The Montana legislature’s GOP supermajority is trying to criminalize doctors who provide aid to dying patients who wish to end their suffering with a prescribed, self-administered medication. SB 210 would end legal medical aid in dying as set by the 2009 Montana Supreme Court’s Baxter v. State decision.
Despite its detractors, for over 14 years the Baxter decision has worked without problems by allowing Montanans suffering terrible, life-ending illnesses, to obtain medical aid in dying from compassionate physicians. There is not a scintilla of evidence in Montana, or in any other state allowing medical aid in dying, that the right of a patient to end his or her suffering has been abused.
Medical aid in dying has strong public support, yet every legislative session since 2009 has tried to take this right from patients enduring life-ending illnesses, suffering terrible pain and disability, and losing not only their bodies, but in many cases, their spirits, dignity and autonomy. Article II, the “Declaration of Rights” in Montana’s Constitution guarantees individuals have the right to end their lives with the aid from their physicians in Sec. 10, the “Right of Individual Privacy,” and Sec. 4, the “Right of Inviolable Human Dignity.”
It is also a natural right with which each of us is born. It is a right to make our own moral decisions; and it is an elemental part of our individual sentience and consciousness. As author Bill McKibben wrote: “The pattern of our lives is set by the span we hope to live . . . and if we’re brave enough to acknowledge it, we can prepare for our approaching death.” For those suffering an incurable illness and preparing for approaching death, determining when their own mortal existence should come to a dignified and peaceful end, is that person’s final, fundamental right.
Unfortunately, the Baxter decision did not recognize this as a constitutional right, but rather adopted a statutory approach, which the Republican supermajority wants to now criminalize. Had the Court determined the right to be constitutional, we would not be fighting this bill that strips patients of their right to medical aid in dying – not by targeting patients, but by criminalizing compassionate physicians who prescribe a self-administered lethal drug to end their patients’ suffering.
Ironically, Montana’s governor and legislature congratulate themselves on keeping government out of the private lives of Montanans. Their stated mission is to support the Constitution, the rule of law, and policies that promote liberty. They supported those who claimed individual freedom allowed them to refuse Covid vaccinations and masks, despite the clear threat to public health.
In his State of the State address, Governor Gianforte said: “While the American Dream might be fleeting in some states, it’s alive and well here in Montana because we embrace the freedoms that are foundational to who we are as Americans.” Yet, SB 210 will take away the freedom of dying Montanans to end their suffering.
Despite the Governor’s claim, freedom is fleeting in Montana when the concept of “freedom” is defined by legislators’ religious beliefs—their arrogance to claim they know the mind of God—and using authoritarian power to force their beliefs on any who choose to believe differently. Legislators’ freedom actually inserts government between patients and their physicians–an Orwellian freedom of Big Brother, grounded in hubris, hypocrisy and the rule of lie.
If legislators truly believe in “freedoms that are foundational to who we are as Americans” SB 210 should die the peaceful and dignified death it would deny to those suffering incurable illnesses who claim their personal freedom and right to medical aid in dying.
James C. Nelson is a retired lawyer and former Supreme County Justice who lives in Helena.
