A Short History of Assisted Suicide in Montana

By Margaret Dore, Esq., MBA
Updated July 10, 2014

Assisted suicide means that someone provides the means and/or information for another person to commit suicide.  When a physician is involved, the practice is physician-assisted suicide.

A.  Assisted Suicide

In 1895, the Montana Legislature enacted a criminal statute prohibiting assisted suicide as a "crime against the public safety."[1]  In 1907, 1921 and 1947, this statute was re-codified, but its text remained unchanged.[2]  The statute stated: 
"Every person who deliberately aids, or advises or encourages another to commit suicide is guilty of a felony."[3]

B.    The Constitutional Convention

In 1972, Montana held its constitutional convention.  At that time, the convention’s Bill of Rights Committee considered and rejected a proposed “right to die.”[4]  The testimony supporting this proposal had included an argument to allow physician-assisted suicide in the case of a painful death.[5]

 On June 6, 1972, the new Montana State Constitution was ratified by the people without the proposed right to die.[6]  This is the present Constitution of the State of Montana.[7]

C.  A New Criminal Code

In 1973, the Legislature enacted a new criminal code drafted by the Criminal Law Commission.  The new Code moved the prohibition against aiding a suicide to the homicide statutes.[8]  If the suicide occurred, the offense would be homicide.[9]  If the suicide did not occur, the offense would be “aiding or soliciting suicide.”[10]  The Criminal Law Commission Comments stated that a victim’s consent was not a defense, as follows:

"If the conduct of the offender made him the agent of the death, the offense is criminal homicide, notwithstanding the consent or even the solicitations of the victim."  (Emphasis added).[11]

The new Code did not, however, provide this clarifying information in the statutes themselves.  In 1981, the Legislature added a monetary penalty.[12] 

D.  Civil Liability

In 1989, the Supreme Court of Montana issued Krieg v. Massey, describing that civil liability can be imposed against a person who causes or fails to prevent another person’s suicide.[13]

E.  Baxter v. State

On December 8, 2008, a district court judge issued a decision holding that there is a right to physician-assisted suicide under the Montana State Constitution.[14]  On December 31, 2009, the Supreme Court of Montana vacated that decision in Baxter v. State.[15]  The vote to vacate was six justices to one.[16]

In Baxter, the Supreme Court also held that a patient’s consent to assisted suicide is a defense to a homicide charge against an assisting physician.[17]  When making this holding, the Court said that it was not bound by the Criminal Law Commission Comments, providing that a victim cannot consent, because the  language of the Comments did not appear in the statutes themselves.[18]

The Court’s decision was also based on a determination that assisted suicide is not against Montana public policy.[19]  The Court, however, overlooked elder abuse.  Baxter states that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.”[20]  Baxter thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.  The Court thereby overlooked Montana’s explicit public policy to prevent elder abuse.[21]  The Court also overlooked Krieg v. Massey describing that civil liability can be imposed against a person who causes or fails to prevent another person’s suicide.[22]  Indeed, the Court completely overlooked civil liability.[23]

F.  Not Legal

Baxter did not legalize assisted suicide.[24]  The decision is, however, confusing.  This has allowed suicide proponents to claim that physician-assisted suicide is legal in Montana.

G.  The 2013 Legislative Session:  Baxter remains in place 

In 2013, the legislative session featured two bills on assisted suicide: HB 505 sought to reverse Baxter’s holding; SB 220 sought to legalize assisted suicide.
 
HB 505 passed the House, but then died on the Senate floor.  SB 220, by contrast, was tabled in Committee.  With the failure of both bills, Baxter remains in place. 
 
Footnotes:
[1]  Section 698, Pen. C. 1895.
[2]  In 1907, § 698, Pen. C. 1895 was reenacted as § 8529, Rev. C. 1907.  In 1921, the statute was reenacted as § 11261, R.C.M.  In 1947, the statute was reenacted as § 94-35-215.
[3]  Id.
[4]  See Margaret Dore, “Montana Constitution Does Not Include a ‘Right to Die,’” Montanans Against Assisted Suicide, updated January 20, 2013, at www.montanansagainstassistedsuicide.org/p/no-right-to-die.html    
[5]  Id.
[6]  Id.
[7]  Id.
[8]  See Table of Contents at http://data.opi.mt.gov/bills/mca_toc/45_5_1.htm
[9]  See Montana Legislative Services Division, 2012 Annotations to the Montana Code Annotated, p. 271 (Annotator’s Note regarding 45-5-105, MCA).
[10]  45-5-105(1), MCA.
[11]  Criminal Law Commission Comments regarding 45-5-105, MCA. 
[12]  See 45-5-105(2).
[13]  Krieg, 239 Mont. 469, 472-3 (1989) states:  " The general rule . . . is that '[n]egligence  actions for the suicide of another will generally not lie since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility . . .'  There are two . . . exceptions to this rule.  The first exception deals with causing another to commit suicide . . .  The second exception allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable.  These situations typically involve hospitals or prisons."
[14]  Baxter v. State, 354 Mont. 234, ¶¶ 7 & 9, 224 P.3d 1211, 2009 MT 449.
[15]  Id., ¶ 51.
[16]  In Baxter, Justice James Nelson, specially concurring, was the only justice who voted to affirm a constitutional right to physician-assisted suicide under the Montana State Constitution.  See his concurrence beginning at ¶ 64.  The majority opinion issued by Justice William Leaphart vacated the district court’s constitutional ruling at ¶ 51 (“The District Court’s ruling on the constitutional issues is vacated ...”) Leaphart was joined by Justices Patricia O. Cotter, John Warner and Brian Morris.  Warner’s concurrence, ¶ 54,  states “This Court correctly avoided the constitutional issue . . .”  The dissent by Justice Jim Rice, joined by Joe L. Hegel, would have gone farther to state that there is no constitutional right to assisted suicide under the Montana State Constitution.  See ¶¶  111-116. 
[17]  Baxter, 354 Mont. at 251, ¶ 50, states: “We . . . 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.” 
[18]  The Court stated:  “[T]he comments analyze language, such as ‘agent of death,’ that does not even appear in the aid or soliciting statute or anywhere else in the Montana code.”  Baxter, 354 Mont. at 249, ¶ 42.
[19]  Baxter, 354 Mont. at 250, ¶ 49.    
[20]  Baxter, 354 Mont. at 239, ¶ 11. 
[21]  See e.g., the Montana Elder and Persons With Developmental Disabilities Abuse Prevention Act, 52-3-801, MCA; the Protective Services Act for Aged Persons or Disabled Adults, 52-3-201, MCA; and the “Montana Older Americans Act,” 52-3-501, et. al., MCA.
[22]  See Baxter in its entirety.
[23]  Id.
[24]  Attorneys Greg Jackson and Matt Bowman state: “[T]he Court's narrow decision didn't even ‘legalize’ assisted suicide. . . . After Baxter, assisted suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved.”  Analysis of Implications of the Baxter case on Potential Criminal Liability, Spring 2010, at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html