[ModernMedicine] The Montana Supreme Court will decide whether the state constitution protects physicians from prosecution if they prescribe lethal medication to terminal patients who ask for it.

The court heard oral arguments earlier this month in a case stemming from a dying man’s request to control the timing and manner of his death, arguing that Montana residents have a right to do so that’s rooted in the state constitution’s strong language recognizing and protecting privacy and individual dignity.

As the justices prepared to decide the question, the state’s medical community had yet to take sides. Neither the Montana Medical Association nor MHA: an Association of Montana Health Care Providers was represented in more than 20 amicus briefs filed with the court.

“Our board just decided to take a wait-and-see attitude and not get involved in filing an amicus,” says John Flink, vice president of government affairs for the MHA, whose members include hospitals, nursing homes and hospices. “In terms of taking steps or adopting policies to deal with it, our approach is to wait and see what the court rules.”

Neither the president nor the CEO of the medical association returned calls requesting comment. The American Medical Association’s Code of Medical Ethics calls the practice of physician-assisted suicide “fundamentally incompatible with the physician’s role as healer.”

Montana trucker Robert Baxter, suffering from lymphocytic leukemia, filed a lawsuit challenging the state’s homicide statute in 2007. He was joined in the lawsuit by four physicians—none of whom treated Baxter but who said they had been put in the position of refusing the wishes of patients for fear of prosecution—and Compassion & Choices, an organization that advocates physician-assisted dying as an option in end-of-life care.

Baxter died from his disease at age 76 on Dec. 5, 2008, the same day he won his case in the 1st Judicial District Court in Helena.

In arguments before the state Supreme Court on Sept. 2, Justice James Rice asked the plaintiffs’ lawyer, Mark Connell, how the court should balance the state’s interest in protecting its citizens with allowing individuals to control their suffering.

Connell answered that state law already reflects the duty of medical providers to alleviate suffering in ways that hasten death. “This happens every day in our hospitals,” Connell said. “Our contention, as you know, is there isn’t much difference between that and aid in dying.”

If a majority of the seven state Supreme Court justices agrees, Montana would become the third state in the country to allow physicians to help their patients end their own lives, but both of the others—effective in Oregon since 1997 and in Washington since March—did so through ballot initiatives rather than the courts.