James C. Nelson, BridgeTower Media Newswires
Courthouse News Service reported last month that the “Massachusetts Supreme Court seemed receptive … to becoming the first court in the country to establish a constitutional right” for terminally ill adults to medical aid in dying to peacefully end unbearable suffering.
Specifically, the Supreme Judicial Court heard oral arguments in Kligler v. Healey, a suit filed by a retired Massachusetts physician, Dr. Roger Kligler — who has stage 4 prostate cancer — and Dr. Alan Steinbach against Attorney General Maura T. Healey, asserting that terminally ill adults have both a constitutional and common law right to medical aid in dying.
The SJC could issue a ruling in the case any day between now and June.
The Kligler case has similarities to the Baxter v. Montana case that the Montana Supreme Court ruled on in 2009 when I served as an associate justice on the court.
The plaintiffs in both cases were represented by the end-of-life care advocacy group Compassion & Choices and made similar claims: 1) that there is a state constitutional right to medical aid in dying, and 2) that there is no state statute that prohibits this compassionate option.
In Baxter v. Montana, District Court Judge Dorothy McCarter ruled that Montanans’ constitutional rights of individual privacy and inviolable human dignity protected the right of incurably ill patients to end their physical and mental suffering with medical assistance of their physicians.
In contrast, the Montana Supreme Court decided on a narrower interpretation of the law. After reviewing all of the Montana statutes, we concluded that individuals with incurable illnesses, who were going to die imminently with great suffering, had a legal option to seek and receive their physician’s assistance to die peacefully.
Basically, the court ruled that Montana’s criminal consent statute, read in conjunction with Montana’s Terminally Ill Act, provided a consent defense to a charge of homicide filed against the physician who prescribed the aid-in-dying medication.
The problem with this ruling is that the prescribing physician is playing a legal version of Russian roulette by writing a prescription for her patient. Even if she would be acquitted, she would still have to defend herself if a county attorney decided to prosecute her for writing the prescription.
In retrospect, we should have ruled that terminally ill adults who can self-ingest the prescribed medication have a constitutional right to medical decision-making that would protect their right to request, and if qualified, receive such treatment from a physician.
Since we decided Baxter on statutory grounds, the law is explicit that the Montana Legislature has the authority to amend or pass new laws to overturn our ruling.
Sadly, that is exactly what the Montana Legislature has tried to do for the last 13 years since our Baxter ruling, including introducing legislation to criminalize and imprison physicians who provide medical aid in dying to terminally ill patients who request this gently dying option.
But, thanks to persistent vocal outrage from numerous doctors, terminally ill patients and their loved ones, compassionate voters and lawmakers, as well as media attention, all of the legislative attempts to reverse Baxter have failed.
In hindsight, I deeply regret not pushing the court to rule on constitutional grounds, rather than on statutory grounds, in the Baxter decision. It was one of the biggest mistakes of my nearly 20-year judicial career.
Back then, I decided not to make the perfect the enemy of the good. Frankly, I was worried that it would be tough enough to garner a majority of the court to issue a favorable statutory ruling.
But I wish that I had simply remained steadfast in my ironclad belief: that our Supreme Court should have simply ratified Judge McCarter’s ruling on the constitutional bases she determined. It wasn’t that we were wrong. We were half right, but Judge McCarter was 100 percent correct.
In Bill McKibben’s 2019 book “Falter, Has the Human Game Begun to Play Itself Out,” the author states: “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 and are preparing for approaching death, determining when her or his own mortal existence should come to a peaceful end is that person’s final, fundamental right to exercise.
It is a right that society must respect and that we must fight to preserve.
