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
The court first surveys the case law from
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).
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
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