End-of-Life Choice, Death with Dignity, Palliative Care and Counseling

Posts TaggedBaxter v Montana

Montana Supreme Court Upholds Right of Montanans to Aid in Dying

HELENA, MT – Montana physicians, terminally-ill patients and Compassion & Choices, the nation’s largest and oldest nonprofit organization working to improve care and expand choice at the end of life, today hailed the Montana Supreme Court’s ruling that terminally ill Montanans have the right to choose aid in dying under state law. There is no further appeal from this decision, as the Montana Supreme Court is the highest court available to decide State issues.

Compassion & Choices Legal Director Kathryn Tucker, co-counsel to the plaintiffs/respondents, said, “This case was about the right of mentally competent, terminally ill patients to request a prescription for medication from their doctors which they can ingest to bring about a peaceful death. The Montana Supreme Court has determined that this is a choice the public policy of Montana supports. Montanans trapped in an unbearable dying process deserve, and will now have, this end-of-life choice. This is the first state high court to find protection of this choice, and makes clear that in Montana, patients are able to make this choice and physicians can provide this care without risking sanction.”

Roberta King, of Missoula, the daughter of plaintiff Bob Baxter, said, “My father died without the peace and dignity he so dearly wanted for himself and others. He feared when he filed this lawsuit that he would not live long enough to benefit from it. I’m sure he would be deeply gratified that other terminally ill Montanans will have the choice and comfort that aid in dying affords them.”

Dr. Stephen Speckart, a Missoula cancer specialist and a plaintiff in the lawsuit, said, “This decision affirms that a terminal patient’s fundamental right to self-determination will guide end-of-life health decisions. I regularly treat patients dying from cancer, and many of these deaths are slow and painful. Terminal patients will no longer be forced to choose between unrelenting pain and an alert mental state as they approach the end of their lives from terminal diseases. The comfort this brings to their last days can have an immeasurable benefit.”

Missoula attorney Mark Connell, who argued the case to the Supreme Court on behalf of the plaintiff physicians and patients, described the decision as “a victory for individual rights over government control.” Connell added: “The Montana Supreme Court has now recognized that, where intensely personal and private choices regarding end-of-life care are involved, Montana law entrusts those decisions to the individuals whose lives are at stake, not the government. I know Bob Baxter would be very pleased that the court has now reaffirmed that these choices should be left to the terminally ill people in our state.”

Steve Johnson, 71, of Helena, is terminally ill with brain cancer, hailed the decision and asked the Montana medical profession to provide patients like himself with aid in dying. “I approach the end of my life with a clear mind, and I would like to work with my doctor to minimize the pain and maximize the peacefulness in my dying. I would like my physician to be able to respect and honor my choice to die with dignity. Adults like myself should have the option, if terminally ill, to request physician aid in dying.
It’s only compassionate to minimize unnecessary suffering at the end of life, and to let me make the choice about how much suffering to endure, based on my own values and beliefs,” said Johnson.

Montana State Sen. Christine Kaufmann, Rep. Dick Barrett and twenty-nine other state legislators; the American Medical Women’s Association, the American Medical Students Association, and a coalition of Montana clinicians; the American College of Legal Medicine; the American Civil Liberties Union of Montana; the Montana Human Rights Network; the Northwest Women’s Law Center; terminal patients’ surviving family members; Montana religious leaders; and Montana’s leading constitutional law experts had urged the Court to find in favor of the terminal patient’s right to receive aid in dying from their physicians.

Compassion & Choices encourages terminally ill patients to call 800 247-7421 if they would like information about aid in dying, or suggestions on how to open a dialogue with their physician and loved ones.

Montana Court to Decide Claim of Right to Aid in Dying

Robert Baxter was by all accounts a tough man. Even in the end, last year, as lymphocytic leukemia was killing him, Mr. Baxter, a 76 year-old retired truck driver from Billings, Mont., fought on. But by then he was struggling not for life, but for the right to die with help from his doctor.

Now, in death, Mr. Baxter is at the center of a right-to-die debate that could make Montana the first state in the country to declare that medical aid in dying is a protected right under a state constitution.

The state’s highest court on Wednesday will take up Mr. Baxter’s claim that a doctor’s refusal to help him die violated his rights under Montana’s Constitution — and lawyers on both sides say the chances are good that he will prevail.


What’s Next for Montana?

It is currently legal for terminally ill, adult, competent Montana residents to seek the aid of a physician to hasten death and a physician can legally provide that aid. Meanwhile, District Court Judge Dorothy McCarter’s December 2008 determination that Montanans have this right has been appealed to the Montana Supreme Court. The Court is expected to issue its ruling sometime in this year. If the court affirms McCarter’s ruling, the right to a physician’s aid in dying (PAD) will become a permanent part of Montana’s legal framework. Overturning it would require passage of a constitutional initiative. While I never say “never,” it is difficult, in a state whose population fiercely values individual autonomy and independence, to envision voters taking away the right for a terminally ill adult to seek aid in dying.


If the Supreme Court rules in our favor, what’s next for Montana? The next step will be legislative, most likely during the 2011 legislative session. It will be incumbent upon that legislature to codify the right to PAD in a regulatory framework that defines terms such as “terminal”, “competent” and “resident.” Until this is done, it will be primarily a physician’s responsibility to define these terms. This does not provide as much leeway as may be supposed. When there are “gray” areas, medical providers are ethically bound to provide care that is in line with what their peers and society view as prudent and reasonable. Thus, until Montana has specific regulations in place defining terms, Montana physicians can be expected to follow the guidelines and definitions in Oregon’s Death with Dignity regulations.


Whether the 2011 Montana legislature will undermine the spirit of this right through draconian legislation or work in good faith to provide regulatory oversight protecting vulnerable populations from abuse while providing terminally ill patients with the necessary flexibility to use this right remains to be seen. If history is any example we will be treated to both behaviors. It will be up to us, as citizens, to make sure the latter prevails.