Medical Aid in Dying and Knowing the Mind of God

Once again, the GOP supermajority/Freedom Caucus is taking a run at criminalizing doctors who provide medical aid to a dying patient, enabling that person to end his or her own suffering, and life, with a self-administered medication prescribed by the physician. SB 210 is the bullet that ends the statutory approach to medical aid in dying set out in the Montana Supreme Court’s 2009 Baxterdecision.

Despite its detractors, we know that over the intervening 14 years since the Supreme Court’s decision in Baxter v. State,[1] Montanans suffering from horrible and debilitating life-ending illnesses have successfully sought and have obtained medical aid in dying from various compassionate physicians in this State.

Baxter has worked successfully and as intended—and without the parade of horribles predicted by those who would interfere with the patient’s most personal end-of-life decision.  Indeed, there is not a scintilla of evidence in Montana, or in any other state allowing medical aid in dying, for that matter, that the right of patient to end his or her suffering through medical aid in dying has been abused. Medical aid in dying has strong public support despite legislative attempts in every session since 2009 to take this right from the dying patient.

Know that these are men and women who are enduring the maelstrom of a life-ending illness; who are suffering terribly from pain and disability; who are not only losing their bodies to their illness, but—and in many cases, worse—their spirits, their dignity and their autonomy, cultivated and treasured over a lifetime.  These patients do, in my view, and let me repeat, do have an individual constitutional right to end their lives with the aid from their physicians.  This right is guaranteed by and grounded in Montana’s Constitution at Article II, section 10 (right of individual privacy) and Article II, section 4 (right of inviolable human dignity); it is a natural right grounded in the attributes of humanness with which each of us is born; it is a right grounded in our ability to make and take responsibility for our own moral decisions; it is an elemental part of our individual sentience and consciousness.

As author Bill McKibben states in his book, Falter,[2] “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 from an incurable illness, who expect to die shortly, preparing for approaching death, determining when her or his own mortal existence should come to a dignified and peaceful end, is that person’s final, fundamental right to exercise.

However, the Baxter decision did not recognize this right as one grounded in the Constitution, but, rather, set out a statutory approach, which the supermajority/Freedom Caucus now wants to dismantle and criminalize.  In my view the Court made a mistake in not simply affirming the District Court’s constitutional approach; had it done so, we would not be fighting SB 210 now.

SB 210 will effectively strip these incurably ill patients of their right to medical aid in dying. Not by punishing these men and women directly, but rather by punishing and criminalizing the compassionate physicians who aid these patients in their decision to self-administer a prescribed lethal drug to end their suffering.

Ironically, Montana’s present Administration and legislature have prided themselves on keeping government out of the private lives of Montanans.  Indeed, the present supermajority has joined with the Freedom Caucus whose stated mission is to support open, accountable and limited government, the Constitution and rule of law and policies that promote liberty. The Administration and majority Party supported those persons who claimed the individual freedom to refuse Covid vaccinations and mask-wearing despite the threat that support posed to public health.  The Governor and legislature have proposed reducing government regulation of businesses and extractive industries.

Indeed, in his recent State of the State address, Governor Gianforte stated:  “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, here we are with SB 210, another piece of proposed legislation to take away the freedom and liberty interest of dying men and women to end their suffering and to die a peaceful and dignified death through medical aid in dying.

Apparently, contrary to the Governor’s remarks, “freedom” is, indeed, fleeting in this State—it is a freedom defined by the religious beliefs of those who have the arrogance to claim that they know the mind of God and have the authoritarian power to force their personal beliefs on those who choose to believe differently; it is the sort of freedom that permits the heavy hand of government to force itself upon the medical and healthcare decisions of patients and their physicians; it is the sort of freedom that only those in power can exercise; it is the Orwellian freedom of big brother.  In fact, it is a freedom grounded in hubris, hypocrisy and the rule of lie.

If this supermajority/Freedom Caucus truly believes in “freedoms that are foundational to who we are as Americans” then this legislature will allow SB 210 to die in committee the sort of peaceful and dignified death that this legislation would deny to those suffering from an incurable illness, who expect to die shortly and who claim their freedom, their right to medical aid in dying.


[1] 2009 MT 449, 354 Mont. 234, 224 P.3d 1211

[2] Falter, Has the Human Game Begun to Play Itself Out, Bill McKibben, Henry Holt and Company, New York (2019), pp. 181, 188.

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.