It is currently legal for terminally ill, adult, competent Montana residents to seek the aid of a physician to hasten death and a physician can legally provide that aid. Meanwhile, District Court Judge Dorothy McCarter’s December 2008 determination that Montanans have this right has been appealed to the Montana Supreme Court. The Court is expected to issue its ruling sometime in this year. If the court affirms McCarter’s ruling, the right to a physician’s aid in dying (PAD) will become a permanent part of Montana’s legal framework. Overturning it would require passage of a constitutional initiative. While I never say “never,” it is difficult, in a state whose population fiercely values individual autonomy and independence, to envision voters taking away the right for a terminally ill adult to seek aid in dying.
If the Supreme Court rules in our favor, what’s next for Montana? The next step will be legislative, most likely during the 2011 legislative session. It will be incumbent upon that legislature to codify the right to PAD in a regulatory framework that defines terms such as “terminal”, “competent” and “resident.” Until this is done, it will be primarily a physician’s responsibility to define these terms. This does not provide as much leeway as may be supposed. When there are “gray” areas, medical providers are ethically bound to provide care that is in line with what their peers and society view as prudent and reasonable. Thus, until Montana has specific regulations in place defining terms, Montana physicians can be expected to follow the guidelines and definitions in Oregon’s Death with Dignity regulations.
Whether the 2011 Montana legislature will undermine the spirit of this right through draconian legislation or work in good faith to provide regulatory oversight protecting vulnerable populations from abuse while providing terminally ill patients with the necessary flexibility to use this right remains to be seen. If history is any example we will be treated to both behaviors. It will be up to us, as citizens, to make sure the latter prevails.