This blog article was intended to be published much earlier in the year. Better late than never. In December, the Montana Supreme Court issued its opinion in Baxter v. State, the controversial Aid in Dying case. The Court held that, under current Montana law, “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.” The Court stated:

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.

The Court declined to decide the case on constitutional grounds–although Justice Nelson filed a concurring opinion arguing that the Court should have ruled Montana’s Privacy and Dignity Clauses under Article II, Sections 4 and 10 of the Montana Constitution protect an individual right to physician aid in dying:

In conclusion, while I join the Court’s decision, I also would affirm the District Court’s ruling on the constitutional issues. I agree with the Court’s statutory analysis, but I also agree with Judge McCarter that physician aid in dying is firmly protected by Article II, Sections 4 and 10 of the Montana Constitution. Under these sections, individuals who are mentally competent and incurably ill and face death within a relatively short period of time have the right to self-administer, at a time and place of their choosing, a life-ending substance prescribed by their physician. The physician simply makes the medication available to the patient who requests it and the patient ultimately chooses whether to cause her own death by self-administering the medicine.

This right to physician aid in dying quintessentially involves the inviolable right to human dignity—our most fragile fundamental right. Montana’s Dignity Clause does not permit a person or entity to force an agonizing, dehumanizing, demeaning, and often protracted death upon a mentally competent, incurably ill individual for the sake of political ideology, religious belief, or a paternalistic sense of ethics. Society does not have the right to strip a mentally competent, incurably ill individual of her inviolable human dignity when she seeks aid in dying from her physician. Dignity is a fundamental component of humanness; it is intrinsic to our species; it must be respected throughout life; and it must be honored when one’s inevitable destiny is death from an incurable illness.

The case leaves open the issue as to whether the Dignity and Privacy Clauses do in fact protect an individual right to physician aid in dying. The issue will likely be addressed in future legislation or initiatives and subsequent court challenges. You can read the New York Times article here. You can read the opinion on the Montana Supreme Court’s website.