MT court rules state policy allows assisted suicide

Opinion issued in Baxter v. Montana

The Montana Supreme Court issued a ruling just as 2009 ended, on Dec. 31, which determined Montanans have the right — under that state's public policy — to seek a physician's aid in assisted suicide, with no threat of sanction or legal action against the physician.

The opinion was issued in favor of the plaintiff in Baxter v. Montana, which also included as plaintiffs certain physicians and the nonprofit group, Compassion & Choices, whose mission is to improve care and expand choice at the end of life.

That means Montana joins Oregon and Washington in being the third state to allow assisted suicide.

At least, Montanans who are mentally competent and terminally ill have this right unless or until the state's legislature should decide to take up the matter when it convenes again. The state's law-making body will not meet again until 2011, as Montana's legislature convenes every two years.

"This case was about the right of mentally competent, terminally ill patients to req uest a prescription for medication from their doctors, which they can ingest to bring about a peaceful death," said Compassion & Choices Director of Legal Affairs Kathryn L. Tucker, co-counsel to the plaintiffs/respondents, in a news release.

"The Montana Supreme Court has determined that this is a choice the public policy of Montana supports. Montanans trapped in an unbearable dying process deserve, and will now have, this end-of-life choice. This is the first state high court to find protection of this choice, and makes clear that in Montana, patients are able to make this choice and physicians can provide this care without risking sanction."

Roberta King, of Missoula, the daughter of plaintiff Bob Baxter, said in a statement in the release, "My father died without the peace and dignity he so dearly wanted for himself and others. He feared when he filed this lawsuit that he would not live long enough to benefit from it. I'm sure he would be deeply gratified that other terminally ill Montanans will have the choice and comfort that aid in dying affords them."

Missoula attorney Mark Connell, who argued the case before the Montana Supreme Court on behalf of the plaintiff physicians and patients, said in the release that the high court's decision is "a victory for individual rights over government control. "The Montana Supreme Court has now recognized that, where intensely personal and private choices regarding end-of-life care are involved, Montana law entrusts those decisions to the individuals whose lives are at stake — not the government."

Legislature could reverse decision

Tucker noted in the release that there is no further appeal from this decision in a court of law, as the Montana Supreme Court is the "highest court available to decide state issues."

However, following the ruling, Montana's State Solicitor, Anthony Johnstone, released a statement on the Montana Supreme Court's decision, saying, "Today, the Montana Supreme Court recognized that physician-assisted suicide is a policy question for the people of Montana and their legislature. As we have argued, that is where the resolution of this important issue belongs."

Also, the release noted that, with its decision, "The Court rejected a broad constitutional challenge to the state's homicide law. Instead, the Court's decision allowed a narrow defense under existing law for physicians who assist in the death of a consenting, terminally ill patient."

As for the possibilities that the ruling could be reversed legislatively, Tucker tells MEA that "there [are] a number of things that could happen. First, as it stands now in Montana, we have clarity that patients can ask for aid in dying, and physicians can provide it. And that will remain the law of the state until the legislature, in its wisdom, takes action, which it may choose to do — and it may choose not to do. "So, between now and 2011, this is the law of the state, and we expect that patients will start having open, candid conversations with their physicians about their end-of-life wishes, including if they want aid in dying, and that Montana physicians who would provide that intervention will feel safe and confident about doing so," Tucker says.

In the ruling, the court relied heavily on language in an existing Montana statute, the Rights of the Terminally Ill Act, passed by the state legislature in 1985, according to the opinion. That piece of legislation "squarely addresses the modern complexities of physician- and technology-dependent end-of-life care provided to terminally ill Montanans."

The Rights of the Terminally Ill Act is part of a "carefully cultivated . . . statutory scheme that gives terminally ill Montanans the right to autonomously choose what happens to them at the end of painful terminal illness," according to the Montana Supreme Court ruling.

Baxter v. Montana, according to Tucker, also challenged one of that state's criminal statutes.

"The fear in the physician community was if the physician provides a prescription for a dying patient, which the patient could ingest to bring about a peaceful death — if the physician did that, and the patient consumed the medication and died, the question was: Could that physician be prosecuted under the physician homicide statute? What the court said was that in the Montana homicide law, if the person whose death is precipitated has consented to that death, then there isn't a basis to prosecute someone for homicide, unless there would be a public policy reason to do so."

At that point, the court relied on the Rights of the Terminally Ill Act, she said, to demonstrate that there would be "no public policy to support prosecuting a physician who provides aid in dying."

There are exceptions outlined in the ruling where a physician could be prosecuted by providing medication to allow a patient to take his or her own life.

"If there were duress or coercion," Tucker says. "I mean, obviously, there would be situations where you did want to prosecute a doctor or if anyone tried to force a patient to their death — that would still be prosecuted."

Tucker contends that anyone or any group that would hope to criminalize what Compassion & Choices terms as "aid in dying" in Montana would have an uphill battle.

"I think the reality is that there is very broad, public support for dying patients having this choice in Montana, as is true across the nation," she notes. "The burden on these so-called right-to-life activists, who might want to introduce an aid-in-dying crime, would be to convince legislators — in the face of such broad, public support to enact a fresh, new crime that would target physicians providing this compassionate option to suffering and dying patients. I think that's a very hard bill to pass in any legislature," she explains.

Tucker says that there is only one state — Arkansas — in the Unites States that "has ever passed such a bill."

How Oregon, Washington differ

The path to permission for assisted suicide was different for Oregon and Washington, compared to Montana.

"Oregon and Washington, because they established the right to aid in dying through statutory enactment, the statutes are what govern in those states," Tucker explains.

Accordingly, there is a defined process that an individual and his or her physician must follow in order to legally pursue and complete assisted suicide in Oregon and Washington.

"They have all of these provisions built into the statute about witnessing and waiting periods and reporting requirements," Tucker notes. "Those provisions don't apply in Montana, [because] Montana doesn't have, at this time, statutory enactment."

"The common element among the three states [is] that they all limit the choice of aid in dying to mentally competent, terminally ill patients who can self-administer medication that would bring about a peaceful death," she explains.