Wednesday, September 26, 2012

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.

1.  Washington v. Glucksberg

In 1997, the Supreme Court of the United States upheld the constitutionality of a state statute prohibiting assisted suicide.  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.  Baxter 

In Baxter, the district court had held that there was a constitutional right to physician-assisted suicide under the Montana Constitution.[9]  On December 31, 2009, the Supreme Court of Montana vacated this ruling.[10]  The Supreme Court stated:  "The District Court's ruling on the constitutional issues is vacated . . ."[11]

3.  The vote

Six of seven justices had voted to vacate the constitutional ruling.[12]  Four justices had done so based on the principle that constitutional rulings should be avoided.[13]  Two justices had argued that there is no right to die in the Montana Constitution.[14] 

4.  The Montana Constitution

Montana's Constitutional Convention was held in 1972.  Archived documents show that at that time, the Convention's Bill of Rights Committee had rejected a "right to die" proposal, which had included a proposed constitutional right to physician-assisted suicide.  For this reason alone, there is no constitutional right to assisted suicide in the Montana Constitution.  See the archived documents discussed below in chronological order.    

January 17, 1972

The Minutes of the First Meeting of the Bill of Rights Committee, page 3, state:

"Mr. [Wade] Dahood [Chairman of the Bill of Rights Committee] urged the entire committee to keep an open mind on all issues.  There is merit in all opinions.  As an example, - 'Do we have the right to die?'  Many people have written members of the committee on this subject already." 

February 2, 1972

On February 2, 1972, Robert Kelleher introduced Delegate Proposal 103:  "A Proposal for a new Constitutional Section Guaranteeing the Right to be Born and the Right to Die."  The text stated:  "A human fetus has the right to be born.  The incurably ill have the right not to be kept alive by extraordinary means." 

February 3, 1972

On February 3, 1972, a hearing was held on the "right to die."[15]  The Minutes, page 2, state: "Mrs. Joyce Franks presented the theory to the Committee that all persons should be able to choose his own death with dignity."  Moreover, the following documents were submitted into the record:

(1) Kenneth Henry wrote in support of "euthanasia"; "I wish to support the idea"- he also filled out a testifying form using the word, "euthanasia"; (2) Mrs. Stella Fili ___  wrote that she was against "abortion on demand" as it could lead to "euthanasia, doing away with the old, unwanted & unfit"- she also said:  "We all have the right to live, not just those who think they have the right to say who is to live or die"; (3) Joyce Franks filled out a form to testify and submitted a seven page letter (pp. 1 to 5C).  Her comments included: (page 1), a discussion of the terms, "euthanasia" and "mercy killing," and "a quick and easy medicated death"; (page 2) a discussion about assisted suicide in the last paragraph, although she didn't use that term; and page 5A, ¶3, in which she provided this discussion of physician-assisted suicide: 

"Dad asked me if the doctor would please give him something to put him to sleep right then.  I did not ask the doctor, of course, for even if he had the compassion, the law would have branded him a murderer had he consented.  Later, with Dad's general health deteriorating, and when he asked me again for pills to put him to sleep, I asked the doctor which of my medicines, and how much, I could allow Dad to take with a reasonable certainty that it would kill him.  The doctor wouldn't tell me."

Mrs. Franks' letter, page 2, proposed suggested wording for her requested right to die, which as set forth above included physician-assisted suicide.  She suggested:  "'Every citizen shall be allowed to choose the manner in which he dies.'  Period. That should be enough."

February 9, 1972

On February 9, 1972, the Bill of Rights Committee rejected Proposal #103, the "Right to Die."[16]   

February 12, 1972

On February 12, 1972, Joe Roberts provided written testimony to the Committee consisting of 8 typed pagesHis first paragraph noted the Committee's reason for its rejection of the right to die proposal, 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."  

March 18, 1972

On March 18, 1972, the Bill of Rights Committee's "Declaration of Rights" was adopted by the full convention.  The proposed "right to die" was not included.  To see the text of the preamble and each section, click hereTo see the roll call vote, click here


The Bill of Rights Committee's preamble is the Preamble in the Montana Constitution.  The Committee's Declaration of Rights is now Article II of the Montana Constitution.  There is no "right to die" listed. 

There is no right to assisted suicide in the Montana Constitution.  It was proposed by Mrs. Franks, considered by the Bill of Rights Committee and rejected.

* * *

[1]  AMA Code of Medical Ethics, Opinion 2.211, available at 
[2]  See Model Aid-in-Dying Act, 75 Iowa Law Review 125 (1989), available at (notice the letters "euthan" in the link). 
[3]  Relevant statutes governing the law of assisted suicide include 45-5-105, MCA (Aiding or soliciting suicide).
[4]  Baxter v. State, 354 Mont. 234,  ¶ 50, 224 P.3d 1211 (2009) .
[5]  Greg Jackson, Esq. & Matt Bowman, Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, ("the Court's narrow decision didn't even 'legalize' assisted suicide"), at 
[6]  Id.
[7]  Id.
[8]  See for example, "Cover Story: The aid-in-dying debate. Can a physician legally help a patient die in Montana? Court ruling still leaves the issue open to argument," The Montana Lawyer, November 2011, available at  .
[9]  The District Court's Decision and Order, dated December 5, 2008, page 19, lines 10 to 15, states:  "The Court concludes that a competent terminally ill patient has the constitutional right to die with dignity.  This right . . . necessarily incorporates the assistance of a doctor, as part of a doctor-patient relationship, so that the patient can obtain drugs that he can take to end his own life, if and when he so determines."  (Available  at ).
[10]   Baxter, 354 Mont. at 251,  ¶ 51.  
[11]  Id.
[12]  Six justices voted to vacate the district court's constitutional ruling:  Leaphart, Cotter, Warner and Morris voted to vacate on the principle that constitutional rulings should be avoided (Baxter at ¶¶ 10 & 54); Rice and Joe Hegel for Mike McGrath, voted to vacate via their dissent  in which they argued for reversal of the entire district court decision.  (Baxter at ¶¶ 96 to 119) 
[13]  See note 12.
[14]  Id.
[15]  See the Committee's official minutes for 2/3/72:  "Subject of Hearing:  18 year old vote, proposal # 13[;] Right to Die" at
[16]  The Committee Minutes state:  "The following decisions were made: . . . #103- Out . . ."