Linda Heim knew her dad didn鈥檛 plan to wait for the cancer to kill him. For decades, he鈥檇 lived in Montana, which they鈥檇 thought was one of the few places where terminally ill people could get a prescription to end their life.
After two years of being sick, Heim鈥檚 dad got the diagnosis in 2019: stage 4 kidney cancer. His physician offered treatments that might extend his life by months. Instead, the 81-year-old asked the doctor for help dying. Heim said her parents left the appointment in their hometown of Billings with two takeaways: The legality of medically assisted death was questionable in Montana, and her father鈥檚 physician didn鈥檛 seem willing to risk his career to put that question to the test.
鈥淢y parents knew when they left there that was the end of that conversation,鈥� said Heim, now 54. 鈥淢y dad was upset and mad.鈥�
The day after the appointment, Heim鈥檚 mother went grocery shopping. While she was gone, Heim鈥檚 dad went to the backyard and fatally shot himself. (Heim asked that her father鈥檚 name not be published due to the lingering stigma of suicide.)
About a decade earlier, in 2009, the Montana Supreme Court had, in theory, cracked open the door to sanctioned medically assisted death. The court ruled physicians could if charged with homicide for prescribing life-ending medication.
However, the ruling sidestepped whether terminally ill patients have a constitutional right to that aid. Whether that case made aid in dying legal in Montana has been debated ever since. 鈥淭here is just no right to medical aid in dying in Montana, at least no right a patient can rely on, like in the other states,鈥� said former state Supreme Court Justice Jim Nelson. 鈥淓very time a physician does it, the physician rolls the dice.鈥�
Every session of the biennial Montana state legislature since then, a lawmaker has proposed a bill to formally criminalize physician-assisted death. Those who back the bills say the aid is morally wrong while opponents say criminalizing the practice would be a backstep for patients鈥� rights. But so far, lawmakers haven鈥檛 gained enough support to pass any legislation on the issue, though it has been close. stalled on March 1, on a split vote.
Even the terminology to describe the practice is disputed. Some say it鈥檚 鈥渟uicide鈥� anytime someone intentionally ends their life. Others say it鈥檚 鈥渄eath with dignity鈥� when choosing to expedite a painful end. Such debates have gone on for decades. But Montana remains the sole state stuck in a legal gray zone, even if the practice can still seem taboo in many states with clear laws. Such continued uncertainty makes it especially hard for Montana patients like Heim鈥檚 dad and their doctors to navigate what鈥檚 allowed.
鈥淒octors are risk-averse,鈥� said Dr. , director of the health law program at the University of Nevada-Las Vegas, who helped write clinical aid-in-dying published in the Journal of Palliative Medicine in 2016. 鈥淭he fear of being sued or prosecuted is still there.鈥�
Despite that, access to medical aid in dying is gaining momentum across the U.S. Outside Montana, eight states and the District of Columbia allow the life-ending aid 鈥� six of them since 2014. So far in 2021, legislators in at least have pushed aid-in-dying bills, most seeking to legalize the practice and some seeking to drop barriers to existing aid such as expanding which medical professionals can offer it. Many are repeat legalization efforts with some, like in New York, dating as far back as 1995. Only the Montana bill this year specifically sought to criminalize it.
North Dakota considered legislation to legalize medically assisted death for the first time. Rep. , a Democrat from Fargo who proposed the measure after hearing from a cancer patient, said she wasn鈥檛 surprised when the bill failed in February in . The state鈥檚 medical association said it was 鈥�.鈥� Angry voters called Anderson asking why she wanted to kill people.
鈥淏ut I heard from just as many people that this was a good bill,鈥� Anderson said. 鈥淭here is momentum to not let this concept go away.鈥�
Back in Montana, now retired state Supreme Court Justice Nelson said he has always regretted joining the majority in the case that allowed the practice because the narrow ruling focused on physicians鈥� legal defense, not patients鈥� rights. Having watched a friend die slowly from disease, Nelson, 77, wants the choice himself if ever needed.
Despite 鈥� or because of 鈥� the court decision, some Montana doctors do today feel that they can accommodate such patient decisions. For example, Dr. , a hospice and palliative care physician, said until she retired from private practice last year she considered patients鈥� requests for life-ending drugs.
Physicians who help in such cases follow well-established guidelines set by other states, Kirchhoff said. A patient must have six months or less to live 鈥� a fact corroborated by a second physician; can鈥檛 be clinically depressed; needs to ask for the aid; and be an adult capable of making health care decisions, which is determined by the attending physician. They must also administer the life-ending medication themselves.
鈥淵ou鈥檙e obviously not going to do a case that is vague or nebulous or has family discord,鈥� Kirchhoff said. 鈥淭he doctors who are prescribing have felt comfortable and that they鈥檙e doing the right thing for their patient, alleviating their suffering.鈥� Of her few patients who qualified for a prescription, she said, none actually took the drugs. Kirchhoff noted that, in some cases, getting the prescription seemed to provide comfort to her patients 鈥� it was enough knowing they had the option if their illness became unbearable.
For the past six legislative sessions 鈥� dating to 2011 鈥� a Montana lawmaker has proposed a bill to clarify that state law doesn鈥檛 allow physician-assisted death. Republican Sen. picked up that effort the past two sessions. Glimm said the current status, based on the more than decade-old court decision, sends a mixed message in a state that the Centers for Disease Control and Prevention as having among the nation鈥檚 highest suicide rates. Glimm said allowing someone to end their life because of pain from a terminal illness could normalize suicide for people living with depression, which is also a form of pain.
鈥淚t鈥檚 really hard because I do sympathize with them,鈥� Glimm said. 鈥淲hat it boils down to is, if you鈥檙e going to take your own life, then that鈥檚 suicide.鈥�
, president and CEO of national nonprofit Compassion & Choices, said the comparison to suicide is frustrating. 鈥淧eople who are seeking medical aid in dying want to live, but they are stricken with a life-ending illness,鈥� she said.
Glimm and his bill鈥檚 supporters say that some patients could be pressured into it by family members with something to gain, and doctors could prescribe it more often than they should.
But Callinan, whose group advocates for aid in dying, said that since Oregon first legalized it in 1997, no data has shown any merit to the warnings about abuse and coercion. showed no evidence of heightened risk of abuse within the practice for vulnerable populations such as the elderly. But critics have said states aren鈥檛 doing enough to track the issue.
By now, Leslie Mutchler, 60, knows most of the people on all sides of the debate after years of testifying in support of protecting aid in dying. Her dad, Bob Baxter, was a plaintiff in the case that eventually led to the 2009 Montana Supreme Court decision on medically assisted death. After leukemia whittled his body for years, he died in 2008 without the option, the same day a lower court ruled in his favor.
Mutchler said she didn鈥檛 understand how complicated the Supreme Court鈥檚 ultimate ruling was until her son TJ was diagnosed with terminal metastatic pancreatic cancer in 2016.
He was 36 and lived in Billings, Montana. By then, the 6-foot-5 man had lost 125 pounds off what had been a 240-pound frame. He couldn鈥檛 keep food down and needed a feeding tube for medicine and water. TJ Mutchler wanted to have the choice his grandfather never got. But when he went to his physician and asked for aid in dying, the response was it wasn鈥檛 legal. Eventually, Mutchler found a doctor to evaluate her son and write the prescriptions for phenobarbital and amitriptyline. TJ took the drugs more than two months later and died.
鈥淧eople contact me asking how to find someone and it鈥檚 difficult,鈥� Mutchler said. 鈥淭hat鈥檚 why people end up taking matters into their own hands.鈥� Research into terminally ill populations is limited, but published in 2019 found the risk of someone with cancer taking their own life is four times higher than the general population.
For Roberta King, another one of Baxter鈥檚 daughters, the ongoing fight over aid in dying in Montana means she knows every other winter she鈥檒l make the more than 200-mile round trip from her Missoula home to the state capital. King, 58, has testified against all six bills that sought to ban aid in dying following her dad鈥檚 case. She memorized a speech about how her dad became so thin after his medicine stopped working that it hurt for him to sit.
鈥淚t鈥檚 still terrible, you still have to get up there in front of everybody and they know what you鈥檙e going to say because it鈥檚 the same people doing the same thing,鈥� King said. But skipping a hearing doesn鈥檛 feel like an option. 鈥淚f something were to happen to this and I didn鈥檛 try, I would never forgive myself,鈥� she said.