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Physician-Assisted Suicide Ruling in Montana: Struggling with Care of the Dying, Responsibility, and Freedom in Big Sky Country

Like many Americans, especially New Yorkers like me, and probably most readers of Palliative & Supportive Care around the world, I don’t often think about the great state of Montana (aka Big Sky Country) in the Western United States. It usually doesn’t make news, and because it’s ranked 44 in population (about 1 million people) and has very few electoral college votes, it isn’t even one of those states that ends up determining who wins a U.S. Presidential election. So Montana, despite being the 4 largest state in terms of land area in the U.S., does not typically influence the Zeitgeist. Many of us in palliative care are mainly familiar with Montana through our awareness of Ira Byock, M.D. and his groundbreaking work in Missoula Montana, through the Missoula Demonstration Project, as described in his book Dying Well (1997). So, it is with some surprise that I awoke on December 31, 2009 to news from Montana that, for reasons that I will explore in this editorial, disturbed me greatly! On Dec 31, 2009, the Montana Supreme Court ruled that nothing in state law prevents patients from seeking physician-assisted suicide (PAS), thus paving the way for the procedure to take place legally in Montana, without any of the guidelines in place in states like Oregon and Washington where PAS is already legal. Ayear earlier, a Montana state District Court judge had ruled that the Montana state constitutional rights to privacy and dignity protected the rights of terminally ill Montanans to request physicians to prescribe the drugs they needed to die peacefully. Physicians who prescribe and patients who use these drugs to suicide are now protected from prosecution in Montana by the Supreme Court’s decision to uphold the lower court decision. The Montana Supreme Court did not go as far as the lower court in asserting that PAS was a state constitutionally protected right, but it did essentially legalize PAS in Montana. As I alluded to earlier, Montana is in the Western United States and while a very large state, it is sparsely populated. It is likely that there are more bears in Montana than physicians, particularly palliative care physicians. Like Oregon and Washington states, its original settlers were highly independent and rugged individualists; self-reliance, freedom and responsibility were likely closely held virtues and values that have remained ingrained in today’s Montanans. I suspect that religious faith and practice were also important in establishing the communities of Montana, with Jesuit missionaries playing an important early role in establishing the first settlements and converting the indigenous Salish Indians who originally inhabited the land so rich in copper, gold and silver. According to the U.S. Census (2000) estimates for 2008, Montana is 93% white, and 82% Christian, with 18% of the population declaring itself Non-Religious. I was curious about the Montana Constitution, so I looked it up on-line (http://leg.mt.gov/css/Laws/ Constitution.asp). I was particularly interested in the sections on the Right for Individual Dignity, and the Right of Privacy. The Right of Privacy states: The right of individual privacy is essential to the well-being of a free society and shall not be infringed without showing of a compelling state interest. The Right of Individual Dignity states: The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color sex, culture, social origin or condition, or political or religious ideas. Well, I am not a lawyer, and my legal education is limited to watching every episode of Law and Order, but I think I would have to agree with the Supreme Court of Montana that there is no guarantee of PAS as a right that I can easily interpret from these sections of the Montana Constitution. Palliative and Supportive Care (2010), 8, 1–6. # Cambridge University Press, 201