By Margaret Dore
Some assisted suicide proponents, nonetheless, claim that assisted suicide is legal under Baxter. With this situation, clarifying legislation is needed. Some proponents, however, counter that any such legislation would be unconstitutional. This is untrue. See below.
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)."
Physician-assisted suicide is also called assisted suicide and "aid in dying," a term which also means euthanasia.
B. Assisted Suicide is Not Legal in Montana
In Montana, the law on assisted suicide is governed by statutes and case law. 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."
Under Baxter, this defense fails if the patient's consent cannot be shown. In that case, prosecution for homicide can go forward.
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." In short, Baxter did not legalize assisted suicide."
C. Clarifying Legislation Would be Constitutional