Montana Supreme Court Makes State Third to Allow Unlimited Assisted Suicide

Bioethics   |   Steven Ertelt   |   Dec 31, 2009   |   9:00AM   |   WASHINGTON, DC

Montana Supreme Court Makes State Third to Allow Unlimited Assisted Suicide

by Steven Ertelt Editor
December 31
, 2009

Helena, MT ( — The Montana Supreme Court has officially paved the way for the state to become the third to allow the practice of assisted suicide. The high court considered a case from a now-deceased terminally ill patient who wanted the right to kill himself with assistance from a physician.

The high court did not determine if the Montana constitution guarantees a right to assisted suicide but said nothing in state law or the precedent of the court prevented assisted suicide.

“We find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy,” the high court said in its opinion.

The decision essentially has Montana joining Oregon and Washington as the only three states in the nation to allow assisted suicides. It declared assisted suicide as legal and could prevent doctors from almost any prosecution for engaging in them.

Montana law “explicitly shields physicians from liability for acting in accordance with a patient’s end-of life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive," the court said.

However, assisted suicides in Montana will likely go further as the state doesn’t have even basic limitations, restrictions or guidelines in place and the ruling could pave the way for the practice of euthanasia with little or no state oversight.

Brian Johnston, author of Death As A Salesman, a book against assisted suicide, told he is disappointed by the decision.

"The medically dependent and emotionally vulnerable are in immediate danger of their lives," he said.

He urged the pro-life movement to do more to prepare for coming battles in other states such as his, California, where assisted suicide advocates are looking to expand.

"Far too many pro-life people are unprepared for this debate," he said. "This is a battle of ideas, and lives are truly at stake."

The case is an appeal of a ruling District Judge Dorothy McCarter issued last December misusing the privacy clause of the state constitution to allow people to kill themselves with the help of a physician.

During the arguments, Anthony Johnstone, the state solicitor at the Montana attorney general’s office, opened the case for the state.

He said that if assisted suicide was a constitutional right it would not be limited to only the terminally ill and that no limits would be in place to prevent abuses, as there are in Washington and Oregon. Even then, pro-life advocates have noted several problems that have occurred following allowing it there.

Johnstone also said that physicians who don’t know a patient who wants to kill himself could write a prescription for a lethal drug to do so without previously having a doctor-patient relationship.

The judges asked questions that made it appear their mind may have already been made up.

Justice Neilsen asked, "What happens if a competent person goes to a store and buys a gun and tells the person selling it to them,’I am going to kill myself.’ Does that count as homicide? The state’s attorney says it could be homicide."

Attorneys for Compassion & Choices, the pro-euthanasia group behind the lawsuit, asked why the state should be allowed to argue that people’s lives ought to be continued beyond the point at which they want to do.

The attorney asked: If doctors can give people enough medicine to dull the pain, why can’t they take it further to the point of death. He said if we know the person is going to die, we are not taking their life away.

Montana Attorney General Steve Bullock, in documents filed with the court, said the issue of assisted suicide should be decided by the voters or the state legislature — not the courts.

"The questions posed are important, and each person’s reactions to them are deeply felt, but the answers are not to be found anywhere in the history, text, or interpretation of the Montana Constitution," Bullock said

"Plaintiffs debate at length the semantic questions surrounding the unspecified acts they call ‘aid in dying.’ This Court, however, must confront a legal question that euphemisms cannot illuminate: whether the homicide laws are unconstitutional across a broad set of vaguely defined circumstances," he added.

"Plaintiffs’ principle would extend beyond physician-assisted suicide to medical marijuana (as a constitutional matter), the sale of organs, and human cloning. This absolute conception of liberty is alien to this Court’s privacy jurisprudence," he says.

Fr. Frank Pavone, the national director of Priests for Life, weighed in on the case after the oral arguments were completed.

"Assisted suicide is an act that violates the victim’s dignity," he told

"It is a declaration that a person’s life is worthless and devoid of respect," he said. "If the Montana constitution states that the dignity of every human is inviolable, then there can be no room in that constitution for the protection of a fabricated ‘right’ that threatens the very existence of the disabled and medically vulnerable."

Oregon became the first state allowing assisted suicide following two statewide votes and legal battles.

Washington voters made the Pacific coast state the second last November after approving I-1000, a statewide ballot initiative that saw euthanasia proponents vastly outspend pro-life groups, doctors and disability rights advocates.

Sensing an opportunity to advance assisted suicide further, given the state’s expansive constitution with language promoting privacy and individual rights, euthanasia advocates filed a case for a disabled man in Montana.

Robert Baxter is the patient who won his case at the lower court level. He has since passed away.

The Montana Supreme Court received 19 amicus briefs, including one from attorneys with the Alliance Defense Fund, a pro-life group who filed their brief in April.

"Legalizing assisted suicide diminishes compassionate treatment of pain because…assisted suicide encourages the elimination of patients themselves rather than of their suffering,” the brief states. “The dignity and privacy rights of vulnerable patients require that they not be propelled into a society where they can be successfully pressured to die. Their lives are valuable and protectable by law.”

“Doctors are licensed to heal, not to kill. It should seem obvious, but the law should never allow private individuals to poison one another," ADF senior legal counsel Steven H. Aden told

ADF filed its brief on behalf of the Family Research Council, the American Association of Pro-Life Obstetricians and Gynecologists, the Catholic Medical Association, and numerous Montana physicians.

Following the initial decision, the Montana Medical Association indicated it refused to get involved and came under fire for not submitting an amicus brief supporting McCarter’s attempt to overturn the ruling.

The case is Baxter v. Montana, 09-0051, Supreme Court of Montana.

Related web sites:
ADF brief –
Death As A Salesman: What’s Wrong with Assisted Suicide –

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