Montana recently joined Oregon and Washington as the only states in the nation to legalize the choice among terminally ill adults to hasten death by self-administering a lethal dose of drugs prescribed by a physician. Unlike Oregon and Washington, however, Montana's legalization of physician aid in dying (PAID) resulted not from public consideration of a statewide initiative, but from the judicial resolution of a lawsuit, Baxter v. Montana. As originally conceived, a trial judge reasoned that the unenumerated right to PAID is embraced by enumerated state constitutional rights to privacy and dignity. On appeal, Montana's supreme court jettisoned this construct, and, in its place, fashioned a legal home for PAID out of state homicide, consent defense, and end-of-life statutes. Central to this court's statutory rendering is the finding that state law, allowing terminally ill Montanans sustained by life support to withdraw such treatment and die, discriminates against terminally ill Montanans not sustained by life support who seek death; these classes are similar, the justices reckoned, entitling both to choose death. This analysis examines Montana's courting of PAID, offering textual examination of state trial and appellate court opinions, an accounting of legal strategies advanced in amici curiae briefs, and commentary about the problems and prospects with Baxter's holding. I argue, ultimately, that the equality principles statutorily conceived in Baxter (1) could be parroted in the vast majority of states that both criminalize assisted suicide and enumerate constitutional equal protection guarantees, and (2) could replace sub silentio the equal protection paradigm applied to “physician-assisted suicide” by the United States Supreme Court in its landmark Vacco v. Quill ruling.
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