Baxter and the return of physician-assisted suicide.

The term "physician-assisted suicide" usefully identifies a practice that is, and should be, a source of considerable controversy these days. Typically, the practice in question involves two crucial actors: a doctor and a terminally ill patient whose death is likely to occur within a short time. Knowing the condition of the patient and responding to the patient's request, the doctor prescribes a drug that should cause the patient's death shortly after it is taken. That's the "physician-assisted" half of the practice. The "suicide" occurs, if it ever does, shortly after the patient ingests the drug. Physician-assisted suicide is legal in Oregon and Washington. Until very recently, it has been illegal in every other state, and claims to its being a federal constitutional right were rejected by the United States Supreme Court a dozen years ago in the Glucksberg and Quill decisions. (1) But a recent development in Montana has altered the landscape somewhat. On December 31 of last year, the Montana Supreme Court decided Baxter v. Montana, a case that most observers thought would clarify the status of physician-assisted suicide under Montana's constitution. (2) The court, it turns out, decided not to do that--not now, at least. It decided instead whether a physician who participates in a physician-assisted suicide in Montana--and does so in accordance with the rules that have been developed for this practice in Oregon and Washington--could lawfully be convicted of violating Montana's homicide statute after the patient died from taking the medicine that the physician prescribed. The court concluded that the physician could not be convicted of violating the homicide statute because the physician would always be able to assert the consent of the patient in question as a complete defense. That being the case, the court concluded that no rule-abiding physician practicing medicine in Montana has any reason to fear prosecution for engaging in physician-assisted suicide, regardless of what the Montana constitution might be found to say about it; so there was no need for the court to proceed to the difficult and contentious step of trying to clarify it. In Montana, as in every other state, there are exceptions to the consent defense. Consent is not a defense, for example, when the conduct in question is against public policy. For that reason, the Montana Supreme Court had to establish that physician-assisted suicide is not against Montana's public policy. Here's the argument offered by Justice Leaphart, speaking for the Baxter majority: Everyone agrees that the against-public-policy exception applies "to situations in which violent, public altercations breach public peace and endanger others in the vicinity"(p. 14). Everyone should also agree that neither a doctor's prescribing medication--even lethal medication--nor a patient's taking it in the privacy of his or her home is "comparable to the violent, peace-breaching conduct" that we have just agreed is against public policy (p. 21). The only serious question to be resolved, therefore, is this: What guidance does Montana law give when we are deciding whether doctors who prescribe lethal medication to their terminally ill patients (in assisted-suicide scenarios) should have a consent defense available to them if they are charged with homicide when one of their patients dies? The answer to that question, Justice Leaphart says, can be found in the Montana Rights of the Terminally Ill Act, especially when read in conjunction with Montana's homicide statute. The homicide statute, with its focus on causing "the death of another human being," does not, he says, criminalize either the doctor's conduct or the patient's conduct in the assisted-suicide scenario (p. 26). The Rights of the Terminally Ill Act, for its part, envisions situations in which doctors will be required to take steps that will, in all probability, result in the death of their patients. The best reading of that statute, furthermore, is one that portrays the Montana legislature as having intended "to give terminally ill patients . …