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By Margaret Dore, Esq.*
House Bill 505 clarifies the offense of aiding or soliciting suicide. The bill’s other purpose is to prevent the legalization of physician-assisted suicide.
In the two states where assisted suicide is legal, Oregon and Washington, problems have emerged, including that: (1) people with years to live are encouraged to throw away their lives; (2) new paths of elder abuse have been created; and (3) steerage to suicide by the Oregon government health plan has been documented and is ongoing.
B. The Misinformation Campaign
Suicide proponents, apparently to deflect attention away from these problems, have embarked on a misinformation campaign, which is discussed and responded to below.
1. Assisted suicide is not "already legal"
Proponents claim that physician-assisted suicide, which they term "physician aid in dying," is already legal under the Montana Supreme Court decision Baxter v. State. That decision, however, merely gives doctors a potential defense to prosecution against a homicide charge. Moreover, a bill that would have legalized assisted suicide, SB 220, recently failed in the Senate Judiciary Committee.
In 2011, Senator Anders Blewett sponsored a similar bill, SB 167, which also failed. During a hearing on that bill, he conceded that assisted suicide is not legal in Montana. He said: "under the current law ... there's nothing to protect the doctor from prosecution." During that same hearing, Dr. Stephen Speckart said: "most physicians feel significant disease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision."
2. Doctors, jailers and other persons face civil liability
In Montana, there is also potential civil liability for persons who cause or fail to prevent a suicide. Such liability is typically imposed in a hospital or jail setting.
3. HB 505 is limited to the offense of "aiding or soliciting suicide"
HB 505 clarifies Montana’s existing prohibition against aiding or soliciting suicide in Section 45-5-105, MCA. The bill clarifies: (1) that physician-assisted suicide is a form of aiding or soliciting suicide; and (2) that a victim’s consent is not a defense.
With these two clarifications, Baxter’s holding, that consent to physician-assisted suicide is a defense, is overruled.
HB 505 also gives doctors a clear safe harbor by excluding from its scope, palliative care and withholding or withdrawing treatment under the Rights of the Terminally Ill Act and the statute governing do not resuscitate orders (Title 50, chapters 9 and 10). HB 505 does this by excluding such care from the definition of "physician-assisted suicide." HB 505 states:
"(b)(i) 'Physician-assisted suicide', also known as physician aid-in-dying, means any act by a physician of purposely aiding or soliciting another person to end the person's life, including prescribing a drug, compound, or substance, providing a medical procedure, or directly or indirectly participating in an act with the purpose of aiding or soliciting suicide.
(ii) The term does not include end-of-life palliative care in which a dying person receives medication to alleviate pain that may incidentally hasten the dying person's death or any act to withhold or withdraw life-sustaining treatment authorized pursuant to Title 50, chapters 9 and 10." (Emphasis added).
4. HB 505 does not affect the Rights of the Terminally Ill Act
HB 505 Proponents claim that HB 505 would weaken the Rights of the Terminally Ill Act. However as set forth above, the Rights of the Terminally Ill Act is outside the scope of HB 505. The Act is unaffected by HB 505.
5. Doctors will continue to be able to answer patient's questions; spouses etc. will be able to participate in the process
Proponents also claim that HB 505 goes beyond prohibiting assisted suicide:
"by putting a physician at risk of prosecution for answering a patient’s questions about any of a variety of death hastening options, such as directing deactivation of a cardiac device, directing withdrawal of a ventilator or feeding tube, or provision of palliative sedation; and [that] a spouse, child or friend could be prosecuted for driving the patient to the doctor’s office for the discussion."
Once again, the claim is untrue. The above actions, authorized under the Rights of the Terminally Ill Act, are outside the scope of HB 505.
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Margaret Dore is a lawyer in Washington State where assisted suicide is legal. She has her own law practice and is a former Law Clerk to the Washington State Supreme Court. She is also President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide. She was an amicus curiae in Baxter v. State. For more information, see www.margaretdore.com and www.choiceillusion.org
 For more detail and backup documentation, see Margaret K. Dore, “Vote ‘Yes’ on HB 505,” available at http://maasdocuments.files.wordpress.com/2013/02/vote-yes-on-hb-505.pdf
 Baxter held that a patient’s consent to assisted suicide “constitutes a statutory defense to a charge of homicide against the aiding physician.” Baxter, 354 Mont. 234, 251, ¶50 (2009). See also Greg Jackson & Matt Bowman, “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html
 A legal and policy analysis against SB 220 was filed in the Senate Judiciary Committee and is available here: http://www.montanansagainstassistedsuicide.org/p/sb-220-tabled.html
 See transcript of the Hearing on SB 167, at http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf
. Krieg, 239 Mont. 469, 472-3 (1989) states: "The general rule . . . is that '[n]egligence actions for the suicide of another will generally not lie since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility" . . . There are two . . . exceptions to this rule. The first exception deals with causing another to commit suicide . . . The second exception allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable. These situations typically involve hospitals or prisons."
 See HB 505, page 1, lines 14 to 17.
 HB 505, page 1, lines 22 to 28.