Physician-assisted suicide legal in Montana, court rules

Physicians in Montana should not fear criminal prosecution when writing lethal prescriptions for mentally competent patients with terminal illnesses, the state's supreme court said in a 4-2 decision issued Dec. 31, 2009.

Because patients consent to their own deaths and administer the lethal medications themselves, physicians would be shielded from homicide liability under state law, the court said in its decision in the case of Baxter v. Montana. The ruling makes Montana the third state, after Oregon and Washington, where physician-assisted suicide is legal.

The court's majority said doctor-aided death does not contradict public policy, because "each stage of the physician-patient interaction is private, civil and compassionate. ... The physician and terminally ill patient work together to create a means by which the patient can be in control of his own mortality. The patient's subsequent private decision whether to take the medicine does not breach public peace or endanger others."

The court declined to rule on whether terminally ill Montanans have a constitutional right to doctors' assistance in dying, opting for the narrower ground of statutory interpretation. A state district judge ruled in December 2008 that the Montana constitution's guarantees of privacy and dignity entitle patients to doctor-assisted death. The attorney general appealed the decision to the state supreme court.

Advocates of legal access to "aid in dying" proclaimed the supreme court ruling a victory and said it should clear the way for doctor-aided death in the state.

"Physicians in Montana should feel entirely safe in providing aid in dying to mentally competent, terminally ill Montanans," said Kathryn Tucker, director of legal affairs for Compassion & Choices and a lawyer for the plaintiffs in the case. "There would be no basis for prosecuting a physician who provides that care unless and until -- and that is a big if -- the Legislature were to pass a law that makes a crime of aid in dying."

Opponents of doctor-assisted suicide took heart from the ruling, because the Montana Supreme Court declined to rule on constitutional grounds. Still, they disagreed with the court's interpretation of state law.

The majority opinion noted that state law, as written, makes assisting a suicide a crime only if the suicide is not completed. The court said lawmakers did not, however, explicitly criminalize assisted suicide when the act is carried out successfully.

"I'd sum up the majority opinion like this: They're saying attempted robbery is a crime, but robbery is not a crime," said Paul Linton, special counsel for the Thomas More Society, a conservative public-interest law firm in Chicago. He drafted an amicus brief on behalf of the Oregon-based Physicians for Compassionate Care Education Foundation, which opposes doctor-assisted suicide.

Linton said the Montana court was right to skirt the constitutional issue, noting that no U.S. court of ultimate jurisdiction at the state or federal level ruled that patients have a constitutional right to physician-assisted suicide. Doctors who oppose doctor-aided death said the case could be a precedent for future legal maneuvers.

"This decision encourages and opens up the door for Compassion & Choices and other pro-suicide groups to try this in other states," said David Stevens, MD, CEO of the Christian Medical & Dental Assns. They view going through the courts "as better than ballot initiatives that are very expensive."

The Montana Medical Assn. did not comment on the decision, which the organization was still reviewing at this article's deadline. The American Medical Association opposes physician-assisted suicide because the practice is "fundamentally inconsistent with the physician's role as healer."

A plaintiff in the case, Missoula, Mont., oncologist Stephen Speckart, MD, said that over his three decades in practice he received a handful of requests for doctor-assisted suicide. He said he was willing to help, "but I had to decline. I'd just tell them the circumstances, that it's against the law, and I can't participate in this."

Still, Dr. Speckart said Montana physicians and patients need legislative boundaries that go beyond the state supreme court's ruling. He would like to see the Montana Legislature enact laws similar to those in Oregon and Washington.

Legislative battle ahead

Montana Democratic State Rep. Dick Barrett plans to propose an Oregon-style physician-assisted suicide law when the Legislature resumes in January 2011 to give doctors protection from civil liability and to institute waiting periods, public reporting and other patient protections.

Conservatives in Montana already have pledged to push legislation specifically outlawing doctor-assisted suicide. What had been a court battle in Montana now will move to the court of public opinion, Barrett said.

"People's feelings are very strong about this issue and to some degree irreconcilable, but you've got to duke it out," Barrett said. "It's not fun."