Both supporters and opponents of physician-assisted dying anticipated that Judge Dorothy McCarter's ground-breaking ruling that the Montana constitution guaranteed terminally-ill, mentally-competent adults the right to end their own lives would be appealed to the that state's highest court. In her ruling, handed down on December 5, 2008, McCarter wrote that in Montana, the "constitutional rights of individual privacy and human dignity, taken together, encompass the right of a competent terminally-ill patient to die with dignity." The plaintiff in that suit, seventy-six year old truck driver Robert Baxter of Billings, lost his twelve-year battle with lymphocytic leukemia that same day, without learning of his legal victory.
This week, the Montana Supreme Court hears oral arguments in the state's appeal of that seminal verdict. Since the issues arise solely under the state constitution, no further appeals are possible -- so a ruling to uphold the lower court's decision will enshrine Baxter v. Montana as the case that, for the first time, guarantees the citizens of a state the right to aid in dying. While Oregon's Death with Dignity Act (1994) and Washington's Initiative 1000 (2008) grant those state's inhabitants the right to end their own lives, such statutes could be revoked by legislatures at any time. In contrast, a Montana ruling favoring aid in dying would require a constitutional amendment to overturn -- an unlikely prospect. However, even a decision to affirm Judge McCarter may prove a Pyrrhic victory for supporters of Baxter's cause. As long as no Montana doctors are willing to prescribe lethal medication to patients in need, any "right" to die will offer little palliation for the ravages of terminal illness.
Janet Murdock learned this awful lesson the hard way. The sixty-seven year old Missoula woman, who suffered from advanced ovarian cancer, initially believed that Judge McCarter's ruling would guarantee her the death that she desired. Instead, she spent her final months trying to find a local doctor willing to help her die -- eventually giving up food and water when no physician in the entire state proved willing to supply her with a lethal dose of medication. Her desperate efforts certainly were not aided by the Montana Medical Association, which issued a policy documented declaring aid in dying a violation of professional ethics, or that group's president, Kirk Stoner, who has championed an absolutist, anti-assistance position on the issue. In response, before her death in June, Murdock released a statement that read: "I feel as though my doctors do not feel able to respect my decision to choose aid in dying...Access to physician aid in dying would restore my hope for a peaceful, dignified death in keeping with my values and beliefs." The challenge for those on both sides of this issue is how to balance the "values and beliefs" of desperate patients like Murdock and Baxter with those of medical professionals who are personally opposed to easing their deaths. Our society will soon be forced to adjudicate these competing claims: Which right trumps? The patient's right to die or the doctor's right to follow her conscience?
The ongoing public debate over "conscience" clauses, which permit individual health care providers to opt out of medical practices to which they are morally opposed, has until now been confined primarily to issues of reproductive freedom. Pharmacists who refuse to fill prescriptions for emergency contraceptives have become lighting rods in the debate over religious freedom and women's health. A critical shortage of abortion providers has led some progressive commentators, including myself, to call for mandatory abortion training in obstetrics residency programs. However, even those policy-makers who support conscience exemptions in these areas should be able to recognize the fundamental difference between pharmacists who refuse to fill birth-control prescriptions and the physicians who would not help Janet Murdock to die. A handful of rogue druggists may certainly impede access to contraception -- but all pharmacists do not oppose RU-486. A shortage of abortion providers, while deeply troublesome, is not the same as a complete, state-wide absence of abortion providers. If Montana doctors can act on their consciences, patients wishing to die will not merely have to endure additional burdens to vindicate their rights. Rather, they will have absolutely no means to effectuate them. Much as constitutional guarantees of press freedom do little good for prospective publishers if they do not have access to paper or ink, the right to aid in dying is strikingly useless if nobody is willing to help.
The legal profession long ago recognized that if our judicial system is to function meaningfully, all criminal defendants -- even the most distasteful -- should be entitled to representation. As a result, states provide attorneys for those who cannot find them on their own, and judges occasionally compel individual members of the bar to represent the interests of unpopular defendants. In contrast, doctors have rather stubbornly clung to historic notions of professional autonomy. These arguments might hold more sway if physicians operated in an open marketplace and if anyone with the appropriate knowledge and skills could practice medicine in the United States. In reality, medical licenses are a limited commodity, reflecting an artificial shortage created by a partnership between Congress and organizations representing physicians -- with medical school seats and residency positions effectively allotted by the government, much like radio frequencies. Physicians benefit from this arrangement in that a smaller number of physicians inevitably leads to increased rates of reimbursements. There's nothing inherently wrong with this arrangement. However, it belies any claim that doctors should have the same right to choose their customers as barbers or babysitters. Much as the government has been willing to impose duties on radio stations (eg. indecency codes, equal time rules) that would be impermissible if applied to newspapers, Montana might reasonably consider requiring physicians, in return for the privilege of a medical license, to prescribe medication to the dying even if they intend to end their own lives.
Mandating that physicians aid in dying should be a last resort. First, Montana should explore other, less-invasive means of ensuring that all citizens are guaranteed their constitutional right to die. One solution might be hiring a handful of publicly-salaried physicians, recruited from out-of-state, whose primary responsibility would be to offer palliative services, including lethal prescriptions, to the terminally ill. Another possibility would be easing licensure requirements for out-of-state physicians, particularly those from Washington or Oregon, who come to Montana on a short-term basis solely for the purpose of helping the terminally ill to die. Finally, the state might simply scrap its general requirement for physician-issued prescriptions in cases of terminal illness, instead providing both drugs and instructions directly to dying individuals or their families. In short, the state should think creatively about ways to ensure that the terminally ill do not suffer without taking the drastic step of forcing doctors to assist in dying.
The right to die is not an abstract principle. This right -- or its absence -- has a profound effect on the fundamental welfare of nearly every individual and family in the nation during the most vulnerable moments of their lives. If the Montana Supreme Court guarantees citizens the right to aid in dying, and I am both hopeful and confident that the court will do so, then it is also incumbent upon the justices to ensure a mechanism by which patients can exercise their rights. To do otherwise -- to offer a theoretical right to die that cannot be meaningfully exercised -- will be both a hollow gesture and a cruel taunt to the terminally ill.