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Fight to the end

Will ruling be last word on physician-assisted death?



Bill Clarke still occasionally refers to his friend Janet Murdock in the present tense. It's a jarring slip, considering her death last summer launched Clarke into the state's heated right to die debate.

Murdock died June 14, 2009, at the age of 67, from a terminal case of ovarian cancer. She'd completed chemotherapy in early 2008, but her cancer count rose steadily after initial treatment. Clarke says when faced with the option of continuous chemo treatments, Murdock found the pain and dependence too intolerable for the long-term. He adds she'd accepted death and even hosted a living wake for herself in Bonner Park in July 2008.

"It's hard to appreciate how much people liked Janet," Clarke says. "She was very forward about what she would say, which would get her in trouble because she would say what she thought. When she got to the nursing home, I told her, 'Janet, you can't say what you think all the time.' There was a little nursing assistant in the room at the time who said, 'That's not true. That's why we all love her, because she's so real.'"

The Montana Supreme Court's ruling last week to uphold a Montanan's right to physician-assisted death came six months too late for Bill Clarke, who lost one of his closest friends to ovarian cancer in June. - PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters
  • The Montana Supreme Court's ruling last week to uphold a Montanan's right to physician-assisted death came six months too late for Bill Clarke, who lost one of his closest friends to ovarian cancer in June.

Murdock spoke to physicians in her final months hoping someone would agree to help her end her life. Clarke says none were ready to risk their practices over the controversial procedure, despite a 2008 decision from a Montana district court judge supporting a patient's right to die. Instead, he watched as one of his closest friends consciously stopped eating and drinking and wasted away, spending her final days in extreme pain.

"Janet's life suffered a lot anyway," Clarke says. "It was cruel and unusual and nasty to make her suffer like that at the end. When she said, 'I've had enough, I want to go,' we said, 'You know, that's fine. We'll help you do this. We'll be there with you, we'll comfort you, we'll have your family here, anything you want.' But no, they made her starve herself to death."

While it was too late to help Murdock, Clarke found some solace in the Montana Supreme Court's decision last week to uphold the district court ruling in support of physician-assisted death (PAD). The court stated it found nothing in Montana statutes to deem the practice illegal, but stopped short of determining whether the Montana Constitution guarantees the right. Montana is the third state to allow physicians to prescribe life-ending medication to mentally competent, terminally ill patients, following Oregon and Washington.

Groups on both sides of the right-to-die debate quickly responded to the ruling. PAD supporter Compassion & Choices said the Montana Supreme Court is "the first state high court to find protection of this choice." It's an option the group feels is long overdue.

But opponents of PAD believe the nature of the court's ruling on statutory grounds, not constitutional ones, leaves the issue open for revision in the next legislative session. The Montana Family Foundation—a strong voice against PAD—went so far as to call the decision a "partial victory" for that very reason, stating it's "definitely not what we wanted, but not as bad as it could have been."

The Montana Catholic Conference (MCC) viewed the decision as bittersweet. While the state's two Roman Catholic bishops were disappointed, MCC Executive Director Moe Wosepka says the church is already working on a plan to counter the ruling.

"Those people who are opposed to legalized physician-assisted suicide in the state of Montana will be joining together to work on options that we can pursue in the next legislative session," Wosepka says. "This will be a very high priority for us, in fact."

Rep. Dick Barrett, D-Missoula, anticipates multiple pieces of PAD legislation appearing next session. Barrett unsuccessfully introduced a bill aimed at clarifying the previous district court ruling in 2009, but it never made it to a vote. He believes a similar bill will be necessary in 2011.

"I know there will be legislation—I will introduce legislation if nobody else does—that's intended to address some of the concerns that people inevitably have about how this should be done in practice," Barrett says.

Barrett has no idea how strong the opposition to PAD could be during the next session, but those supporting the practice believe the chances of a serious challenge are highly unlikely.

"The court decided there was nothing inherently different about a decision to ask your doctor for life-ending medication than a decision to ask your doctor to take away your dialysis or ventilator," says Compassion & Choices President Barbara Coombs Lee. "I think it would be very difficult for the Legislature to essentially tell dying Montanans, 'Well, the court felt you were competent and capable of making those decisions, but we do not.'"

Coombs Lee realizes that not everyone who pursues PAD will take the medication. According to Oregon's Public Health Division, one third of the patients who acquire life-ending medication from a physician never use it. Oregon legalized PAD in 1998, and 341 people have enacted the law since.

"Some number will ask for the prescriptions, some smaller number will fill the prescriptions, and some much smaller number will ingest the medication," Coombs Lee says. "Patients don't want necessarily to take the medication. They want to have the medication so that if their worst nightmare happens, they have an escape route."

Although the decision comes too late for Murdock, Clarke says he'll continue actively supporting PAD in Montana by sharing her story.

"I would do anything that was necessary," Clarke says. "The saddest thing is I wish I could find something to say to people that would open their eyes on this and get them to just be more rational about it."

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