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.

To Board: Assisted suicide "kills the very person under the physician's care"

To: DLI BSD Medical Examiners
Subject: Position Statement No 20

To whom it may concern,

Please vacate position statement no. 20 as assisted suicide is neither legal, consistent with established American Medical Association statements, the Hippocratic oath, puts the vulnerable and elderly at risk, and kills the very person under the physician’s care.

Respectfully submitted,
Samuel J. Reck, MD

"Does the Board really want to put itself in the embarrassing position of overstepping its authority by condoning this procedure? "

Dear Members of the Board, 


I am writing again, as a Family Medicine physician in Bozeman since '89, to address the renewed attention given to Position Statement 20. I am having trouble understanding why our Montana Board of Medical Examiners would step out on a limb and seemingly promote, or at least encourage physicians to go along with a procedure, Physician Assisted Suicide for the following reasons: 


1. Compassion and Choices [fna the Hemlock Society], which has brought the original lawsuit, and lobbied for this procedure is an out of state special interest group, looking to expand Physician Assisted Suicide all over the country. How is it that our own Board of Medical Examiners is stepping out on a limb to enable this organization to meet its goals? 


2. The Montana Supreme Court's decision in the Baxter case gives no reassurance that this procedure will not be frowned upon in the court of law when it is tested. Does the Board really want to put itself in the embarrassing position of overstepping its authority by condoning this procedure? 

Assisted Suicide is not Legal in Montana

Assisted Suicide: Not Legal in Montana;

 A Recipe for Elder Abuse and More

By Margaret Dore, July 15, 2011*

A. Introduction

 Proponents claim that physician-assisted suicide is legal in Montana. This is untrue. A bill that would have accomplished that goal was defeated in the 2011 legislature.

Legal physician-assisted suicide is, regardless, a recipe for elder abuse. It empowers heirs and others at the expense of older people.  In Oregon, where physician-assisted suicide is legal, legalization has empowered the Oregon Health Plan to steer patients to suicide.  There are multiple other problems.

B. What is Physician-Assisted Suicide?

 The American Medical Association (AMA) states: "Physician-assisted suicide occurs when 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." (AMA Code of Medical Ethics, Opinion 2.211). For example, a "physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide." Id.

 The AMA rejects physician-assisted suicide. Id. Assisted suicide is also opposed by disability rights groups such as the Disability Rights and Education Defense Fund, and Not Dead Yet.

C.  Most States do not Allow Physician-Assisted Suicide

There are just two states where physician-assisted suicide is legal:  Oregon and Washington.  These states have statutes that give doctors and others immunity from criminal and civil liability arising out of a patient's suicide (euphemistically termed "death with dignity").  See e.g. RCW 70.245.190(1)(a).  These statutes were passed via ballot initiatives.  No such law has ever made it through the scrutiny of a legislature.

D.  Current Montana Law

Under current Montana law, assisting a suicide exposes the assister to civil and criminal liability. Doctors and others can be held civilly liable for: (1) causing another to commit suicide; or (2) failing to prevent a suicide in a custodial situation where the suicide is foreseeable.[1]  This latter situation would typically occur in a hospital or prison.[2]  Those who assist a suicide can also be prosecuted for homicide under Mont. Code Ann. § 45-5-102(1).  Doctors, however, have the right to assert an affirmative defense based on the victim’s consent and other factors. This is due to the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234, ¶¶ 10 & 50, 224 P.3d 1211 (2009).[3]

E. The 2011 Legislative Session

 The 2011 legislative session featured two bills in response to Baxter, both of which failed: SB 116, which would have eliminated Baxter’s affirmative defense; and SB 167, which would have legalized assisted suicide by providing doctors and others with immunity from civil and criminal liability.

During a hearing on SB 167, the bill's sponsor, Senator Anders Blewett, said: "[U]nder current law, .　.　. there’s nothing to protect the doctor from prosecution."[4]

F. Legalization Will Create New Paths of Abuse

In Montana, there has been a rapid growth of elder abuse.[5]  Elders’ vulnerabilities and larger net worth make them a prime target for financial abuse.[6]  The perpetrators are often family members interested in an inheritance.[7] 

In Montana, preventing elder abuse is official state policy.[8]  If Montana would legalize physician-assisted suicide, a new path of abuse would be created against the elderly.  Alex Schadenberg, Chair of the Euthanasia Prevention Coalition, International, states:

"With assisted suicide laws in Washington and Oregon, perpetrators can . . . take a "legal" route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over the administration. . . . [E]ven if a patient struggled, "who would know?"[9]

G. "Terminally Ill" Does Not Mean Dying

Baxter’s affirmative defense applies when patients are "terminally ill," a term that Baxter does not define.  During the Baxter litigation, the plaintiffs offered this definition:

"'Terminally ill adult patient' means '[an adult] who has an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of his or her attending physician, result in death within a relatively short time.'"[10]

This definition is broad enough to include patients with chronic conditions who could "live for decades."  Attorney Theresa Schrempp and doctor Richard Wonderly state:

"[The] definition is broad enough to include an 18 year old who is insulin dependent or dependent on kidney dialysis, or a young adult with stable HIV/AIDS.  Each of these patients could live for decades with appropriate medical treatment.  Yet they are 'terminally ill' according to the definition promoted by advocates of assisted suicide."[11]

H. Legal Physician-Assisted Suicide Empowered the Oregon Health Plan, Not Individual Patients

 Once a patient is labeled "terminal," an easy argument can be made that his or her treatment should be denied. This has happened in Oregon where patients labeled "terminal" have not only been denied coverage for treatment, they have been offered assisted-suicide instead.

The most well known cases involve Barbara Wagner and Randy Stroup. (KATU TV, ABC News).[12]  The Oregon Health Plan refused to pay for their desired treatments and offered to pay for their suicides instead. Neither Wagner nor Stroup saw this as a celebration of their "choice." Stroup said: "This is my life they’re playing with." Wagner said: "I’m not ready to die."

Stroup and Wagner were steered to suicide. Moreover, it was the Oregon Health Plan doing the steering. Oregon’s law empowered the Oregon Health Plan, not individual patients. 

I. In Oregon, Legalization of Physician-Assisted Suicide is Correlated to an Increase in Other Suicides

Oregon's suicide rate, which excludes suicide under Oregon's physician-assisted suicide law, has been "increasing significantly" since 2000.[13]  Just three years prior, in 1997, Oregon legalized physician-assisted suicide. [14]  In Oregon, legalization of physician-assisted suicide is statistically correlated with an increased rate of other suicides.

J.  The Oregon Reports do not Prove That Assisted-Suicide is "Safe"

 During the 2011 legislative session in Montana, proponents claimed that annual reports from Oregon demonstrated the safety of physician-assisted suicide.  These reports do not discuss whether the people who died consented when the lethal dose was administered.  During a hearing on SB 167, Senator Jeff Essmann made a related point, as follows:

"[A]ll the protections [in Oregon’s law] end after the prescription is written. [The proponents] admitted that the provisions in the Oregon law would permit one person to be alone in that room with the patient. And in that situation, there is no guarantee that that medication is self-administered.

So frankly, any of the studies that come out of the state of Oregon’s experience are invalid because no one who administers that drug against – to that patient is going to be turning themselves in for the commission of a homicide."[15]

K.  SB 167 was Defeated in the Senate Judiciary Committee

During the hearing on SB 167, Senator Essman also stated:

"There’s inadequate protection in [SB 167] for the powerless.  It’s our obligation to protect the powerless. . . .  I’m going to vote no."[16]

SB 167, seeking to legalize physician-assisted suicide in Montana, was defeated in the Senate Judiciary Committee.[17] 

L. Conclusion

 Legal assisted suicide is a recipe for elder abuse.  The practice has multiple other problems.  Don't make Oregon's and Washington's mistake.  Keep assisted suicide out of Montana.


*  Margaret Dore is an attorney in Washington State where assisted suicide is legal.  She was an amicus curie in the Baxter litigation.  She testified before the Montana Senate Judiciary Committee against SB 167, which had sought to legalize physician-assisted suicide in Montana.  Her publications include Margaret K. Dore, "Aid in Dying: Not Legal in Idaho; Not About Choice," The Advocate, official publication of the Idaho State Bar, Vol. 52, No. 9, pages 18-20, September 2010.

* * *

[1]   Krieg v. Massey, 239 Mont. 469, 472-3, 781 P.2d 277 (1989). 

[2]  Id.
[3]  To view Baxter, go here.  To view an analysis of Baxter, go here.
[4]  Go here to see a transcript of this quote and other quotes by Senator Blewett. 
[5]  Great Falls Tribune, "Forum will focus on the rapid growth in abuse of elders," June 10 2009 ("The statistics are frightening, and unless human nature takes a turn for the better, they’re almost certain to get worse").  See also Nicole Grigg, Elder Abuse Prevention, Kulr8.com, June 15, 2010 and Big Sky Prevention of Elder Abuse Program, What is Elder Abuse.
[6]  MetLife Mature Market Institute Study:  Broken Trust: Elders, Family, and Finances, 2009. 
[7]  Id.
[8]  See e.g., the "Montana Elder and Persons With Developmental Disabilities Abuse Prevention Act," 52-3-801, MCA; the Protective Services Act for Aged Persons or Disabled Adults, 52-3-201, MCA; and the "Montana Older Americans Act," 52-3-501, et. al., MCA.  Also go here. 
[9]  Alex Schadenberg, Letter to the Editor, "Elder abuse a growing problem," The Advocate, official publication of the Idaho State Bar, October 2010, page 14, available at http://www.isb.idaho.gov/pdf/advocate/issues/adv10oct.pdf. 
[10]  Plaintiffs’ Answer to Interrogatory No. 4, available at page 3, here:  http://www.euthanasiaprevention.on.ca/ConnMemo02.pdf  
[11]  Opinion Letter from Dr. Richard Wonderly and Theresa Schrempp, Esq., to Alex Schadenberg, available here:  http://www.euthanasiaprevention.on.ca/ConnMemo02.pdf
[12]  See Susan Harding and KATU web staff, "Letter noting assisted suicide raises questions," July 30, 2008 and Susan Donaldson James, "Death drugs Cause Uproar in Oregon," ABC News, August 6, 2008.  See also Ken Stevens, MD, "Oregon mistake costs lives," official publication of the Idaho State Bar, September 2010, pages 16-17, available at http://www.isb.idaho.gov/pdf/advocate/issues/adv10sep.pdf ("In Oregon, the mere presence of legal assisted-suicide steers patients to suicide . . . ").
[13]  See Oregon Government News Release, September 9, 2010 ("suicide rates have been increasing significantly since 2000"); and "Suicides in Oregon, Trends and Risk Factors, September 2010 ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report").
[14]  See e.g., "Oregon's Death with Dignity Act:  The First Year's Experience," page 1 ("On October 27, 1997, physician-assisted suicide became a legal medical option for terminally ill Oregonians").
[15]  Montana Senate Judiciary Hearing, February 10, 2011, Transcript, p. 15, lines 1 to 11, available here. 
[16]  Id., lines 12 to 14.
[17]  See Montana Legislative website at
http://www.leg.mt.gov/css/default.asp (SB 167 was tabled in Committee on February 10, 2010).