In its December 2009 ruling in the Baxter case, the Montana Supreme Court made it possible for terminally ill patients in Montana to ask for and receive aid in dying: the prescription of a lethal medication that patients whose death was immanent could take to die peacefully, in the company of loved ones, and at the time they wished. Specifically, the court ruled that since they would be acting with the consent of the patient, and since their actions would not be contrary to public policy, physicians honoring a patient's request for aid in dying would have an affirmative defense if they were charged with a crime.
In reviewing existing public policies regarding the terminally ill, the Court found no explicit prohibition on aid in dying. On the other hand, it did find that Montana law gives the terminally ill ample autonomy in making decisions about the end of life: Montanans are free to decide whether or not they wish to receive treatment for their underlying condition; what type of hospice and palliative care, if any, they want to have; what advance directives they leave in the event they become unable to make decisions on their own; and even whether they want to stop eating, or being fed, in order to hasten their deaths. Given the respect paid to the autonomy of the terminally ill in the law, the Court found that it would be "incongruous" to find that the autonomy to ask for and receive aid in dying was contrary to public policy.
Although the Court broke new ground with this decision, the fact that it turns, in part, on a reading of public policy means that it is subject to modification and implementation - or even reversal - by the legislature. What are the public policy issues the legislature must grapple with in addressing aid in dying?
In 2011, Sen. Anders Blewitt and I asked for legislation to be drafted for consideration by the Legislature that affirmed the right of Montanans to request and receive aid in dying, subject to safeguards that prevent the abuse of the vulnerable. The bill also protected physicians who provide aid in dying from civil liability and professional sanctions, and recognized and affirmed the right of caregivers to refuse to provide aid in dying when they deem it inappropriate.
Perhaps the most difficult issue is the fear that some Montanans express that vulnerable people -- the elderly or the disabled, for example -- will be coerced against their will by abusive family members or caregivers to ask for aid in dying. It is important to understand in this connection that aid in dying is emphatically not euthanasia; only mentally competent, terminally ill adults who are able to administer the medications to themselves may request them. This means that no one can request aid in dying on behalf of anyone else. And in the two states where aid in dying is allowed -- Oregon and Washington -- there is no evidence of such abuse occurring.
Another public policy question that the Legislature needs to address concerns constraints on physicians in providing aid in dying. While the Court's decision freed doctors from concerns about criminal prosecution, it did not address questions of civil liability or sanctions by professional organizations or employers. To the extent that these prevent physicians from honoring requests for aid in dying, they also render the right to make the request hollow. At the same time, there are physicians, hospitals, hospice organizations and other caregivers who oppose aid in dying and will refuse to provide it, and the law should make clear that it is their right to do so.
Also in 2011, Sen. Greg Hinkle introduced a bill to override the Supreme Court, and make aid in dying illegal.
Nevertheless, since the fear of abuse is real, how should the Legislature address it? One solution is simply to ban aid in dying. But this is clearly not the appropriate response. We routinely give people rights - keeping firearms in the home, for example - that can be abused with fatal consequences. In these cases we do not allow the possibility of abuse to extinguish an important right; rather, we try to create safeguards to prevent the abuse in the first place. This indeed is what Oregon and Washington have successfully done. If the experience in those states is any indication, very few Montanans will request aid in dying. But we should respect and protect the autonomy of Montanans to make the request when they feel they need to.
In the end, the 2011 Legislature rejected both bills: it refused to make aid in dying illegal but also failed to further implement the Supreme Court's decision in Baxter. So the issue remains open. I believe we should do what we can to enhance, rather than limit, the ability of physicians to care for their patients compassionately, including by providing aid in dying under appropriate circumstances.