Montana: New Bill to Overturn Assisted Suicide

  

By Margaret Dore, Esq., MBA

Senator Carl Glimm will be introducing a new bill to overturn Montana's Baxter decision.  

The purpose will be to clarify once and for all that physician-assisted suicide is not legal in Montana. 

To learn more, view our Montana page at this link.

A Short History of Assisted Suicide and Euthanasia in Montana

By Margaret Dore, Esq., MBA                                                                                                          

Assisted suicide means that someone provides the means and/or information for another person to commit suicide.  If a doctor is involved, the practice may be termed physician-assisted suicide.  Euthanasia is the administration of a lethal agent by another person.

A.  Assisted Suicide

In 1895, the Montana Legislature enacted a criminal statute prohibiting assisted suicide as a "crime against the public safety."[1] In 1907, 1921 and 1947, this statute was re-codified, but its text remained unchanged.[2] The statute stated: "Every person who deliberately aids, or advises or encourages another to commit suicide is guilty of a felony."[3]

New Bill to Overturn Montana's Baxter Decision

Rep. Glimm

HOUSE BILL NO. 284

INTRODUCED BY C. GLIMM

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT CONSENT TO PHYSICIAN AID IN DYING IS NOT A DEFENSE TO A CHARGE OF HOMICIDE; AMENDING SECTION 45-2-211, MCA; AND PROVIDING AN EFFECTIVE DATE."

NEW DATE! Early Warning: Enjoy an Interesting Evening In Missoula Montana

Rep. Brad Tschida

Rolling Back the Suicide Epidemic:

Why are Physician-Assisted Suicide

and Euthanasia Bad News for Montana?

THURSDAY, Oct. 13, 2016, 7 p.m.
New date!

Click here to view flyer with the new date     

Presenters:   

Senator Jennifer Fielder

• Brad Tschida, Montana State Representative, a legislative leader in the fight to prevent suicide.
• Jennifer Fielder, Montana State Senator, a legislative leader in the fight to prevent suicide.
• Philip Tummarello, retired Sgt. Inspector of the San Francisco Police Department, who implemented and supervised the San Francisco Elder Abuse Task Force.
• Margaret Dore, a lawyer in Washington State where assisted suicide and euthanasia are legal, and president of Choice is an Illusion, a nonprofit corporation. 

Montana: HB 477 PASSES the House!

Yesterday, HB 477, which overrules Montana/s Baxter decision by clarifying that physician-assisted suicide is against public policy and prohibited, passed Montana's House of Representatives.

Montana one step closer to reversing Baxter.

Today, the Montana House of Representatives voted to pass HB 477, which clarifies that "physician-assisted suicide" is prohibited and against public policy in Montana.  

To view HB 477, please click here.

Montana board forced to remove position statement. Help us make it permanent & overturn Baxter

For the last three years, Montanans Against Assisted Suicide (MAAS) has been an integral player in keeping assisted suicide from becoming legal in Montana.  Most recently, MAAS has been prosecuting a lawsuit against the Montana Board of Medical Examiners.  The suit has already caused the Board to remove a position statement implying that assisted suicide "may" be legal in Montana.

The lawsuit, however, has also been dismissed due to the Board's removal of the position statement.  See court order here.  If MAAS does not appeal by February 11, 2014 , there will be nothing to stop the Board from re-issuing its statement, or a worse statement, the very next day.  Appeal will also allow MAAS to challenge the Baxter decision, which proponents claim legalized assisted suicide in Montana.  A MTN News article describes the situation, as follows:

 [The] position paper - in response to the lawsuit - has since been rescinded by the Board and scrubbed from its website. But [MAAS's attorney, Margaret] Dore said court action was still needed to prevent the Board from reinstating such a position.

She repeatedly asked District Judge Mike Menahan to weigh in on a Montana Supreme Court ruling known as Baxter, that envisions potential defenses to doctors charged with homicide for assisting with suicide.

Sanjay Talwani, "Montana judge hears assisted suicide arguments," MTN News, December 11, 2013.

Problems with legal assisted suicide include that it encourages people with years to live, to throw away their lives.  Legalization also creates new opportunities for elder abuse, for example, when there is an inheritance involved.  In Oregon, legalization has enabled Oregon's Medicaid program to offer the "treatment" of suicide in lieu of desired treatments (to improve the quality of life, to extend life or to cure). 

For more information, please click here.

MAAS's attorney, Margaret Dore, who is also President of Choice is an Illusion, is donating her time. Choice is an Illusion has also provided financial support for the MAAS lawsuit.  Ongoing funds are, however, needed to pay for the rest of MAAS's legal team including the Charlton Law Firm and for out of pocket expenses such as transcripts, computer research and court fees.   We are asking for your support as your finances allow.  Any amount is appreciated.
                                                                                
Choice is an Illusion is proud to have been part of MAAS' victory to force this action by the Board.  Please donate directly to MAAS, or to Choice is an Illusion as set forth below:

Please make checks payable to: MAAS, 610 North 1st St. Suite 5-285, Hamilton, MT  59840, or to Choice is an Illusion, 1001 4^th Avenue, 44^th Floor, Seattle, WA 98154

Please donate online by clicking here or here.

Thank you for your support.

Judge dismisses appeal; Montana group pleased that court addressed Baxter

Helena Montana - On December 13, 2013, District Court Judge Mike Menehan dismissed MAAS's appeal with the Montana Medical Examiners Board. The order ruled that the appeal was moot due to the Board's having recently rescinded "Position Statement No. 20."  (Order, pp. 5-8).  The order also refers to Montana's assisted suicide case, Baxter v. State, as providing a defense to a homicide charge, as follows:

On December 31, 2009, the Montana Supreme Court issued its opinion in Baxter v. State, 2009 MT 449, 354 Mont. 234, 224 P.3d 1211, in which it held that under section 45-2-211 MCA, a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a physician charged with the criminal offense of homicide.  (Order, page 2, lines 17-21).

This part of the order is consistent with Greg Jackson's and Matt Bowman's article, Baxter Case Analysis, Spring 2010 ("the Court's narrow decision didn't even "legalize" assisted suicide"). Available at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

Since Baxter, there have been two bills proposed in the Montana Legislature to legalize assisted suicide.  Both bills, SB 167 and SB 220, have failed.  Assisted suicide is not legal in Montana.

MAAS is disappointed with the dismissal, but pleased with that the order addresses Baxter, over which there is ongoing controversy as to its meaning.  MAAS will likely appeal.

* * *

For information about problems with assisted suicide and how it puts people at risk, see  http://www.montanansagainstassistedsuicide.org/p/quick-facts-about-assisted-suicide.html

"Compassion & Choices is a successor organization to the Hemlock Society"

http://helenair.com/news/opinion/readers_alley/assisted-suicide-law-could-lead-to-patient-mistreatment/article_32bac11c-4985-11e2-9338-0019bb2963f4.html?print=true&cid=print

12/19/12

Theresa Schrempp Seattle, Wash.

I am a lawyer in Washington State where assisted-suicide is legal. Robert Zimorino’s letter encourages readers to contact Compassion & Choices, a promoter of assisted-suicide (“aid in dying”).

Your readers should know that Compassion & Choices is a successor organization to the Hemlock Society, originally formed by Derek Humphry. In 2011, Humphry was the keynote speaker at Compassion & Choices’ annual meeting here in Washington State.  In 2011, he was also in the news as a promoter of mail-order suicide kits from a company now shut down by the FBI.This was after a 29 year old man used one of the kits to commit suicide.

In 2007, Compassion & Choices was a plaintiff in Montana’s assisted-suicide case. Therein, Compassion & Choices requested legalization of assisted-suicide for “terminally ill adult patients.” The definition of this phrase was broad enough to include an otherwise healthy 18 year old who is insulin dependent or a young adult with stable HIV/AIDS. Such persons can live for decades with appropriate medical treatment.

Once someone is labeled “terminal,” an easy justification can be made that their treatment should be denied in favor of someone more deserving. Those who believe that legalizing assisted-suicide will promote free choice may discover that it does anything but.

Supporting authority not included in the published letter, below:

Montana State Senator Corrects New England Journal of Medicine

Assisted Suicide is Not Legal in Montana
Dear Editor:

I am a Montana State Senator.  I disagree with your article, "Redefining Physicians' Role in Assisted Dying," claiming that assisted suicide is legal in Montana.  At the very least, Montana law is unclear.

Last year, Senate Bill 167, which would have legalized assisted suicide in Montana, failed.  This leaves assisted suicide governed by a Montana Supreme Court case, Baxter v. Montana.  An analysis by attorneys Greg Jackson and Matt Bowman describes Baxter as follows:

"The Montana Supreme Court s assisted-suicide decision . . . didn't even 'legalize' assisted-suicide. . . . After Baxter, assisted-suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[1]

Since then, competing articles have appeared in the official Montana State Bar publication disputing whether Baxter legalized assisted suicide.[2]  The editor's headline states: "Court ruling still leaves the issue open to argument." [3]

Correct reporting would be that assisted suicide is not legal in Montana and/or hotly disputed.  Thank you for your attention to this matter.

Senator Greg Hinkle
Thompson Falls, MT 

* * *

[1] Greg Jackson, Esq., and Matt Bowman, Esq., "Analysis of Implications of the Baxter Case on Potential Criminal Liability," Montanans Against Assisted Suicide & For Living with Dignity, April 2010, available at http://montanansagainstassistedsuicide.org/wp-content/uploads/2011/05/Analysis-of-Baxter.pdf                                                
[2] Senator Anders Blewett (pro article), Senator Jim Shockley and Margaret Dore (con article), "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 http://maasdocuments.files.wordpress.com/2012/07/montana-lawyer-pro-con-articles-nov-2011.pdf[3]  Id.

False & Misleading "Aid in dying" Letter

Below, a letter to physicians responding to a prior "false and misleading" letter claiming that assisted suicide is legal in Montana. To see a hard copy of this letter as sent, click here.


Dear Physician:


I represent Montanans Against Assisted Suicide & For Living with Dignity.  You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012.  The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009.  This is untrue.  I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.

Montana: Board Statement Null & Void

Today, Montanans Against Assisted Suicide & For Living with Dignity filed a request with the Montana Board of Medical Examiners to vacate its recent position statement, which misstates the Baxter decision and erroneously implies that assisted suicide is legal in Montana.  This request is brought for the sake of public safety.

To view the cover letter by attorney Craig D. Charlton, click here.  To view his legal memorandum, click here.  To view the attachments to that memorandum, click here. 

Montana Bar Article by Senator Jim Shockley and Margaret Dore

"No, physician-assisted suicide is not legal in Montana:

 It's a recipe for elder abuse and more" [1]

By State Senator Jim Shockley and Margaret Dore

Published in The Montana Lawyer, the official
publication of the State Bar of Montana.

There are two states where physician-assisted suicide is legal: Oregon and Washington.  These states have statutes that  give doctors and others who participate in a qualified patient’s suicide immunity from criminal and civil liability.  (ORS 127.800-995 and RCW 70.245). 

In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009).  Baxter gives doctors who assist a patient’s suicide a potential defense to criminal prosecution.  Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.  Under Baxter, a doctor cannot be assured that a suicide will qualify for the defense.  Some assisted suicide proponents nonetheless claim that Baxter has legalized assisted suicide in Montana.

Legalizing assisted suicide in Montana would be a recipe for elder abuse.  The practice has multiple other problems.

Montana Propaganda: Baxter & Assisted Suicide

By Margaret Dore, Esq.

Barbara Coombs Lee, President of Compassion & Choices, has posted a propaganda piece on Huffington Post falsely claiming that a physician who assists a suicide in Montana is "safe" from prosecution.  My request for equal time to correct the record on Huffington Post has been ignored.  A discussion of the actual law of Montana is set forth below. 

A.  Assisted Suicide

There are just two states where physician-assisted suicide is legal: Oregon and Washington.  These states have statutes that give doctors and others who participate in a qualified patient’s suicide, immunity from criminal and civil liability.  (ORS 127.800-995 and RCW 70.245). 

In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009).  Baxter gives doctors who assist a suicide a potential defense to criminal prosecution.  Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.  Under Baxter, a doctor cannot be assured that a particular suicide will qualify for the defense. 

B.  The Baxter Decision is Wrong

Baxter found that there was no indication in Montana law that physician-assisted suicide, which the Court termed “aid in dying,” is against public policy.  (354 Mont. at 240, ¶¶ 13, 49-50).  Based on this finding, the Court held that a patient’s consent to assisted suicide “constitutes a statutory defense to a charge of homicide against the aiding physician.”  (Id. at 251, ¶ 50).

Baxter, however, overlooked caselaw imposing civil liability on persons who cause or fail to prevent a suicide.  See e.g., Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Baxter also overlooked elder abuse.  The Court stated that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.”  (354 Mont. at 239, ¶ 11).  The Court thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.

The Baxter decision is fundamentally flawed and wrong.

C.  Doctors are not "Safe" Under Baxter

Baxter is a narrow decision via which doctors cannot be assured that a particular suicide will qualify for the defense. Attorneys Greg Jackson and Matt Bowman provide this analysis:

"If the patient is less than 'conscious,' is unable to 'vocalize' his decision, or gets help because he is unable to 'self-administer,' or the drug fails and someone helps complete the killing, Baxter would not apply. . . .

http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

Even if a doctor "beats the rap" on prosecution, there is the issue of civil liability.  See Krieg and Nelson, supra.  Like O.J. Simpson, a doctor who escapes criminal liability could find himself sued by a family member upset that he "killed mom."  The doctor could be held liable for civil damages.

* * *

Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide. (www.choiceillusion.org)  She is also an attorney in Washington State where assisted suicide is legal.

* * *

[1] http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html