Assisted Suicide: The Montana Supreme Court Says Yes

By Marker, Rita L. | The Human Life Review, Spring 2010 | Go to article overview
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Assisted Suicide: The Montana Supreme Court Says Yes


Marker, Rita L., The Human Life Review


"[Wjefind nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. "'

On the last day of 2009, when the Montana Supreme Court handed down its decision in an assisted-suicide case, it marked the first time a state high court has given the green light for doctors to prescribe a lethal dose of drugs for their patients.

The decision was particularly tragic, given the fact that Montana already has the highest suicide rate in the nation, twice the national average.2 This fact has prompted the legislature to spend hundreds of thousands of dollars on suicide-prevention programs.3 But that didn't stop the Court from making Montana the third state, after Oregon and Washington, to transform the crime of assisted suicide into a "medical treatment." And, in the not-toodistant future, the Court's decision could have a tremendous impact on states across the nation. This is due not only to the formal outcome of the case, but also to the fact that the Court dealt euthanasia and assisted-suicide activists a winning hand in a deadly serious name game: It decided to refer to assisted suicide, not as what it is, but as "aid in dying."

Furthermore, it provided a new basis on which the right for physicians to assist suicides can be argued: as a mere extension of a state's living- will law.

The Case

The Montana case originated when Robert Baxter, a terminally ill retired truck driver, along with four physicians and the assisted-suicide advocacy organization Compassion and Choices (the former Hemlock Society) brought an action in District Court, challenging the constitutionality of the application of Montana's homicide statutes to physicians who provide drugs for assisted suicide to mentally competent terminally ill patients. The complaint alleged that patients have a right to physician-assisted suicide under the Montana Constitution's guarantee of individual dignity and privacy.4

In December 2008, District Court Judge Dorothy McCarter ruled that the Montana Constitution's provisions ensuring the right to privacy and human dignity, taken together, did encompass the right of a competent terminally ill patient to die with dignity.5 Consequently, she declared that a patient may use the assistance of a physician to obtain a prescription for a lethal dose of drugs and that the patient's physician would be protected from prosecution under the state's homicide statutes.

As expected, the case was appealed to the Montana Supreme Court. From the outset, the high court tipped its hand by reframing the question before it:

We rephrase the following issues on appeal: Whether the District Court erred in its decision that competent, terminally ill patients have a constitutional right to die with dignity, which protects physicians who provide aid in dying from prosecution under the homicide statutes.6

In its decision, the Court did not resolve the question of whether the Montana Constitution provides the right to assisted suicide. Instead, it looked to Montana's consent statute7 and found that "a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply."8 In short, if a doctor is charged with the crime of assisted suicide for prescribing drugs for the patient to use in committing suicide, the doctor can use the patient's consent as a defense against the charges. (The old "she asked for it" defense.)

The Court rationale was based primarily on Montana's living- will law, which, it noted, "by its very subject matter, is an apt statutory starting point for understanding the legislature's intent to give terminally ill patients - like Mr. Baxter - end-of-life autonomy, respect and assurance that their lifeending wishes will be followed."9 Furthermore, the Court explicitly stated that there was no significant difference between a physician's act of withholding or withdrawing treatment and that of writing a prescription for drugs that will be used to cause death:

The Terminally 111 Act, in short, confers on terminally ill patients a right to have their end-of-life wishes followed, even if it requires direct participation by a physician through withdrawing or withholding treatment.

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