Is the Montana model working? Is it worthwhile?

Ten years after the landmark Baxter v Montana  (2009 WL 5155363 [Mont. 2009]), a colloquium was held at the University of Montana Law School in Missoula on Sept. 6, 2019. In attendance were several key players in the litigation, including Attys Kathryn Tucker and Mark Connell who successfully argued the case to the Supreme Court, Ms Leslie Mutchler, one of Robert Baxter's two daughters, Rep Carl Glimm (R-6) who has introduced seriatim bills to criminalize MAID, Hon James Nelson, retired Justice of the Montana Supreme Court who was on the Baxter panel, Prof Anthony Johnstone, the former Montana A.G., who argued the Baxter case for the State of Montana, and Sen. Diane Sands (D-), who supports MAID. Over the course of a full day, a review of how the litigation bubbled up to the Supreme Court and a review of what the court did and did NOT decide was explained. Importantly, the audience was reminded, the Court did not reach the argument that the State Constitution guarantees self determination at End of Life. This failure to buttress the holding on a constitutional provision, rather than on a statutory construction only, was deeply regretted by Justice Nelson and led, conversely, Rep Glimm to suggest that Baxter only provided a defense for any doctor prosecuted for assisting a suicide and not a substantive right.

To advance MAID in North Carolina, the Montana model is critical for two separate reasons: first, in a state like NC which has been trending Red for nearly a decade, it is important that among the states which have sanctioned MAID, there is at least one solidly Republican-dominant state. Most of the states which have enacted MAID legislation are solidly blue (NJ, VT, CA, OR, WA, DC, HI) while Colorado is arguably purple and ME is a hybrid. To convince NC GOP legislators that MAID is a bipartisan issue requires being able to point to examples around the country where Republicans have indeed supported the effort. Montana provides just such an example; and second, like NC, Montana has no statutory prohibition on "assisted suicide." An argument ensues that in the absence of a prohibition, it cannot be illegal for a doctor to write a lethal prescription to a mentally competent, physically terminal adult. That very argument was made in a UNC Law Review article this past January by Atty Kathryn Tucker. Clearly, being able to convince doctors in NC that it is legal and professionally coherent to write MAID prescriptions requires evidence that such an approach is being applied and is working elsewhere. Again, Montana is that model. There is no statutory language authorizing MAID in Montana.  Rather, Montana doctors apply the best Standard of Care in writing prescriptions, which, the argument goes, could be implemented here in NC.

So the question for the one-day decennial conference was simple:  How is the Montana model based on the Baxter decision working?

The answer unfortunately is "not so well"!!

There were always bound to be some problems with Baxter. First, unlike states with statutory language, the proper professional procedure is left to the discretion of the physician, exercising his/her best judgment of what is the appropriate Standard of Care. Should there be a 10-day, 15-day 20-day waiting period? What lethal medicine should be prescribed? Should the patient have a life expectancy of less than 6 months? What became frustrating as the day progressed is that in the absence of any reporting requirements to the MT Dept of Health, there is no way of answering those questions, because there is equally no data on how many doctors are participating, how many prescriptions have been written, how many patients have applied for MAID, etc. In the states with statutory frameworks, very robust data are readily available and regularly collated and published. In Montana, it's a black hole.

And perhaps because the legality of MAID is based on a dusty 10-year old Supreme Court decision, there is very little awareness both among medical practitioners and eligible patients of MAID's availability. More than one witness told a story of asking a doctor about MAID and being told that it is not legal in Montana. Many cancer-stricken patients remain unaware of the option because of a total lack of publicity. Very few doctors openly admit to writing prescriptions. So the conclusions of the conference was that MAID remains relatively unknown and unused in Montana.

The question is what can be done to spread the word. There was discussion of forming a Non Profit to proselytize and educate medical practitioners and to approach hospice facilities with the needed information. But in the absence of a robust and expensive campaign, it seems more likely that MAID will remain a closet practice in Montana.

For those of us in NC, the option of seeking out a doctor willing to publicly write a prescription to a terminal, mentally competent adult under the Montana Standard of Care model has always been on the table. Perhaps the NC Supreme Court would eventually, after years of litigation, opine that there is a constitutional right to one's End of Life choice. Whether such an approach would make MAID widely accessible throughout NC is doubtful. The question, then, is whether the better way forward is through the time-honored route of legislation, which is the preferred course of action for Dying RIght NC.

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