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Montana High Court Approves “Death With Dignity” Request

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Retired truck driver Robert Baxter, a Billings, Montana, resident, was dying of leukemia. He wanted to be able to choose the time and manner of his own death, and he turned to his physicians. He asked for a lethal dose of medication; his doctors sympathized, but declined to give him the prescription he wanted. They were concerned, they said, that doing so might expose them to criminal charges for assisting Mr. Baxter to commit suicide.

While suicide itself is usually not illegal, assisting another person to commit suicide is a crime in most American states. With the exception of Oregon and Washington (where state voter initiative actions have expressly legalized physician-assisted suicide in narrow circumstances), the notion of what is often called “physician aid-in-dying” has run up against the assisted-suicide prohibition.

Mr. Baxter and his physicians, with the assistance of a group called Compassion & Choices, decided to do something about Montana’s law. They asked the courts for an order recognizing Mr. Baxter’s rights under the Montana Constitution to seek his physicians’ assistance in ending his life, and those physicians’ authority to respond to his request.

In December, 2008, a state trial judge agreed, ruling that Montana’s Constitution promised its citizens both dignity and privacy. Those guarantees, said the judge, extended to the right of a physician to prescribe a lethal dose of medications. The Montana Attorney General appealed the ruling to the state’s Supreme Court.

On December 31, 2009, the state high court affirmed the trial judge’s ruling — though it used different logic to do so. Noting that it is always preferable to resolve issues without relying on Constitutional analysis if possible, the court ruled that Montana law would prevent the prosecution of a physician authorizing a lethal dose of medication for a competent, terminally ill patient requesting that prescription.

The court’s statutory analysis focused on the doctrine of “consent.” A patient who requested the lethal prescription has consented to the doctor’s actions. That would prevent a criminal prosecution, so long as the consent did not violate public policy — and the high court determined that no public policy considerations would be affected.

This circumstance can be distinguished, said the court, from the case of a noisy, dangerous fight between bar patrons who might “consent” to one another’s assault. No other individuals, and therefore no legitimate public policy, would be endangered by allowing physicians to respond to a patient’s request. Baxter v. State, December 31, 2009.

The Montana Supreme Court decision was not unanimous. Four of the seven Justices agreed with the majority opinion authored by Justice W. William Leapheart (one of those four, Justice John Warner, wrote separately to urge the Montana Legislature to take up the issue and resolve any uncertainties). One, Justice James C. Nelson, would have gone further — he argued for upholding the trial court’s Constitutional analysis. Two (Justice James A. Rice and District Judge Joe L. Hegel, sitting as a special Justice) would have reversed the trial court and found that “physicians who assist in a suicide are subject to criminal prosecution.”

Ironically, Mr. Baxter did not benefit directly from the court’s ruling. He died in 2008, the same day the trial judge ruled in his favor, and without ever having learned of his victory in either the trial court or the state Supreme Court.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

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Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.