Montana Supreme Court: Physician-Assisted Suicide Is an End-of-Life Option

On the last day of 2009, Montana’s Supreme Court handed down its ruling in Baxter v. Montana,¹ making it the first high court to permit physician-assisted suicide. “[W]e find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy,”² stated the court. “We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient—not the physician—commits the final death-causing act by self administering a lethal dose of medicine.”³ Therefore, under Montana’s consent statute⁴ “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.”⁵

“Aid in dying,” the phrase the court chose to describe physician-assisted suicide, has become the label of choice for assisted-suicide advocates. When it was first used in failed voter initiatives in Washington and California,⁶ it encompassed both assisted suicide and euthanasia.

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 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.⁷

In December 2008, the district court issued its order and decision, holding that the Montana constitutional rights of privacy and human dignity together encompass the right of a competent terminally ill patient to die with dignity.⁸ In addition, the district court held 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.

The issue on appeal, as rephrased by the Montana Supreme Court, was “[w]hether 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.”⁹

However, the high court did not resolve the question of whether the Montana Constitution provides the right to assisted suicide. Instead, it based its conclusion, in large part, on the interpretation of the state’s advance directive law, the “Rights of the Terminally Ill Act,”¹⁰ stating, “The Terminally Ill Act, 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 life-ending wishes will be followed.”¹¹ 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 Ill 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. Section 50-9-103, MCA. Nothing in the statute indicates it is against public policy to honor those same wishes when the patient is conscious and able to vocalize and carry out the decision himself with self-administered medicine and no immediate or direct physician assistance.¹²

The Terminally Ill Act authorizes physicians to commit a direct act of withdrawing medical care, which hastens death. In contrast, the physician’s involvement in aid in dying consists solely of making the instrument of the “act” available to the terminally ill patient. The patient himself then chooses whether to commit the act that will bring about his own death.¹³

In addition to making it clear that Montana’s advance directive law permits physician-assisted suicide, the court implied that the state’s education and outreach program, which pertains to “advance health care planning and end-of- life decision making,” encompasses informing patients of the availability of all life-ending actions, including physician-assisted suicide:

[O]utreach and education provisions, and state funding for both, indicate legislative intent to honor and promulgate the rights of terminally ill patients to autonomously choose the direction of their end-of-life medical care. There is no indication in the statutes that another choice—physician aid in dying—is against this legislative ethos of honoring the end-of-life decisions of the terminally ill.¹⁴

And Montana Makes Three

The Montana decision makes that state the third to transform physician-assisted suicide into an end-of-life option. Prior to it, physician-assisted suicide was permitted only in Oregon and Washington after voter initiatives approved laws, each called the “Death with Dignity Act,”¹⁵ transforming the crime of physician-assisted suicide into a medical treatment. Attempts to pass similar laws by legislative action and voter initiative have failed in more than twenty states.¹⁶

In Montana, qualification for end-of-life drugs is far more relaxed than in Oregon and Washington, where two physicians must determine that a patient has a predicted life expectancy of six months or less and certain other guidelines, including two oral requests and one written witnessed request, must be met before the prescription is written.¹⁷

The Montana decision permits the lethal prescription to be written under far more expansive circumstances. There, a “terminally ill patient” may seek out a physician and merely “asks him to provide him the means to end his own life.”¹⁸ Furthermore, Montana’s Rights of the Terminally Ill Act broadly defines “terminal condition” as “an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of the attending physician or attending advanced practice nurse, result in death within a relatively short time.”¹⁹

Montana Decision Departs from Previous Courts

The Montana case marked the fifth time that assisted-suicide advocates had sought to achieve their goals through court action. But, until the Montana decision, they had not prevailed.

In 1997, the United States Supreme Court issued two decisions on the subject of whether there was a right to assisted suicide under the United States Constitution.²⁰ The Court found no such right and clearly distinguished between the withholding and withdrawal of life-sustaining treatment and the provision of physician-assisted suicide: “The distinction comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.”²¹

That same year, the Florida Supreme Court overturned a lower court decision which held that Florida’s assisted-suicide prohibition violated the privacy guarantee of the Florida Constitution.²² The trial court, after explaining that there was no difference between withholding or withdrawing treatment and assisted suicide, held that Florida’s assisted-suicide prohibition violated the Florida Constitution’s privacy guarantee. In overturning the lower court decision, the Florida Supreme Court, like the U.S. Supreme Court, rejected claims that physician-assisted suicide is no different than removing treatment:

We cannot agree that there is no distinction between the right to refuse medical treatment and the right to commit physician-assisted suicide through self administration of a lethal dose of medication. The assistance sought here is not treatment in the traditional sense of that term. It is an affirmative act designed to cause death—no matter how well-grounded the reasoning behind it.”²³

In rejecting the rationale that there was no distinction between refusing treatment and physician-assisted suicide, the court held that there is no right to assisted suicide under a 1980 right to privacy provision in a constitutional amendment to Florida’s constitution.²⁴

Four years later, in Sampson v. Alaska,²⁵ the Alaska Supreme Court decided a case in which two competent terminally ill adults sued for an order declaring that their physicians are exempt from Alaska’s manslaughter statute for the purpose of assisting them to commit suicide. They based their claim on the Alaska Constitution’s guarantees of privacy and liberty.²⁶ In rejecting their claims, the state high court explained:

Sampson and Doe offer nothing from the Alaska Constitution’s history suggesting that either suicide or assisted suicide were topics of concern when the privacy and liberty clauses were drafted and adopted. The approach of the Alaska Statutes toward assisted suicide has been consistent since statehood; Alaska law prohibited all forms of assisted suicide and has never recognized an exception for physicians assisting their patients.²⁷

As in the cases previously decided by the U.S. and Florida Supreme Courts, Sampson and Doe argued that the ban on assisted suicide created an arbitrary distinction between assisted suicide and withholding or withdrawal of medical treatment because “it allows physicians to hasten the deaths of some patients by passive measures—such as withdrawal of life support or terminal sedation—but forbids them from helping other patients who prefer physician-assisted suicide as a method for hastening death.”²⁸ And, as in the previous cases, the Alaska court rejected that argument, stating that it “overlooks an important distinction between a physician’s active participation in a patient’s suicide and a physician’s willingness to honor a patient’s request to cease or withdraw treatment . . . . [T]hese two types of conduct are significantly different. Their difference reflects the long-recognized distinction between action and forbearance.”²⁹

Contrasting a physician’s omission of unwanted medical treatment with assisting a suicide, the Alaska court noted:

In sharp contrast to this situation, when a physician assists a terminally ill patient by prescribing medication to hasten the patient’s death, the death is caused by the patient and is abetted by the physician’s affirmative actions. The physician thus becomes liable because the physician actively participates in the patient’s suicide.³⁰

Montana was not the first court to consider whether assisted-suicide should be deemed an end-of-life option. Nor will it be the last.

It remains to be seen whether other states will follow the lead of the U.S. Supreme Court, the Florida Supreme Court, and the Alaska Supreme Court or whether, like Montana, they will interpret their advance directive laws to permit physician-assisted suicide under the label “aid in dying.”

Endnotes

1 Baxter v. Montana, 2009 MT 449; 2009 Mont. LEXIS 695 (2009).

2 Id. at ¶49.

3 Id.

4 MCA §45-2-11.

5 Baxter v. Montana, 2009 MT 449 at ¶50.

6 A 1991 Washington State voter initiative (Initiative 119) and a 1992 California initiative (Proposition 161) sought to allow both assisted suicide and euthanasia, calling such actions “aid in dying,” defined as “any medical procedure that will terminate the life of a qualified patient swiftly, painlessly, and humanely.”

7 Mont. Const. art. II, §§ 4 and 10.

8 Baxter v. Montana, 2008 Mont. Dist. LEXIS 482 (2008).

9 Baxter v. Montana, 2009 MT 449 at ¶3.

10 MCA Title 50, ch. 9.

11 Baxter v. Montana, 2009 MT 449 at ¶27.

12 Id. at ¶30 (emphasis in original).

13 Id. at ¶32 (emphasis in original).

14 Id. at ¶37.

15 Oregon’s “Death with Dignity Act” (Measure 16) passed in November 1994 and went into effect in 1997. Washington’s “Death with Dignity Act” (Initiative 1000) passed in November 2008 and went into effect in March 2009.

16 Attempts to pass similar laws by legislative action and voter initiative have failed in more than twenty states. See “Failed Attempts to Legalize Euthanasia/Assisted Suicide in the United States,” http://www.internationaltaskforce.org/usa.htm (last accessed January 13, 2009).

17 Or. Rev. Stat. §§ 127.800-.897; Rev. Code Wash. §§ 70.245.010-.903.

18 Baxter v. Montana, 2009 MT 449 at ¶44.

19 MCA 50-9-102 (16) (emphasis added).

20 Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).

21 Vacco v. Quill, 521 U.S. at 801.

22 Fla. Const. art. I, § 23.

23 Krischer v. McIver, 697 So. 2d 97, 102 (Fla. 1997).

24 Id.

25 Sampson v. Alaska, 31 P.3d 88 (Alaska 2001).

26 Alaska Const. art. 1, §§1 and 22.

27 Sampson v. Alaska, 31 P.3d at 92.

28 Id. at 98-99.

29 Id. at 99.

30 Id.