The Supreme Court of Montana vacated a trial judge’s ruling that the Constitution of Montana prohibited assisted suicide for the terminally ill—but construed the state’s living will law as permitting doctors to prescribe lethal overdoses if the patient self administers.  This is odd because that approach was barely addressed—a matter acknowledged by the court since the overwhelming focus was on the constitutional aspects of the case—and it would thus seem to me that a motion for reconsideration is in order so this approach can be more fully briefed. From the conclusion of the majority opinion:

In conclusion, we find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. The “against public policy” exception to consent has been interpreted by this Court as applicable to violent breaches of the public peace. Physician aid in dying does not satisfy that definition. We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient—not the physician—commits the final death-causing act by self-administering a lethal dose of medicine.


Furthermore, the Montana Rights of the Terminally Ill Act indicates legislative respect for a patient’s autonomous right to decide if and how he will receive medical treatment at the end of his life. The Terminally Ill Act 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. There is no statutory indication that lesser end-of-life physician involvement, in which the patient himself commits the final act, is against public policy. We therefore hold that under § 45-2-211, MCA, a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply.

Like I said: Very odd—particularly since in Vacco v. Quill, the United States Supreme Court ruled unanimously that there is relevant and legal distinction between removing unwanted life support and assisting suicide.

The good news is that it isn’t a constitutional right but permitted by the Court’s construction of a statute (despite that the authors of the legislation almost surely never intended advance directives to apply to assisted suicide).  And since the analogy is to withdrawing life support, it will be harder to expand the category of people to whom doctors can legally prescribe without running afoul of the homicide statutes.  Best of all, because it is statutory, the law can be changed or clarified.

The bad news is that the case seems to accept “aid in dying” as a legitimate medical procedure, and indeed one in which the physician is less involved in a patient’s death than when he or she withdraws life support.  But we are generally not talking about patients on life support.  Thus, this bizarre approach will now be attempted by Compassion and Choices in other states.

Let us hope this matter is reconsidered to allow full briefing on the point.  Absent that, let us hope that the Montana Legislature clarifies the law as not applying to prescribing lethal doses for suicide.

Happy New Year.

Articles by Wesley J. Smith

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