Laws Against Assisted Suicide are Constitutional

By Margaret Dore

This article describes why laws against physician-assisted suicide are constitutional in Montana.  See below.

A.  Physician-Assisted Suicide

The American Medical Association defines "physician-assisted suicide" as follows: "[A] physician facilitates a patient’s death "by providing the necessary means and/or information to enable the patient to perform the life-ending act (e.g., the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide)."[1]

Physician-assisted suicide is also called assisted suicide and "aid in dying," a term which also means euthanasia.[2] 

B. Assisted Suicide is Not Legal in Montana

In Montana, the law on assisted suicide is governed by statutes and case law.[3]  The most recent case law is Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (2009), which gives doctors who assist a patient's suicide a defense to a homicide charge.  Baxter states:

"We therefore hold that under § 45-2-211, MCA, 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."[4]

Under Baxter, this defense fails if the patient's consent cannot be shown.[5]  In that case, prosecution for homicide can go forward.[6]

Baxter did not overrule Montana case law imposing civil liability on persons who cause or fail to prevent another person's suicide.  See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Other relevant case law includes Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997) (affirming a civil judgment against a doctor who had prescribed an ”excessively large dosage” of barbiturates to a suicidal patient who then killed herself with the barbiturates).  

Attorneys Greg Jackson and Matt Bowman state: "After Baxter, assisted suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[7]  In short, Baxter did not legalize assisted suicide."

C.  Clarifying Legislation Would be Constitutional

Some assisted suicide proponents, nonetheless, claim that assisted suicide is legal under Baxter.[8]  With this situation, clarifying legislation is needed.  Some proponents, however, counter that any such legislation would be unconstitutional.  This is untrue.  See below.

The Oregon Health Plan Steers Patients to Suicide

On September 21, 2012, the Attorney General of Canada filed an affidavit by Dr. Ken Stevens in the Quebec assisted suicide case, Leblanc v Canada.  Therein, Dr. Stevens describes how the Oregon Health Plan steers patients to suicide.

Please view the text of his affidavit below.  To view a hard copy of his affidavit, click here. 

Margaret Dore to Speak at Deaconess Hospital, Bozeman, Sept 12th, 7pm

To view event flyer, click here.

"Assisted Suicide:  Whose Choice?"

A Presentation by Margaret Dore, Esq.

Margaret Dore

Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide.  She is also an attorney in Washington State where assisted suicide is legal and patient choice is not assured.  The law instead invites patient coercion and elder abuse.  The Washington law  also devalues people with disabilities.  Ms. Dore is a former Law Clerk to the Washington State Supreme Court.  She was an amicus curie in Montana's Baxter case.  For more information, see www.margaretdore.com and www.choiceillusion.org  

Ms. Dore will discuss assisted suicide laws in Washington and Oregon and how those laws are a recipe for abuse.  She will compare the situation in Washington and Oregon to proposals seeking to legalize assisted suicide in Montana.

Senator Hinkle Corrects the New England Journal of Medicine

"Assisted Suicide is Not Legal in Montana"

Dear Editor:

I am a Montana State Senator.  I disagree with your article, "Redefining Physicians' Role in Assisted Dying," claiming that assisted suicide is legal in Montana.  At the very least, Montana law is unclear.

Last year, Senate Bill 167, which would have legalized assisted suicide in Montana, failed.  This leaves assisted suicide governed by a Montana Supreme Court case, Baxter v. Montana.  An analysis by attorneys Greg Jackson and Matt Bowman describes Baxter as follows:

"The Montana Supreme Court s assisted-suicide decision . . . didn't even 'legalize' assisted-suicide. . . . After Baxter, assisted-suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[1]

Since then, competing articles have appeared in the official Montana State Bar publication disputing whether Baxter legalized assisted suicide.[2]  The editor's headline states: "Court ruling still leaves the issue open to argument." [3]

Correct reporting would be that assisted suicide is not legal in Montana and/or hotly disputed.  Thank you for your attention to this matter.