Why Choice is an Illusion?
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.
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.
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.
* * *
