Assisted Suicide is Not Legal in Montana

This letter, by attorney Craig Charlton, responds to a prior letter claiming that assisted suicide is legal.  Mr. Charlton, attorney for Montanans Against Assisted Suicide, states:

Dear Physician . . . 

You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012. The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009. This is untrue. I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.

The letter states: "Physicians can provide prescriptions to such patients without fear that doing so could give rise to criminal or disciplinary sanction." This statement is contrary to Baxter, which merely gives doctors a defense to prosecution. 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."[1]

You may also be interested in this analysis of Baxter by attorneys Greg Jackson and Matt Bowman:

"[T]he Court's narrow 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."[2]

Please note that [Compassion & Choices'] "aid in dying" letter omits any discussion of a doctor’s potential civil liability for wrongful death and/or malpractice.  Baxter did not overrule Montana case law imposing civil liability on doctors who cause or fail to prevent a suicide. See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, Para 32-33 (1999).  Other cases include  Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997)(affirming a civil judgment against a physician who had prescribed an "excessively large dosage" of barbiturates to a suicidal patient who then killed herself with the barbiturates).

For another example, see William Dotinga, "Grim Complaint Against Kaiser Hospital," at http ://www.courthousenews.com/2012/02/06/43641.htm  This case is relevant to Baxter given that patient consent is the linchpin to Baxter's defense to prosecution. Moreover, even if a doctor avoids prosecution, there is civil liability. . . .

Letter from Craig Charlton to Montana Physicians, dated June 20, 2012.  To see a print copy of the entire letter, click here.   

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[1]  Baxter v. Montana, 354 Mont. 234, para. 50, 224 P.3d 1211 (2009).

[2]  To see the entire Jackson/Bowman analysis, go here: http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

MMA Adopts Helpful Position Statement

The Montana Medical Association's Board of Trustees has adopted a new position statement: Licensing Boards "should not adopt rules that would expand the scope of practice of Montana's licensed health care professionals without first having clear statutory authorization to do so."[1]

Our legal challenges to Position Statement No. 20 include this same reasoning, that Position Statement No. 20 is an invalid expansion of a physician's scope of practice without statutory authority.[2]

We are encouraged to see the Montana Medical Association adopting a similar position. 

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[1]  The MMA's new position statement can be viewed in its entirety by clicking here.
[2]  Position Statement No. 20 is subject to two legal challenges by Montanans Against Assisted Suicide (MAAS).  The first is a formal petition to the Board of Medical Examiners, to request an actual ruling, which has been denied to date.  That petition can be viewed by clicking here.  The second legal challenge is a petition to the First Judicial Court of Lewis and Clark County setting forth MAAS' substantive arguments.  To view the amended petition, filed on October 12, 2012, click here; to view the attachments to that petition, click here.

MMA Position Statement on Scope of Practice

The Montana Medical Association Bulletin sets forth the following Position Statement adopted by the MMA Board of Trustees on September 7, 2012.  To view a print copy, click here.

Expansion of Scope of Practice by Professional Licensing Boards

The Montana Medical Association recognizes that professional licensing boards authorized by Montana state statutes to license individuals in certain health care professions ("health care licensing boards") have, at times, attempted to and actually have expanded the scope of health care licensees without having the statutory authority to do so. This practice is of concern to medical physicians and other licensed health care professionals.

Laws Against Assisted Suicide are Constitutional

Laws prohibiting assisted suicide in Montana are constitutional under both the US Constitution and the Montana State Constitution.  This is true for three reasons. 

1.  The US Supreme Court Upheld Constitutionality

In 1997, the Supreme Court of the United States upheld the constitutionality of a statute prohibiting assisted suicide under the United States Constitution.  In Washington v. Glucksberg, 521 U.S. 702, 705-6, 117 S.Ct. 2258, 2261 (1997), the Supreme Court stated:

"The question presented . . . is whether Washington's prohibition against 'caus[ing]' or 'aid[ing] a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not."

2.  Montana's Constitution Does Not Include a "Right to Die"

Montana's Constitution was adopted in 1972.  Archived documents show that during the Constitutional Convention, a proposed right to die was considered and rejected.[1]  

With this history, there is no right to die in the Montana Constitution.[2] 

3.  The Montana Supreme Court's Constitutional Ruling

In Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (2009), the Supreme Court of Montana vacated a district court decision holding that there is a Constitutional right to physician-assisted suicide under the Montana Constitution.[3] The Supreme Court stated:  "The District Court's ruling on the constitutional issues is vacated . . ."[4]

Montana's Constitution Does Not Include a "Right to Die"

By Margaret Dore

In 1972, Montana held its Constitutional Convention.  The Bill of Rights Committee was charged with drafting a declaration of rights to be included in the constitution.  On February 2, 1972, the Committee received "Delegate Proposal 103," which proposed a right to die.[1] 

On February 3, 1972, the Committee held a hearing on the "right to die."[2]  Therein, "Mrs. Joyce Franks presented the theory to the Committee that all persons should be able to choose his own death with dignity."[3]  She also submitted a seven page document titled "Bill of Rights Speech."[4]  In this document, she proposed wording for a constitutional right to die and also discussed her father and the right to die in terms of physician-assisted suicide and/or euthanasia.[5] 

Other persons also submitted testimony.[6]

On February 9, 1972, the Bill of Rights Committee rejected Proposal #103, the "Right to Die."[7]   

On February 12, 1972, Joe Roberts appeared before the Committee in support of the right to die.[8]  His written remarks noted the reason for the Committee's rejection of the right to die, as follows:

"[T]he consensus of the delegates I have talked to indicated that while they were sympathetic to Mrs. Frank's personal tragedy, they were afraid of the implications of stating broadly a Right to Die in the Montana Constitution.[9] 

On March 18, 1972, the Committee's "Declaration of Rights" was adopted by the full convention without the right to die.[10]

Today, the Committee's Declaration of Rights is Article II of the Montana Constitution.[11] 

With this history, there is no right to die in the Montana Constitution: it was proposed; advocated by Mrs. Franks and other persons; and rejected.

MAAS Requests Ruling From Board, It's About Time

On September 26, 2012, Montanans Against Assisted Suicide submitted a formal petition to the Board of Medical Examiners requesting that the Board rule on Position Statement No. 20.  A hard copy of the petition can be viewed by clicking here.  The petition states in part:

"This matter has been pending before the Board for a year. On May 2, 2012, MAAS filed a formal request to vacate Position Statement No. 20, which implies that assisted suicide and/or euthanasia is legal in Montana, which is not the case. On July 6, 2012, MAAS submitted additional argument to the Board.

MAAS’s grounds for relief were twofold: (1) The Board enacted Position Statement No. 20 without required notice and participation by the public; and (2) the Board lacks statutory, constitutional and/or rulemaking authority to enter such a statement. These grounds for relief are explained in more detail in the materials previously filed with the Board on this issue.