Montana Supreme Court Holds Hearing on Case to Allow Assisted Suicide

Bioethics   |   Steven Ertelt   |   Sep 2, 2009   |   9:00AM   |   WASHINGTON, DC

Montana Supreme Court Holds Hearing on Case to Allow Assisted Suicide

by Steven Ertelt Editor
September 2
, 2009

Helena, MT ( — The Montana Supreme Court held a hearing today on a case that could make the state the third to allow assisted suicide. The state’s high court could open the door for a more permissive allowance of the grisly practice than either Oregon or Washington, which currently allow doctors to help patients kill themselves.

The case is an appeal of a ruling District Judge Dorothy McCarter issued last December misusing the privacy clause of the state constitution to allow people to kill themselves with the help of a physician.

Acting Chief Justice William Leaphart indicated the court would take the case under advisement and it did not issue a decision.

During the arguments, Anthony Johnstone, the state solicitor at the Montana attorney general’s office, opened the case for the state.

He said that if assisted suicide was a constitutional right it would not be limited to only the terminally ill and that no limits would be in place to prevent abuses, as there are in Washington and Oregon. Even then, pro-life advocates have noted several problems that have occurred following allowing it there.

Johnstone also said that physicians who don’t know a patient who wants to kill himself could write a prescription for a lethal drug to do so without previously having a doctor-patient relationship.

The judges asked questions that made it appear their mind may have already been made up.

Justice Neilsen asked, "What happens if a competent person goes to a store and buys a gun and tells the person selling it to them,’I am going to kill myself.’ Does that count as homicide? The state’s attorney says it could be homicide."

Attorneys for Compassion & Choices, the pro-euthanasia group behind the lawsuit, asked why the state should be allowed to argue that people’s lives ought to be continued beyond the point at which they want to do.

The attorney asked: If doctors can give people enough medicine to dull the pain, why can’t they take it further to the point of death. He said if we know the person is going to die, we are not taking their life away.

Montana Attorney General Steve Bullock, in documents filed with the court, said the issue of assisted suicide should be decided by the voters or the state legislature — not the courts.

"The questions posed are important, and each person’s reactions to them are deeply felt, but the answers are not to be found anywhere in the history, text, or interpretation of the Montana Constitution," Bullock says.

"Plaintiffs debate at length the semantic questions surrounding the unspecified acts they call ‘aid in dying.’ This Court, however, must confront a legal question that euphemisms cannot illuminate: whether the homicide laws are unconstitutional across a broad set of vaguely defined circumstances," he adds.

"Plaintiffs’ principle would extend beyond physician-assisted suicide to medical marijuana (as a constitutional matter), the sale of organs, and human cloning. This absolute conception of liberty is alien to this Court’s privacy jurisprudence," he says.

Fr. Frank Pavone, the national director of Priests for Life, weighed in on the case after the oral arguments were completed.

"Assisted suicide is an act that violates the victim’s dignity," he told

"It is a declaration that a person’s life is worthless and devoid of respect," he said. "If the Montana constitution states that the dignity of every human is inviolable, then there can be no room in that constitution for the protection of a fabricated ‘right’ that threatens the very existence of the disabled and medically vulnerable."

Oregon became the first state allowing assisted suicide following two statewide votes and legal battles.

Washington voters made the Pacific coast state the second last November after approving I-1000, a statewide ballot initiative that saw euthanasia proponents vastly outspend pro-life groups, doctors and disability rights advocates.

Sensing an opportunity to advance assisted suicide further, given the state’s expansive constitution with language promoting privacy and individual rights, euthanasia advocates filed a case for a disabled man in Montana.

Robert Baxter won his case at the lower court level and a decision from the left-wing Montana Supreme Court could open up assisted suicide to the rest of the state or shut it off completely.

The concern is that the state’s high court has already misused the privacy provisions of the state constitution — meant to oppose government snooping — to allow an unlimited right to abortion. The court could very well justify unlimited assisted suicide under the same privacy clause.

Because McCarter’s decision is in effect for the part of the state covered her district court, some Montana residents currently have the ability to get their doctor to help them kill themselves. However, no one has used the temporary situation to do so, saying they can’t find physicians willing to write such a prescription.

Former Montana Attorney General Mike McGrath had asked Judge McCarter for a temporary injunction preventing assisted suicides from occurring while the appeal proceeds, but she declined.

Wesley J. Smith, an attorney who is a leading bioethics watchdog, condemned McCarter’s refusal to stop assisted suicides while the case moves along.

"When a very controversial ruling comes down from our rulers in black robes, it is customary that pending an appeal to the highest court, the decision be stayed–that is suspended–until the final decision from a higher court is in," he said.

"Judges are becoming too arrogant for our good as a nation," Smith lamented. "Culture-rending changes in law and morality should not be decided undemocratically by promoting a judge’s own ideology through wrenching and twisting constitutional terms to mean things that were not intended when they were enacted."

The case has also taken an odd twist as McGrath has since been sworn in as the chief justice of the Montana Supreme Court, but has said he will recuse himself from hearing the case.

So far, the court has received 19 amicus briefs, including one from attorneys with the Alliance Defense Fund, a pro-life group who filed their brief in April.

"Legalizing assisted suicide diminishes compassionate treatment of pain because…assisted suicide encourages the elimination of patients themselves rather than of their suffering,” the brief states. “The dignity and privacy rights of vulnerable patients require that they not be propelled into a society where they can be successfully pressured to die. Their lives are valuable and protectable by law.”

“Doctors are licensed to heal, not to kill. It should seem obvious, but the law should never allow private individuals to poison one another," ADF senior legal counsel Steven H. Aden told

ADF filed its brief on behalf of the Family Research Council, the American Association of Pro-Life Obstetricians and Gynecologists, the Catholic Medical Association, and numerous Montana physicians.

Following the initial decision, the Montana Medical Association indicated it refused to get involved and came under fire for not submitting an amicus brief supporting McCarter’s attempt to overturn the ruling.

Related web sites:
ADF brief –
Alliance Defense Fund –

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