Baxter, et al v. Montana

Robert Baxter, a marine veteran, outdoorsman and career long haul truck driver was suffering from lymphocytic leukemia when he, along with four Montana doctors and Compassion & Choices, filed a case seeking recognition  that  the right to choose aid in dying is protected by the Montana Constitution’s guarantees of privacy, dignity and equal protection.

On December 5 2008, Mr. Baxter died of his illness just hours after District Court Judge Dorothy McCarter ruled that “The Montana constitutional rights of individual privacy and human dignity, taken together, encompass the right of a competent terminally ill patient to die with dignity.” The Montana Attorney General appealed Judge McCarter’s ruling.

On December 31st, 2009 the Montana Supreme Court ruled that terminally ill Montanans have the right to choose aid in dying under state law. There is no further appeal from this decision, as the Montana Supreme Court is the highest court available to decide State issues.


A number of factors suggested that protecting Montanans' choice to receive aid in dying was likely to be recognized by the Montana Supreme Court under the Montana Constitution: the language of the state constitution, specifically the explicit guarantees of privacy and dignity; state constitutional precedent;  and  Montana's demonstrated commitment to ensuring that all terminally ill Montanans receive good end-of-life care, including excellent pain and symptom management.

The people of Montana ratified a new state constitution in 1972 that included an explicit right to privacy. The Montana Constitution states that the right to privacy is "essential to the wellbeing of a free society and shall not be infringed without the showing of a compelling state interest." Since its ratification, the Montana Supreme Court has consistently and unequivocally held that the Montana Constitution provides broader protection than the U.S . Constitution. Montana's dignity and equal protection clauses, like its privacy clause, are also broader than their federal counterparts and are treated as fundamental rights. A significant line of precedent interprets the privacy clause as broadly protecting individual autonomy over one's physical person. Finally, Montana has a demonstrated commitment to providing all terminally ill patients good end-of-life care , ensuring that no terminally ill Montanan need choose aid in dying due to inadequate pain and symptom management.

The Case

Robert Baxter was a 75-year-old retired truck driver and lymphocytic leukemia patient from Billings. On October 17th, 2007, Mr. Baxter asked the court to affirm his legal right to be able to hasten his inevitable death and die in a peaceful and dignified manner by taking medication prescribed by his doctor for that purpose. Mr. Baxter was joined in his suit by physician  plaintiffs who wanted to know that they can  assist a patient with aid in dying and not be subject to criminal prosecution.

District Court Judgment and Appeal

On December 5 2008, Montana State District Court Judge Dorothy McCarter issued summary judgment to plaintiffs, holding that the state constitution's individual dignity clause and the constitution's “stringent” right of privacy are “intertwined insofar as they apply to plaintiffs' assertion that competent terminal patients have the constitutional right to determine the timing of their death and to obtain physician assistance in doing so.”

The State filed a notice of appeal. It also sought a stay of the lower court ruling pending the appeal. Judge McCarter denied the request for a stay in January 2009, meaning her ruling was fully effective and remained so unless and until the Montana Supreme Court ruled differently.

Related legal documents

Read Kathryn Tucker's article in the Montana Law Review.

Read the Baxter v. Montana complaint.

Read the motion for summary judgement and briefing in support

Read Robert Baxter's affadavit

Physician's affadavits:

Dr. Loehnen

Dr. Speckart

Read Judge Dorothy McCarter's decision granting the plaintiff's motion for summary judgment


News and Press Resources

Read the letter to Montana physicians informing that willing doctors are safe to practice aid in dying.

View the Montana physicians response card indicating respect for terminal patients end-of-life choices.

Read the fact sheet sent to Montana physicians: Willing Providers in Montana Are Safe To Practice Aid In Dying.

Listen to the press conference about Missoula, Montana resident Janet Murdock,who is issuing a public plea for physicians to respect her decision to die with dignity.


Montana Supreme Court Decision

On December 31, 2009, in a 5 – 2 decision, the Montana Supreme Court ruled that terminally ill Montanans have the right to choose aid in dying under state law. The court ruled that public policy of Montana does not criminalize, and much in current public policy affirmatively supports, aid in dying.  The court did not reach the question of whether the Montana constitution specifically protects aid in dying.

In a detailed review of Montana law on the "Rights of the Terminally Ill," the Court concluded that the legislature specifically defers to a patient's own decisions  and affords patients the right to control their own bodies at the end of life. The decision to self-administer life-ending medication receives the same treatment as a decision to discontinue life sustaining therapies such as mechanical ventilation.

The opinion of the court reads, in part:

. . . we find no indication in Montana law that physician aid in dying provided to terminally ill, mentally competent adult patients 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.

The Rights of the Terminally Ill Act very clearly provides that terminally ill patients are entitled to autonomous, end-of-life decisions, even if enforcement of those decisions involves direct acts by a physician. Furthermore, there is no indication in the Rights of the Terminally Ill Act that an additional means of giving effect to a patient’s decision—in which the patient, without any direct assistance, chooses the time of his own death—is against public policy.

In conclusion, we find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy.

 View the entire oral argument for Baxter v. Montana here.

Related legal documents

Read the Montana Supreme Court opinion for Baxter v Montana

Brief of Appellees (PDF)

Friend of the Court Amicus Briefs

Human Rights Groups Amicus Brief (PDF)

Women's Rights Groups Amicus Brief (PDF)

AMSA/AMWA Amicus Brief (PDF)

Religious Amicus Brief (PDF)

Legal Scholars Amicus Brief (PDF)

Autonomy Amicus Brief (PDF)

Montana Legislators Amicus Brief (PDF)

Bioethicist Amicus Brief (PDF)

Survivors Amicus Brief (PDF)

ACLM Amicus Brief (PDF)

ACLU Amicus Brief (PDF)

Read a full summary of Baxter case and Amicus Briefs here (PDF)


News and Press Resources

Read full press release: Montana Supreme Court Uphold Right of Montanans to Aid In Dying

 Read Full Press Announcement:  Diverse group urges Montana Supreme Court to Uphold Right of Montanans to Aid in Dying (PDF)




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