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
How does the decision of the Montana Supreme Court support patient
autonomy?
o 1) Define autonomy as you have learned via the chapter.
o 2) Describe how autonomy is reflected in the discussion of consent
presented in Baxter v. State.
Autonomy is a condition that an entity (e.g., a person or group of people) has when it can make
decisions for itself. Beauchamp and Childress^ stated that an “autonomous individual acts freely in
accordance with a self-chosen plan.” This plan can even involve a physician killing that individual via
physician-assisted suicide (PAS).
In his analysis of autonomy and consent, Justice Leaphart* argued that the autonomy afforded to
“mentally competent adult patients” by the state legislature justified this group of individuals’ right to
undergo PAS. Pertaining to whether a physician who obtains a patient’s consent for PAS has a valid
defense against the accusation of murder, Leaphart appealed to statute § 45-2-211(1) in the criminal
law section of the Montana Code Annotated (MCA), which Leaphart called the “consent statute.” It
reads in part:
The consent of the victim to conduct charged to constitute an offense or to the result thereof is a
defense.
Leaphart argued that § 45-2-211(1), which was written to address a situation where an autonomous
person grants consent for someone else to commit a crime against that person, “shielded (a physician
who assisted in a suicide) from liability” except when the person’s autonomy (and therefore consent)
was “ineffective.” With respect to this latter matter, the next lines in the statute read:
Consent is ineffective if:
(a) it is given by a person who is legally incompetent…
(b) it is given by a person who by reason of youth, mental disease or defect, or intoxication is
unable to make a reasonable judgment…
(c) it is induced by force, duress, or deception; or
(d) it is against public policy to permit the conduct or the resulting harm, even though consented
to.
In supporting the legality of PAS for autonomous patients, Leaphart prioritized patient autonomy over
several competing ethical considerations, such as the sanctity of human life and preservation of public
good, as well as several Montana legal precedents, using premises. Two of his premises were:
-
(all) the clauses in Montana’s Rights of the Terminally Ill Act (RTIA, § 50-9 parts 1-5) were irrelevant.
He asserted that the RTIA applied only to non-autonomous persons because it was only (in his
words) “created to address the situation in which patients cannot act on their own behalf and
therefore must authorize others to act for them.”
the MCA had previously decriminalized suicides (in the strict meaning of the word suicide, which is
self-killing).
-
In voicing the minority dissent, Justice Rice argued that PAS was illegal under the MCA primarily for
reasons unrelated to patient autonomy.
^ Beauchamp, T. L., & Childress, J. F. (2019). Principles of Biomedical Ethics (8th ed.). Chapter 4. Oxford
University Press.
* All electronic references used are hyperlinked in blue text. All quotes from Justices Leaphart and Rice
are from: Baxter v. State, 354 Mont. 234, 239 (Mont. 2009).

Which argument do you find more convincing?
I am more convinced by Justice Rice’s dissent because I think he more correctly applied the MCA to the
question of whether Montana statutory law permitted PAS. Instead of deftly deflecting attacks on his
own viewpoints, Leaphart simply adopted the stance that the factors he wished to ignore were
irrelevant for judicial consideration.
In 1895, the Montana legislature enacted § 698, Pen. C. and established assisted suicide as
a "crime against the public safety… Every person who deliberately aids or advises or
encourages another to commit suicide is guilty of a felony.” The legislature re-codified this
law three times without alteration: § 8529, Rev. C. (1907); § 11261, R.C.M (1921); and §
94-35-215 (1947). Leaphart decided to ignore these laws entirely, as well as the law that
replaced them, § 45-5-105 (1973).
Leaphart also rejected the validity of longstanding comments pertaining to key MCA statutes by the
MCA commissioner, who the MCA itself directs as having a responsibility to “clarify” the purpose and
relevance of existing MCA statutes. Years before Baxter v. State, the MCA commissioner negated
interpretations of two Montana statutes that Leaphart would eventually use in his support of PAS:
1. § 45-5-105, the ‘Statutory Prohibition on the Aiding or Soliciting of Suicide’ (SPASS) of 1973.
Rice asserted that PAS was obviously a type of ‘aiding of suicide,’ which the SPASS had already
deemed to be illegal (although the SPASS only specified a punishment if the attempted suicide
had failed). In doing so, Rice quoted the MCA commissioner, who had specified that the
legislature’s intent behind § 45-5-105’s wording and placement specifically in the criminal code
(as opposed to, for example, placement in the healthcare code) was to indicate that “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.*" This information directly
contradicts Leaphart, who had no rejoinder to it other than to say that § 45-5-105 was irrelevant
because it did not explicitly include within its language any specific punishment for successful
feats of PAS and that the MCA commissioner’s comments, as a rule, were irrelevant for
consideration by Supreme Court justices.
2. the RTIA of 1997. Prior to Baxter v. State, the MCA commissioner had documented that the
general intent of the RTIA was “to provide competent adults with greater freedom to control
decisions relating to their own medical care.” This statement directly contradicts Leaphart’s
assertion that the RTIA only applied to incompetent persons (which is quoted above in my
response to the first question, second to the last sentence).
Also, with respect to the RTIA’s key clause in § 50-9-205-7, Leaphart offered no meaningful rebuttal to
Rice’s objection that § 50-9-205-7 specifically stated (and still does state) that the legislature of Montana
"does not condone, authorize, or approve mercy killing or euthanasia." The efficient causes of
euthanasia and PAS are different, but the final cause is the same for both, as the word euthanasia
literally means to enable a ‘good death.’ The Montana legislature had an active law that did “not
condone, authorize, or approve” one person’s act of helping another person have a good death and had
a second active law that declared aiding or soliciting suicide to be a felony (in the absence of specifying
whether a patient-doctor relationship was or was not in effect). Thus, I question:
- even though the RTIA failed to address PAS specifically (or recognize PAS as being a morally
distinct act from “mercy killing”), does it make sense to conclude that the Montana legislature
intentionally held back from mentioning PAS in the language of the RTIA or from condemning PAS
because the legislature believed that PAS was morally acceptable when it had decided that other
means of providing a good death and aiding suicide were not?
- regarding the Montana legislature’s decision to enact the SPASS and maintain assisted suicide as
part of the criminal code as it had done since 1895, does it make sense to conclude that the
legislature’s intent was to punish only individuals who assisted and failed in carrying out another
person’s suicide and not to punish individuals who assisted and succeeded in carrying out another
person’s suicide?
Leaphart had no answers other than to say that the questions were irrelevant. Judges have a duty to
make rulings that uphold the legislature’s statutes. In this case, Rice applied the existing Montana law
more correctly than Leaphart did.
The ethical permissibility of (assisted) suicide in a particular situation can be established by first
establishing the primacy of individual autonomy over (or in coordination with) other ethical
considerations (such as beneficence) pertaining to the specific situation under consideration. However,
the supremacy (let alone invincibility) of that line of thought only becomes possible in a context where
the established source of moral authority does not forbid (assisted) suicide under any circumstance.
*direct citation: MCA Commission Comments, § 45-5-105. I was unable to find this actual publication
online, and I am indirectly citing it via Justice Rice’s comments.

What has happened in Montana since Baxter v. State? Provide a brief update
of any actions to either create legislation granting a right to PAS, or
criminalizing/denying such a right.
Legislator attempts in Montana to criminalize PAS failed in 2021 (SB290), 2019 (HB 536), and 2017 (HB
536).
Legislator attempts in Montana to legalize PAS failed in 2015 (SB 202), 2013 (SB 220), and 2011 (SB 167).
Additional reference: https://deathwithdignity.org/states/montana/
JUSTICE LEAPHART delivered the Opinion of the Court. The consent statute would
shield physicians from homicide liability if, with the patients' consent, the physicians
provide aid in dying to terminally ill, mentally competent adult patients. We first
determine whether a statutory consent defense applies to physicians who provide aid in
dying and, second, whether patient consent is rendered ineffective by § 45-2-21 l(2)(d),
MCA, because permitting the conduct or resulting harm "is against public policy."
Section 45-2-211(1), MCA, establishes consent as a defense, stating that the "consent
of the victim to conduct charged to constitute an offense or to the result thereof is a
defense." Thus, if the State prosecutes a physician for providing aid in dying to a
mentally competent, terminally ill adult patient who consented to such aid, the
physician may be shielded from liability pursuant to the consent statute. This consent
defense, however, is only effective if none of the statutory exceptions to consent
applies. Consent is ineffective if: (a) it is given by a person who is legally
incompetent to authorize the conduct charged to constitute the offense; (b) it is given
by a person who by reason of youth, mental disease or defect, or intoxication is unable
to make a reasonable judgment as to the nature or harmfulness of the conduct charged
to constitute the offense; (c) it is induced by force, duress, or deception; or (d) it is
against public policy to permit the conduct or the resulting harm, even though
consented to. The first three statutory circumstances rendering consent ineffective
require case-by-case factual determinations. We therefore confine our analysis to the
last exception and determine whether, under Montana law, consent to physician aid in
dying is against public policy. a physician who aids a terminally ill patient in dying
is not directly involved in the final decision or the final act. He or she only provides a
means by which a terminally ill patient himself can give effect to his life-ending
decision, or not, as the case may be. Each stage of the physician-patient interaction is
private, civil, and compassionate. The physician and terminally ill patient work
together to create a means by which the patient can be in control of his own mortality.
The patient's subsequent private decision whether to take the medicine does not
breach public peace or endanger others. We… find no indication in Montana statutes
that physician aid in dying is against public policy. Furthermore, the Montana Rights
of the Terminally 111 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 111 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.
TITLE 45. CRIMES
CHAPTER 2. GENERAL PRINCIPLES OF LIABILITY
Part 2. Other Factors Affecting Individual Liability
Compulsion
45-2-212.
https://leg.mt.gov/bills/mca/title_0450/chapter_0020/part_0020/section_0120/04500020-0020-0120.html
Baxter v. State, 354 Mont. 234, 239 (Mont. 2009)
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