Death With Dignity in Montana

In Montana, a court case gives terminally ill patients the right to use prescribed life-ending medications

Recently, there’s been a dramatic increase in the number of states considering death with dignity laws. Sometimes called “assisted suicide” or “right to die” initiatives, these laws make it possible for terminally ill patients to use prescribed medication to end their lives peacefully rather than suffering a painful and protracted death.

The catalyst for greater national attention to this issue was 29-year-old Brittany Maynard, a woman diagnosed with terminal brain cancer who moved from California to Oregon to end her life in 2014.  Maynard chose Oregon because California had not yet passed its aid-in-dying law, and Oregon was one of just a few states to allow terminally ill patients to legally end their lives.

While several states -- including California, Oregon, Washington, and Vermont -- have now passed death with dignity laws by voter referendum or through legislation, Montana has recognized a terminally ill patient’s right to use prescribed life-ending medications through a court case, Baxter v. Montana. (354 Mont. 234.)

In 2009, the Montana Supreme Court heard the case of Robert Baxter, a retired truck driver diagnosed with terminal lymphocytic leukemia, who wanted the option of taking medication prescribed by his doctor to end his life. Baxter and his doctors challenged the application of Montana’s homicide statutes to physicians who prescribe lethal medication to terminally ill patients. The court ruled that:

  • While the state constitution did not guarantee the right to receive aid in dying, there is “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy.”
  • Montana’s Rights of the Terminally Ill Act shields physicians from criminal liability for acting according to the patient’s end-of-life wishes, and the act should be extended to include physicians who provide aid in dying to consenting, mentally competent, terminally ill patients. (To read Montana’s Rights of the Terminally Ill Act, see Montana Code § § 50-9-101 and following.)

(Baxter v. Montana, 354 Mont. 234.)

This article first clarifies some confusing language related to death with dignity laws and then discusses the requirements for obtaining a prescription for life-ending medication under Baxter v. Montana.

Death With Dignity, Assisted Suicide, Right to Die: What’s In a Name?

“Death with dignity” is one of the most commonly accepted phrases describing the process by which a terminally ill person ingests prescribed medication to hasten death. Many people still think of this process as “assisted suicide” or “physician assisted suicide.” However, proponents of death with dignity argue that the term “suicide” doesn’t apply to terminally ill people who would prefer to live but, facing certain death within months, choose a more gentle way of dying. In fact, the Montana Supreme Court, in Baxter v. Montana, specifically notes that the state’s “aiding or soliciting suicide” statute does not apply to a “specific situation in which a terminally ill patient seeks a means by which he can end his own incurable suffering.” (See Baxter v. Montana and Montana Code § 45-5-105.)

Increasingly, health organizations are turning away from the term “suicide” to describe a terminally ill patient’s choice to reduce the suffering of an inevitable death. The phrase “aid in dying” is becoming a more accepted way to refer to this process.

You may also see the phrase “right to die” used in place of “death with dignity.” However, “right to die” is more accurately used in the context of directing one’s own medical care -- that is, refusing life-sustaining treatment such as a respirator or feeding tubes when permanently unconscious or close to death. You can provide your own health care directions by completing a Montana living will and health care power of attorney. (See the end of this article for more information.)

Death With Dignity Requirements in Montana

The states that have death with dignity laws on the books require patients seeking a prescription for life-ending medication to meet detailed requirements. However, although Baxter v. Montana states that physician-assisted dying is not illegal in Montana, the ruling provides few guidelines for doctors or patients wishing to discuss or pursue aid in dying. According to the Montana Supreme Court, to request a prescription for life-ending medication the patient must:

  • be at least 18 years old
  • be terminally ill
  • be mentally competent, and
  • self-administer the prescribed medication.

(See Baxter v. Montana, 354 Mont. 234.)

In the years since the Baxter decision, Montana legislators have introduced a number of bills in efforts to clarify the state Supreme Court’s ruling on physician-assisted dying. In the 2015 session, the legislature deliberated a bill modeled on Oregon’s Death with Dignity Act, which would offer specific guidelines for patients and physicians who wish to discuss or pursue aid in dying (SB202), as well as bills that would make medical aid in dying a criminal offense (HB328 and HB477). However, the 2015 legislature adjourned on April 28, 2015 without passing any of these bills, allowing the Baxter decision to continue to govern aid in dying in Montana.

Learn More

For news and more information on death with dignity in Montana, visit Compassion and Choices Montana.

To find out more about the history and current status of death with dignity laws in the United States, visit the website of the Death With Dignity National Center.

For information about appointing a health care agent and making known your own wishes for medical care at the end of life, see the Living Wills & Medical Powers of Attorney section of Nolo.com.

Updated: 5/18/2016

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