HELENA – Montana legislators had been asked to choose between two proposed bills in creating a physician-assisted suicide law: Ban the practice altogether or create regulations for doctors and terminally ill patients to follow.
Now it appears they’ll do neither, leaving the state in the same legal limbo that has existed since a Montana Supreme Court ruling effectively legalized the practice more than a year ago.
Both bills were tabled in committee this week, all but killing the measures for the 2011 session — and likely for at least the next two years. The final nail was hammered Thursday when Sen. Greg Hinkle attempted to bypass the judiciary committee and bring his bill to ban assisted suicide to the full Senate.
His colleagues overwhelmingly voted him down, 35-15.
Either measure conceivably could be brought back this session, but the sponsor of the other bill, the one that would have created standards and regulations for assisted suicide, said he believes that would be highly unlikely.
“That ship has sailed,” said Democratic Sen. Anders Blewett, a Great Falls attorney.
The Supreme Court ruled on Dec. 31, 2009, in the case of Baxter v. Montana, there is nothing in state law that prohibits physician-assisted suicide — but not ruling on whether the practice is a constitutionally protected right. The decision effectively made Montana the third state to allow assisted suicide along with Oregon and Washington, but left it up to the state Legislature to create laws to regulate it.
Advocates applauded the court’s decision, saying it gave terminally ill patients the legal grounds to request medication to end their lives. But the ruling left gray areas: physicians feared prosecution because of the lack of standards and regulations and lawmakers worried ill-meaning family members could coerce patients into taking their lives.
Plus, there is no way to track how many people have ended their lives this way. The advocacy group Compassion and Choices has said more than one patient died with the aid of a physician since the Supreme Court decision, but declined to say how many, where, when or which doctors participated.
The ambiguous status quo has led some lawmakers opposed to assisted suicide to a completely different interpretation of the Supreme Court decision.
“The state of Montana policy is still against suicide under the Baxter decisions as I read it,” said Republican Sen. Jeff Essmann.
Compassion & Choices, which backed Blewett’s bill, said that while having a law clarifying the practice would be helpful, there is no question that the court’s ruling legalized assisted suicide.
“It’s still a legal option for patients that meet the criteria of being terminally ill,” spokeswoman Jessica Grennan said. “We’re excited that we’re able to keep that as a right for patients in Montana.”
Physicians can follow state law dealing with the rights of the terminally ill, Grennan said. That law does not specifically address physician-assisted suicide, but it does provide immunity for physicians for withholding or withdrawing life-sustaining treatment for a terminally ill patient.
Blewett agreed with advocates that terminally ill patients will still be able to end their lives despite the Legislature’s inaction.
“The situation we have is not ideal for physicians or patients with terminal conditions but the current system will work for people who need relief at the end of their lives,” he said.
Blewett’s bill would have required a doctor to diagnose a patient as being terminally ill and the patient to make voluntary oral and written requests for a lethal prescription of medication. The request would have had to be signed by two witnesses and the patient also would have had to get a second doctor’s opinion.
Hinkle’s bill, on the other hand, would have prohibited the practice outright. He did not answer messages seeking comment Thursday, but he has said he believes no regulations would be able to prevent elder abuse for monetary reasons.
Helena lawyer Ron Waterman cautioned lawmakers in a committee hearing Wednesday that undoing the Baxter decision would probably be thrown out by the courts anyway. He told the panel that a lawsuit would almost certainly quickly follow passage.
Jean Branscum, executive director of the Board of Medical Examiners, said the board hasn’t taken a position.
“They made the decision they were going to monitor this through the end of the legislative session and then determine any necessary steps needed to further evaluate the court decision,” Branscum said.