December 31, 2009
HELENA, Mont. (AP) - The Montana Supreme Court said Thursday
that nothing in state law prevents patients from seeking
physician-assisted suicide, making Montana the third state that
will allow the procedure.
Patients and doctors had been waiting for the state's high court
to step in after a lower court decided a year ago that
constitutional rights to privacy and dignity protect the right to
The Montana Supreme Court opinion will now give doctors in the
state the freedom to prescribe the necessary drugs to mentally
competent, terminally ill patients without fear of being
prosecuted, advocates said.
Steve Johnson, a 72-year-old Helena cancer patient, welcomed the
decision, saying he has talked with his doctor about ending his
"I am very concerned about the intense pain and loss of
dignity," the lifelong rancher and veterinarian said at a press
conference at the Capitol. "I've accepted my death. I approach the
end of my life with a clear mind."
The Supreme Court didn't go as far as District Judge Dorothy
McCarter of Helena did last December when she extended
constitutional protections to the procedure.
The Supreme Court decided not to determine whether the Montana
Constitution guarantees the right. Instead, it said nothing in
state law or the court's precedent indicated it was against public
policy - and pointed to laws giving patients rights to make crucial
decisions as a justification for legalizing the assistance.
"The Montana Supreme Court has determined that this is a choice
that state law entrusts to Montana patients, not to the
government," said Compassion and Choices Legal Director Kathryn
Tucker, a lawyer on the case. "Montanans trapped in an unbearable
dying process deserve, and will now have, this end-of-life
Oregon and Washington state allow assisted suicides for
terminally ill patients, with Oregon adopting the nation's first
"death with dignity" law in 1997. Tucker said Montana doctors
should now feel comfortable adopting procedures that doctors in the
other two states use.
The Montana ruling came in the case Compassion & Choices filed
on behalf of Robert Baxter of Billings and four physicians. Baxter,
who was diagnosed with leukemia 12 years ago, died of lymphoma on
Dec. 5 - the day McCarter issued her ruling.
The Montana attorney general's office had argued in court that
the decision on such a policy should be left to the Legislature.
The Supreme Court, pointing to the Legislature's own
policy-making, ruled that assisted suicide is an acceptable defense
to any homicide charges against the doctor.
"In physician aid in dying, the patient, not the physician,
commits the final death-causing act by self-administering a lethal
dose of medicine," Justice William Leaphart wrote for the court.
Justice John Warner, serving his last day on the court, wrote in
a separate concurring opinion that the court decided to leave the
constitutional issues alone because addressing them was not
Justice James Nelson, a more liberal member of the court, said
he would have extended the constitutional right to the procedure as
the lower court had.
Two judges dissented from the decision, saying the court was
reversing long-standing public policy.
"Until the public policy is changed by the democratic process,
it should be recognized and enforced by the courts," wrote Justice
Jim Rice for the minority. "In my view, the court's conclusion is
without support, without clear reason, and without moral force."