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NRL News
Page 21
January 2010
Volume 37
Issue 1

Montana Court Finds Assisted Suicide Legal

By Burke J. Balch, J.D.

Basing its decision on state law rather than on the state constitution, as plaintiffs had wanted, the Montana Supreme Court has voted 5–2 that physician-assisted suicide is not prohibited. The decision leaves the Montana legislature the option of enacting a new law that unquestionably forbids the practice, although that would undoubtedly be followed by a new lawsuit requiring a ruling on its constitutionality.

At present, assisting suicide has been affirmatively legalized only in two other states, Oregon and Washington state. In both cases it was adopted by popular referendum. To date, no state legislature has voted to do so, and efforts to find a state constitutional right to assist suicide have been rejected by the highest court of every state in which such lawsuits have been brought. In 1997, the United States Supreme Court found no federal constitutional right to assist suicide.

As reported in NRL News, in December 2008, Montana District Court Judge Dorothy McCarter ruled that the state constitution includes the right to assisted suicide. The seven-member Montana Supreme Court heard oral arguments in Baxter v. Montana this past September and rendered its decision December 31, 2009. The lead plaintiff was Robert Baxter, who died at age 76 of complications related to lymphocytic leukemia.

Montana’s statutes contain a general provision that makes the victim’s consent a defense to prosecution for any crime unless “it is against public policy to permit the conduct or the resulting harm, even though consented to.” Writing for the majority, Justice W. William Leaphart concluded, “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.”

Leaphart relied primarily on a 1985 state law under which individuals can use advance directives to reject treatment that could prevent their deaths.

In dissent, Justice Jim Rice noted that the 1985 law explicitly states that it “does not condone, authorize, or approve mercy killing or euthanasia.”

Justice James Nelson wrote a concurring opinion in which he maintained that the Montana Constitution’s protection of “dignity” includes a constitutional right for anyone with an incurable illness to obtain assisted suicide, the position that had been taken by the lower court.

Justice Rice’s dissenting opinion responded that the 1972 Montana Constitutional Convention specifically rejected proposals to create “a right to die.” As for the “dignity” provision on which Justice Nelson relied, Rice quoted the remarks of the chairman of the Bill of Rights Committee who drafted it:

There is no intent within this particular section to do anything other than to remove the apparent type of discrimination that all of us object to with respect to employment, to rental practices, to actual association in matters that are public or matters that tend to be somewhat quasi-public.”

Justice Rice added, “Nothing within these discussions or explanations suggests even a thought that the dignity clause contained vague, lurking rights that might someday manifest themselves beyond what the delegates or the citizens of Montana who approved the Constitution believed, and overturn long-established law, here, the policy against assisted suicide.”

He concluded, “[T]he 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.”