Montana Attorney General to Appeal Judge’s Decision Allowing Assisted Suicide
by Steven Ertelt
December 10, 2008
Helena, MT (LifeNews.com) — Montana Attorney General Mike McGrath says he plans to file an appeal to overturn a state judge’s decision allowing it to become the third state to allow assisted suicide. McGrath also wants an injunction to prevent assisted suicides from happening until the Montana Supreme Court can adjudicate the appeal.
A patient who has since died and four doctors supporting his lawsuit went before the Montana First Judicial Court in Helena on October 10 and sought a declaratory judgment and injunctive relief to prevent them from being prosecuted should they move ahead with the suicides.
In a ruling last week, Judge Dorothy McCarter declared that the patient, Robert Baxter, and other mentally competent, terminally ill Montana residents can self-administer drugs given to them in prescriptions from willing doctors.
McGrath told the Associated Press that the Montana Supreme Court should have the final say and that Montana residents should be cautious because assisted suicide is not necessarily legal now.
"I would think that people should proceed very cautiously," McGrath said.
McGrath has filed legal papers asking Judge McCarter to delay implementation of the ruling until the state’s high court can weigh in on his appeal.
Kathryn Tucker, an attorney for the pro-euthanasia group Compassion & Choices, which was behind the lawsuit, thinks McCarter’s ruling makes assisted suicide legal and available immediately.
"The judge’s order was entered Friday. In my view it has declared that the Montana Constitution protects this choice and no physician in Montana could be prosecuted for writing a prescription for a patient," Tucker told AP.
Ironically, McGrath’s term as attorney general expires in January and he will become the Chief Justice of the Montana Supreme Court. He said he would recuse himself from the case should it come before him.
He said he is filing the appeal because he has a duty to defend state law, but the appeal doesn’t necessarily mean he opposes assisted suicide or thinks McCarter’s decision was wrong.
The Montana Supreme Court has already misused the privacy provision of the state constitution to allow for an unlimited right to abortion and legal experts and pro-life observers believed that 1999 ruling in the Armstrong case will open the door to assisted suicide.
McCarter’s decision takes that decision and extends the misconstruction of the privacy clause, which was intended to cover governmental intrusion on wiretaps, to allow assisted suicides.
Meanwhile, at least one state legislator is looking to propose legislation that would legalize assisted suicide in Montana.
Oregon and Washington are the only other states in the nation to have legalized assisted suicide and the practice is also legal in the Netherlands, Belgium, and Switzerland.
Washington voters approved a ballot measure in November to legalize assisted suicide and law will go into effect next year unless pro-life advocates take it to court.
In 1990, the U.S. Supreme Court ruled that patients had a right to refuse lifesaving medical treatment and, in 1997, the court ruled unanimously that there is no constitutional right to assisted suicide but that states may ban or allow the practice.
However, the court said nothing about whether states can allow the grisly practice.
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