Judie Brown
End the killing in Big Sky country
By Judie Brown
January 8, 2010

When I first heard of the Montana Supreme Court's Baxter v. Montana decision, I was somewhat comforted to read Alex Schadenberg's statement http://www.earnedmedia.org/epc1231.htm that the decision had actually rejected the pro-death Compassion & Choices (formerly the Hemlock Society) http://www.compassionandchoices.org/ organization's claim that a "right" to "aid in dying" is consistent with the state's constitution. But Schadenberg was also quick to point out that the decision

    ignores the practical realities of ensuring patient safety from over-eager heirs, new "best friends" and others who might benefit from the patient's death. For example, physicians who malpractice and who want to hide their mistakes can now say: "It was what the patient wanted." The evidence against the physician dies with the patient. If the patient has no family or other advocate, who will know?

    A bright spot in the decision is that it does not give physicians the "right" to prescribe a lethal dose, but only suggests that circumstances may exist to give them a defense to prosecution for homicide.

As is always the case with such decisions, we have to look at the pro-death movement's history to see what effect Baxter could have if state lawmakers refuse to act. It was over a decade ago that the U.S. Supreme Court ruled unanimously, in Vacco v. Quill, http://www.law.cornell.edu/supct/html/95-1858.ZO.html that there is no constitutional right to assisted suicide. But in the Montana Supreme Court decision, the majority of justices apparently rephrased the question and concluded that assisted suicide does not violate Montana state law. Remember that this case started when only one judge in one case ruled for the terminally ill man and the Compassion & Choices http://www.all.org/newsroom_judieblog.php?id=2493 supporters who brought that case. No vote, no legislation.

The entire ruling is available online, but the following excerpt (pp. 24–25) actually says all one needs to know: http://www.internationaltaskforce.org/Montana_Opinion_12_31_09.pdf

    In conclusion, we find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. The "against public policy" exception to consent has been interpreted by this Court as applicable to violent breaches of the public peace. Physician aid in dying does not satisfy that definition. We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient — not the physician — commits the final death-causing act by self-administering a lethal dose of medicine.

    Furthermore, the Montana Rights of the Terminally Ill Act [emphasis added] http://www.dphhs.mt.gov/sltc/services/aging/legal/documents/rightsofterminallyillact.pdf indicates legislative respect for a patient's autonomous right to decide if and how he will receive medical treatment at the end of his life. The Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient's end-of-life wishes, even if the physician must actively pull the plug on a patient's ventilator or withhold treatment that will keep him alive. There is no statutory indication that lesser end-of-life physician involvement, in which the patient himself commits the final act, is against public policy. We therefore hold that under § 45-2-211, MCA, a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply.

    The District Court's ruling on the constitutional issues is vacated, although the court's grant of summary judgment to Plaintiffs/Appellees is affirmed on the alternate statutory grounds set forth above. The award of attorney fees is reversed.

Using existing state law as a basis for this egregious ruling is not all that surprising, as long- time pro-life advocate for the vulnerable Julie Grimstad http://www.prolifewisconsin.org/infolibraryshow.asp?lID=50 makes clear. She put the Montana decision in the proper context in an e-mail she sent to her contact list:

    Perhaps some of you will remember 1985, when, for me at least, the anti-euthanasia battle began. My late, wonderful friend Anna Belle Lincoln and I began a campaign to repeal the Montana Rights of the Terminally Ill Act. We started a new pro-life group called The Center for the Rights of the Terminally Ill (CRTI) and set to work on our kitchen tables in Great Falls, MT, and Billings, MT, respectively. Rita Marker, Dr. Joseph R. Stanton, Mary Catherine Senander, Msgr. William Smith, and several other pro-life stalwarts helped us strategize. We were having remarkable success convincing many key Montana legislators that they had passed a deadly bill and, in fact, we had about 10 sponsors for a bill to repeal the act based on its numerous fatal flaws. However, we ran into a roadblock when another "pro-life" organization claimed that a small section of the bill merely needed to be amended and all would be well. The legislators jumped on this chance to save face. The amendment failed when the authors and original supporters of the bill — including the Montana Nurses Association and AARP — stated for the record that the original intent of the bill was to permit people to refuse food and fluids in order to die, claiming that there is a "right to die."

    Now a court decision in favor of physician assisted suicide has been partially based on the Montana Rights of the Terminally Ill Act creating "legislative respect for a patient's autonomous right to decide if and how he will receive medical treatment at the end of his life" which "explicitly shields physicians from liability for acting in accordance with a patient's end-of-life wishes..." Back in the 1980s, Rita Marker, Mary Senander and Dr. Stanton explicitly warned that living will laws such as the Montana Rights of the Terminally Ill Act were the foot in the door for full-scale euthanasia and assisted suicide.

    What we need to do now is convince the legislators in Montana that this is so and ask them to enact legislation to explicitly prohibit assisted suicide. If you know anyone in Montana, call them and ask them to contact their legislators in order to educate them about this crucially important issue and urge them to oppose assisted suicide with strong legislation prohibiting the practice.

The Montana decision and the "foot-in-the-door" state law that preceded it are potentially far more deadly that most care to admit. There was a very similar chain of events concerning abortion many years ago when, slowly but surely, state after state passed laws permitting a "little bit of killing." This trend culminated in the U.S. Supreme Court's Roe v. Wade and Doe v. Bolton decisions in 1973. Interestingly but not surprisingly, pro-euthanasia forces are using the same approach. The problem is that most lawmakers do not see that this is a pattern, or they choose to ignore it because they believe that doing so will improve their chances of being re-elected. Sad but true.

But perhaps Montana will stop repeating this pattern. Right now, the state's residents are confronted with two starkly contrasting occurrences. On the one hand, they face the court's arrogant condemnation of certain individuals to death if a physician or family member wills it. On the other, many Montanans are working feverishly to pass a human personhood amendment that would protect all persons and respect their human rights, regardless of age, health or condition of dependency. It would, in essence, stop the culture of death in its tracks and could help to eliminate the serious dangers posed by Baxter.

Let us not forget that the Baxter ruling states clearly, "The Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient's end-of-life wishes, even if the physician must actively pull the plug on a patient's ventilator or withhold treatment that will keep him alive."

In the same way that an abortionist is shielded from liability when he murders the preborn, so too the physician who kills the dying is shielded by the law. On the one hand, the physician is purportedly acting in accord with a patient's wishes; on the other hand, purportedly with the expectant mother's wishes. The similarities are too glaring to be ignored.

Not only that, but the "right to decide" to kill one self sounds quite similar to the "right to choose" to end one's child's life prior to birth, doesn't it?

Without a doubt, legal recognition of human personhood is the proper response to the slide toward total dehumanization of the human person that is occurring in Montana at this moment.

It is our hope and prayer that every pro-life Montanan will put their Big Sky attitude to work to undo this horrendous decision through state legislation while simultaneously pressing on toward protecting the personhood of each and every one of Montana's vulnerable human persons from their biological beginning until their natural end.

Contact information:

Personhood Montana

Montana Catholics for Life

Find a Montana legislator

© Judie Brown


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Judie Brown

Judie Brown is president and co-founder of American Life League, the nation's largest grassroots pro-life educational organization... (more)


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