First Impressions Are Deceiving: The Montana Supreme Court’s Ruling on Physician Aid in Dying

Bryan Hilliard, Ph.D.

Author’s Note: This is the first in a two-part commentary. The second part focuses on Justice James Nelson’s concurring opinion.


            This past New Year’s Eve, the Montana Supreme Court handed down its much anticipated ruling in Baxter et al. v. State of Montana. At issue in the case was whether terminally ill, competent adult patients enjoy a right to physician-assisted suicide and whether this right includes protection of physicians who assist their patients from prosecution under the state’s homicide statutes. Commentaries and news accounts in the brief time since the ruling expressed disappointment that the majority did not go far enough in vindicating a competent adult patient’s right to assisted suicide. Criticisms from advocates on all sides of the debate focused on the court’s decision to settle the issue at the statutory level rather than invoking constitutional principles and justifications. But, as is often the case, first impressions are deceiving. Though the decision is a narrow one, there is much in Justice Leaphart’s majority opinion, as well as in the concurring opinion by Justice James Nelson, that warrants optimism on the part of those in favor of abolishing explicit or implicit state prohibitions of physician aid in dying. And opponents of legalized physician aid in dying may have more to fear from the ruling than they think. In other words, the decision in Baxter is worth a second look.


            Because the State of Montana does not consider suicide a crime, the majority notes at the outset that only the physician who assists a terminally ill patient to die is eligible for prosecution under Montana’s homicide statute. Fears by physicians that they are vulnerable to a homicide charge when prescribing lethal doses of medication to their dying patients force the court to analyze and apply the consent statute as a defense to a charge of homicide. Montana’s consent statute, § 45-2-211(2)(d) MCA, states that “consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.” The relevant statutory exception to this defense is “Consent is ineffective if it is against public policy to permit the conduct or the resulting harm, even though consented to.” Justice Leaphart consequently views the task of the court as determining whether consent by patients to aid in dying is against public policy. Physicians will, in other words, become vulnerable to a charge of homicide if the patient’s consent violates public policy. The court confines its analysis to two specific areas in concluding that physician aid in dying does not violate the “against public policy” exception.

            The court first surveys the case law from Montana and other states to determine how the “against public policy” provision has been applied and whether physician aid in dying might fall within that category of cases not meeting the exception against a charge of homicide. The court’s survey reveals that in assault cases involving violent and aggressive acts the victim’s consent to such acts cannot be used by the defendant as a defense to assault charges. Referencing several of the surveyed cases, Justice Leaphart summarizes by observing, “The bar brawler, prison fighter, BB-gun shooter, and domestic violence aggressor all committed violent acts that directly caused harm and breached the public peace. It is clear from these cases that courts deem consent ineffective when defendants directly commit blatantly aggressive, peace-breaching acts against another party.”


            Are instances of physician aid in dying relevantly similar to violent acts covered under legal precedent? Justice Leaphart answers with a resounding “no.” Physicians who write lethal prescriptions and instruct patients in their use, unlike criminal defendants, are not directly involved in the final act. The court’s understanding of the patient-physician relationship forms the foundation in support of this observation. After describing the relationship as “private, civil, and compassionate,” Justice Leaphart powerfully observes: “The physician and terminally ill patient work together to create a means by which the patient can be in control of his own mortality. The patient’s subsequent private decision whether to take the medicine does not breach public peace or endanger others.” One would hope that even opponents of physician assisted death recognize that assisted suicide is unlike the barroom brawl or the case of spousal abuse. What is noteworthy here is that the court supports its conclusion by appealing to a specific characterization  of the special relationship between patient and doctor, a characterization that emphasizes trust between a doctor and her patient as well as one of the central goals of medicine—relief of suffering.   


            To further its conclusion that physician aid in dying does not violate public policy, the court next turns to an analysis of Montana’s Rights of the Terminally Ill Act (Title 50, chapter 9, MCA), (Terminally Ill Act). Montana’s legislature intended to recognize and respect the autonomy and privacy rights of terminally ill Montana citizens by codifying a number of provisions intended to honor the wishes of patients near the end of life. The court catalogues and reviews select provisions of the Terminally Ill Act, including: 1) immunity for physicians from criminal, civil, and professional liability for following the wishes of competent patients to withhold or withdraw life-sustaining treatment; 2) life-sustaining treatment defined as any medical procedure or intervention that “serves only to prolong the dying process”; 3) the patient’s death not to be classified as a suicide or homicide; 4) criminalizing the failure of medical professionals to follow a patient’s end-of-life instructions; and 5) charging the Attorney General with establishing and maintaining a registry and educational program to facilitate understanding of end-of-life decision-making among the citizens of Montana.  In discussing these provisions, the court makes and applies distinctions that lie at the very heart of the debate over the legality (and morality) of medically assisted suicide. These distinctions are the clearest evidence that first impressions are deceiving; evidence that critics of the majority opinion—whatever side of the debate they may take—should examine Justice Leaphart’s reasoning in more depth. Two observations from the court are worth highlighting in this regard.


            The Terminally Ill Act permits patients to request the withholding or withdrawal of life-sustaining treatments and shields physicians from liability for honoring these requests. The dissent in Baxter echoes what many commentators in law and ethics have maintained for years: withdrawing treatment is an act of omission, an indirect hastening of death. Such indirect acts of omission, unlike direct acts of commission, are legitimate in that what is intended is honoring a patient’s informed choice, not hastening the patient’s death.  The Terminally Ill Act, so the dissent and many others would claim, only permits the “taking away” or the “refraining from giving” life-sustaining medical treatment. The majority vehemently disagrees and characterizes the withholding or withdrawing of treatment as a direct act or direct participation by physicians in the hastening of a patient’s death. Citing Webster’s Third New International Dictionary of the English Language, the majority asserts “’withdrawal’ is ‘the act of taking back or away’ something that was granted. The ‘giving’ is an act, as is the ‘taking away’. The Terminally Ill Act authorizes physicians to commit a direct act of withdrawing medical care, which hastens death.” Since the Montana legislature, through the Terminally Ill Act, sanctions direct acts by physicians in hastening the deaths of terminally ill patients who issue instructions to that effect, the direct of hastening of death cannot be against public policy.  


            The majority’s second observation proves to be just as striking as its conclusion that withdrawal of life-sustaining medical treatment is a direct act. Within the proper meaning and scope of the provisions of the Terminally Ill Act, physician aid in dying requires less involvement, less direct action by the physician, than withdrawing treatment. When physicians prescribe lethal doses of medication and instruct terminally ill patients on their use, they are only indirectly making available to patients the means by which to hasten death. It is the patient her/himself who makes the final choice of whether to take or self-administer the medication. It is the patient her/himself who, if the choice has been made, actually takes or self-administers the medication. Just as it is not against public policy to permit (and shield from liability) physicians to directly honor the autonomy rights of terminally ill patients by directly withholding or withdrawing life-sustaining treatment, it is not against public policy to permit the “lesser involvement” by a physician who prescribes lethal doses of medication. The majority asserts, “In light of the long-standing, evolving and unequivocal recognition of the terminally ill patient’s right to self-determination at the end of life, it would be incongruous to conclude that a physician’s indirect aid in dying is contrary to public policy.”


            Other states—Connecticut and Massachusetts, for example—are currently examining whether state statutes or state constitutions might permit competent, terminally ill adults to receive assistance from physicians in hastening their deaths. In one sense, of course, the Montana Supreme Court’s ruling in Baxter v. Montana will carry little weight in other jurisdictions; the court applies and interprets specific Montana statutes to a specific fact pattern. But the ruling from Montana, by claiming that physician assisted suicide is not against public policy, may find a broader audience and a broader application. By highlighting the special nature and significance of the patient-physician relationship, defining the withdrawal of life-sustaining treatment as direct and intentional, and characterizing physician aid in dying as indirect hastening of death, the majority may have begun the process of turning current legal and ethical concepts regarding assisted suicide on their head. We can and should look forward to a vigorous debate over the merits of these three claims asserted by Justice Leaphart.