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Showdown in Montana

While the nation rightly watches the debate over health-care reform to ensure it does not promote euthanasia by stealth, a state court case in Montana may have a more significant effect in promoting the spread of euthanasia and physician-assisted suicide.

A non-lawyer reading this may be forgiven for thinking the Supreme Court has already decided this issue. Didn’t the Court rule in 1997 in Washington v. Glucksberg that there was no right to assisted suicide? Yes, it did, but in so ruling the Court was interpreting the national Constitution. This case involves Montana’s own state constitution.

The Montana Constitution contains provisions guaranteeing privacy and respect for human dignity. Those in favor of physician-assisted suicide argue these provisions give a right to it. This is odd reasoning since the U.S. Supreme Court, the author of the infamous “mystery of the universe” passage in the Casey decision interpreted “privacy” and “liberty” under the U.S. Constitution to include a right to abortion, but expressly refused to extend that privacy-based rationale to physician-assisted suicide.

The lower court in Montana held, “The Montana constitutional rights of individual privacy and human dignity, taken together, encompass the right of a competent terminal patient. . .[to] use the assistance of his physician to obtain a prescription for a lethal does of medication.”

The right created is broad: anyone who survives on “life-sustaining medication” would be entitled to physician-assisted suicide. This includes diabetics taking insulin, anyone on blood pressure medication, and asthmatics with inhalers. The determination that someone is a “qualified patient” may be made by the very person prescribing the lethal drug to “aid” in the dying, a clear conflict of interest. There is no assurance to health care providers who object to assisting suicide that they will not be forced to participate.

There are no safeguards to ensure persons requesting suicide are not suffering from a treatable mental illness. Nearly all requests for assisted suicide are attributable to depression and are withdrawn upon proper treatment. The Royal College of Psychiatrists in England observed in 2006 that systematic studies have “clearly shown” the wish for assisted suicide among terminally ill patients is “strongly associated with depression.” They estimate 98-99 percent of those patients will subsequently change their minds about wanting to die once treatment for depression occurs. Many doctors are not equipped to recognize or treat depression, however, and it is often improperly dismissed or considered untreatable. Patients whose requests for assisted suicide are attributable to untreated clinical depression are not exercising an autonomous choice, and are made only more vulnerable to their illness by the District Court ruling.

Legalizing assisted suicide will actually diminish compassionate treatment of pain. While palliative care is available and effective, assisted suicide encourages the elimination of patients themselves rather than of their suffering. A study conducted by Oregon Health and Science University researchers has found a deterioration in the quality of palliative care since assisted suicide was legalized. Dr Erik Fromme, who led the research said, “What this study did for me was contrast our view of things versus what’s actually happening.” And the results of the study, “are not necessarily what people wanted to hear.” This has added significance since Oregon, where the study was done, was the first state to legalize physician-assisted suicide, with Washington following suit last year. One hopes the Montana Supreme Court takes notice, since the “exemplary” experience in Oregon was so heavily relied upon by the plaintiffs in the lower court.

The Montana District Court opinion recognized the state’s compelling interest “in protecting patients and their loved ones from abuses, in protecting life in general, and in protecting the integrity and ethics of the medical profession.” But it held these interests could still be protected after mandating legalization of assisted suicide.

The experience of the Netherlands conclusively demonstrates otherwise. Once allowed, assisted suicide cannot be contained and euthanasia is inevitable. Even the “regulated” assisted-suicide regime engenders monumental abuses. The Dutch purport to allow euthanasia and assisted suicide only at the “explicit request” of the patient to put an end to “unbearable suffering.” But evidence shows the guidelines and limitations have been widely flouted. Sick patients are now urged to let a doctor know if they do not wish to be euthanized when they become incompetent.

In 1990, a government sponsored survey granting immunity and anonymity to participating physicians revealed no fewer than 1000 patients were given a lethal injection without having made an explicit request. In 2005, a similar study documented at least 500 patients as known to have been involuntarily euthanized. While defenders of euthanasia had stressed that killings not made by explicit request would be prosecuted as murder, the government has instead condoned these killings and described them as “care for the dying.”

Pro-euthanasia forces have long hoped for a judicial decision legalizing it. But court after court, from Florida to Alaska to the U.S. Supreme Court, has not risen to the bait. These courts have recognized that if any decision is for the people to make surely it is one which authorizes some people to kill others. What will Montana do? Predictions based on oral arguments are notoriously unreliable, but there were some encouraging signs on September 2 when the case was argued. We should know within 120 days, the time within which the Montana Court customarily renders its decisions.

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.