Baxter and the Return of Physician‐Assisted Suicide

This article provides a summary of the reasoning by means of which the Montana Supreme Court defended its decision in Baxter v. Montana, 224 P.3d 1211 (Mont. 2009), that physician-assisted suicide is not punishable by way of Montana’s homicide statutes if one or more of a particular physician’s patients commit suicide by ingesting the medication that the physician in question had prescribed with just that end in view. It also provides a critique of that reasoning. The Montana Supreme Court’s reasoning centered on the issue of consent (or the victim) as a defense to a criminal charge. That defense never exists where the defendant’s conduct violated the public policy of the state. So the court had to determine what the public policy of Montana is with regard to assisted suicide. From Montana’s Rights of the Terminally Ill Act, the court drew the inference that, because the statute in question authorizes physicians to withdraw life-sustaining treatment from a patient who requests that withdrawal, the state should also permit physicians to prescribe medication that the patient in question may eventually take on his or her own initiative. I criticize the decision for misreading the statute in question and for failing to appreciate the distinction between terminating unwanted care and partnering with a patient in his or her planned suicide. In doing so, I explore the meaning of autonomy in end-of-life settings and the implications of libertarianism, as a political philosophy, for end-of-life law.