addressed by the lower court. Instead, it found in a 4-3 decision that physician assisted suicide was not rendered illegal under state statute or by public policy concerns, stating:

There is no indication in [state law] that physician aid in dying is against public policy. Indeed, [it] reflects legislative respect for the wishes of a patient facing incurable illness. [It] also indicates legislative regard and protection for a physician who honors his legal obligation to the patient. [State statute] immunizes a physician for following the patient’s declaration even if it requires the physician to directly unplug the patient’s ventilator or withhold medicine or medical treatment that is keeping the patient alive. ... In light of the long-standing, evolving and unequivocal recognition of the terminally ill patient’s right to self-determination at the end of life ... it would be incongruous to conclude that a physician’s indirect aid in dying is contrary to public policy. ... [T]he inquiry stops there.
An official of the Montana Department of Justice [official website] said [NYT report] that the ruling represented the Court's recognition that the issue should be resolved in the state legislature. The Montana Family Foundation [advocacy website] an opponent of physician assisted suicide, has promised [Spokesman-Review report] to take the issue to the state legislature.

Montana's First Judicial District ruled [JURIST report] in December 2008 that terminally ill patients have the right to commit physician assisted suicide. The case, Baxter v. Montana [case materials], was brought by a number of terminally-ill Montanans, their doctors, and Compassion & Choices [advocacy website], an organization supporting the legalization of physician assisted suicide. The plaintiffs alleged that their right to assisted suicide was guaranteed by the Montana Constitution [text], under provisions relating to their rights of privacy, individual dignity, due process, equal protection, and the right to seek safety, health and happiness in all lawful ways. The lower court held that terminally ill individuals have the right to die with dignity, and have the right to obtain self-administered medications to hasten death if they find their suffering to be unbearable. In November 2008, voters in Washington state approved a ballot initiative [JURIST report] that allows terminally ill, legally competent adults to obtain lethal prescriptions without exposing themselves, their physicians, or others to criminal penalties. The Washington measure was modeled on neighboring Oregon's Death with Dignity Act [official materials], enacted in 1997 and upheld [JURIST report] by the US Supreme Court in 2006.





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