Assisted Suicide in Montana: Information & Analysis

The Montana Supreme Court declines to rule on constitutional right to assisted suicide; Legislature needs to "step up to the plate" to protect Montana citizens.

FOR THE FULL TEXT OF BAXTER VS MONTANA, PLEASE SEE HERE.

Information

On December 31st, 2009, the Supreme Court of Montana issued a decision in which it declined to rule on a right to "aid in dying" based on the Montana State Constitution. Contrary to the spin provided by Compassion & Choices, the group formerly known as the Hemlock Society, the Montana Supreme Court in Baxter did not "legalize" assisted suicide in Montana. Instead, the Court narrowly ruled that a physician engaged in assisted suicide can invoke the "consent of the victim" defense to homicide charges.

According to Eileen Geller Hospice RN and President of True Compassion Advocates, "In practice, this means that while assisted suicide is still not legal in Montana, the Court has nevertheless stripped vulnerable patients of important legal protections. The ruling is a "recipe for elder abuse" and for "the victimization of ill people."

In his dissent in Baxter, Montana Supreme Court Justice Jim Rice, states: "The Court has badly misinterpreted our public policy: assisting suicide has been explicitly and expressly prohibited by Montana law for the past 114 years." With regard the consent of the victim to homicide, Rice cited long-standing legal precedent: "The policy of the law is to protect human life, even the life of a person who wishes to destroy his own. To prove that the victim wanted to die would be no defense to murder."

Justice Rice, whose entire cogent dissent opinion (pages 52 to 67) is well worth reading, goes on to say: "Until the public policy is changed by the democratic process, it should be recognized and enforced by the courts. It is a public policy which regards the adding of suicide as typifying "a low regard for human life," and which expressly prohibits it. Instead, the Court rejects the State's longstanding policy. It ignores expressed intent, parses statutes, and churns reasons to avoid the clear policy of the State and reach an untenable conclusion: that it is against public policy for a physician to assist in a suicide if the patient happens to live after taking the medication; but that the very same act, with the very same intent, is not against the public policy of the patient dies. In my view, the Court's conclusion is without support, without clear reason, and without moral force."

According to George Mulcaire-Jones, MD, a physician who provides care to seniors, people with disabilities, and serious illnesses as part of his Butte, Montana family medicine practice:

"Montana physicians don't want court-enforced protection from murder charges and they don't want to commit assisted suicide on vulnerable people. People living with serious illness and chronic conditions need care and compassion from their physicians, not a handful of deadly drugs. Montana physicians need support in providing compassionate health care, not court-ordered insulation against homicide."

TCA President Eileen Geller, in a press release on the subject, dated January 1st, 2010 concluded: "In Baxter, the Montana Supreme Court expressly declined to hold that a constitutional right to physician-assisted suicide exists under the Montana constitution. The Montana legislature must now step up to the plate, re-affirm over a hundred years of Montana public policy, and protect elderly, ill, and disabled Montanans."

Analysis

In the decision Baxter Vs Montana, issued December 31st, 2009, the Montana Supreme Court in Baxter did not "legalize" assisted suicide in Montana. Instead, it recognized an affirmative defense to the crime of homicide where the "consent of the victim" can be proven by the defendant.

  • The Baxter decision is a run-of-the-mill statutory interpretation case; it has no constitutional implications (whether relating to the federal or Montana constitutions).
  • In fact, in Baxter, the Montana Supreme Court expressly declined to hold that there is a constitutional right to physician-assisted suicide under the Montana constitution, and it expressly invalidated the trial court's declaration that there is such a right.
  • What is not constitutional can be changed or altered at any time by the legislature.
  • The court's decision analyzed the statutory "victim consent" defense to homicide.
  • The court ruled that a physician engaged in assisted suicide can invoke the "consent of the victim" defense.
  • The court's decision was based on ambiguity concerning the Montana legislature's intent in its "Rights of the Terminally Ill Act" to make assisted suicide "against public policy." As Justice Warner noted in his concurrence, it is now up to the Montana legislature to remove the ambiguity by deciding whether assisted suicide is against public policy.
  • Under Montana criminal statutes, a person commits deliberate homicide if "the person purposely or knowingly causes the death of another human being. " But Montana establishes a defense to homicide where there is consent of the victim: "consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense." The court noted that a doctor engaged in physician-assisted suicide might be able raise this "consent of the victim" defense to homicide if the doctor were prosecuted.
  • Yet the "consent of the victim" defense would not be legally effective under the Montana statute if it was held to be "against public policy." After going through a lengthy analysis, the court concluded that there was insufficient evidence to conclude that the Montana legislature intended the consent defense to be against public policy, finding "no indication in the Terminally Ill Act that physician aid in dying is against public policy." (That means the Montana legislature can clarify its legislative intent on that issue if it so desires.) The court also noted that the "consent of the victim" defense would be unavailable under Montana law if the physician-assisted suicide "is induced by force, duress, or deception."
  • As the concurrence by Justice Warner notes, the court decided simply that "a physician who assists a suicide, and who happens to be charged with a crime for doing so, may assert the defense of consent." The court reached that legal conclusion, as Justice Warner noted, "because the Legislature has not plainly stated that assisting a suicide is against public policy."
  • Justice Nelson offered a rambling concurring opinion stating, among other things: "I further conclude that physician aid in dying is protected by the Montana Constitution as a matter of privacy and as a matter of individual dignity." Many pages later, he goes on to conclude: "This right to physician aid in dying quintessentially involves the inviolable right to human dignity-our most fragile fundamental right"
  • Justice Nelson's pro-assisted suicide musings in his concurrence are purely his own opinion and have no legal authority or significance. The majority opinion in Baxter flatly declined to reach the constitutional issues, and Nelson's concurrence cannot change that.Baxter's majority opinion is narrow-based only on the absence of a sufficiently plain legislative statement that assisted suicide is against public policy-and revisable or reversible by the legislature.
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