On December 31, 2009, the Montana Supreme Court decided the case of Baxter v. State of Montana---one in which the College filed an amicus brief (found in this section on amicus briefs). The case involved whether or not terminally ill, though competent, Montanans have a state constitutional privacy and dignity right to be aided in dying by requesting life-ending medication from a state-licensed physician. The College advocated in favor of these individuals, so long as standards and protocols were in place, similar to the ones the states of Oregon and Washington have enacted into law. The thrust of the College's amicus filing was on the nomenclature to be used in this area of law and medicine - - - that what occurs is aid-in-dying and not "assisted suicide". The College similarly advocated years earlier in two cases before the United States Supreme Court, the Quill and Glucksburg cases. (It also participated in a third case reaching the U.S. Supreme Court involving end-of-life decisions, Gonzales v. State of Oregon.)
In its brief in Baxter, the College through Miles Zaremski (a past president and who has authored and led and authored all amicus filings since the first one in the famous US Supreme Court decision in Daubert v. Merrill Dow case over 15 years ago) penned original thoughts not one of the other 21 amici wrote about or considered: "In furtherance of having this Court consider eliminating what occurs from the facts here as a suicide (and therefore a physician who assists with a suicide) are thoughts of a soldier in a war zone who throws his body on an explosive...While this will cause death, we never view it as a suicide, though it is an intentional act surely to end life and fits the dictionary definition of 'suicide'. Instead we may view that individual as a hero...Cast in another light, would this court want the Montana Constitution to cast a blind eye by failing to say it is no less dignified to be aided in dying under the circumstances described here than for a soldier sacrificing his life for others,..? We surely think not." Amicus Br., at p. 11. Emphasis in original.
The Montana Supreme Court, by a vote of 5-2, found that it is not against the public policy of the state for a competent, terminally ill citizen to be aided in dying. It did not decide the case on constitutional grounds; rather, it used a statutory analysis. There was a special concurrence by noted Montana high court jurist, the Hon. James C. Nelson. Though joining the majority decision, he would have affirmed on constitutional grounds as well. Significant here is that he adopted what the College wrote regarding the fallen soldier. Justice Nelson wrote (p. 35 of the opinion): "Importantly, and as reflected in the briefing in this case, society judges and typically, but selectively, deprecates individuals who commit 'suicide'. On one hand, the individual who throws his body over a grenade to save his fellow soldiers is judged a hero, not a person who committed 'suicide' ".
Author Matt Gouras of the Associated Press has done a couple of stories on this case and its impact on the citizens of Montana. In a story posted January 11, 2011 (http://www.helenair.com/news/article_502c12b2-fe7b-11de-a998-001cc4c002e0.html), he wrote that it could be awhile before Montana doctors are willing to assist terminally ill patients end their lives, despite the Baxter case. As if he looked to what the College wrote in its brief, his main thesis was that there remains no specific law outlining guidelines for doctors to follow, as in Oregon and in Washington.
No doubt the Montana legislature will now have to become engaged in the debate, but with Baxter, discussions in this area of medical-legal jurisprudence have advanced. As the College wrote in its brief, "...as human thought advances over time, our views of issues once held sacrosanct change. This is part of the human condition and ingrained within the fabric of social transition." It is significant to see the American College of Legal Medicine leading the way in recognizing the rights of competent though terminally ill individuals so long as standards or protocols are set in place by which to guide physicians who wish to be so engaged.