The Magazine

Euthanasia Comes to Montana

Courtesy of judicial activism.

Dec 29, 2008, Vol. 14, No. 15 • By WESLEY J. SMITH
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On December 5, Montana District judge Dorothy McCarter ruled in Baxter v. Montana that the state law banning assisted suicide violates not only the right to privacy guaranteed in the Montana constitution but also the constitutional clause that reads, "The dignity of the human being is inviolable." McCarter found here a "fundamental right" for the terminally ill to "die with dignity"--meaning in the case at hand, to commit suicide by drug overdose.

McCarter also ruled that doctors have a concomitant right to be free from "liability under the State's homicide statutes" if they help a patient commit death with dignity: "If the patient were to have no assistance from his doctor," she explained, "he may be forced to kill himself sooner .  .  . in a manner that violates his dignity and peace of mind, such as by gunshot or by otherwise unpleasant method, causing undue suffering to the patient and his family." That suicide is not a necessity apparently never entered the judge's mind.

Still, McCarter wasn't totally insensitive to the charge that she--like too many judges--would have courts settle all the controversial social questions rather than the people through the democratic process. She just saw no reason to wait for the political branches of government to recognize that the time had come to legalize assisted suicide. "Here, the Court is simply the first in line to deal with the issue," she wrote, "followed by the legislature to implement the right. Thus, both the courts and the legislature are involved."

Montana's attorney general has announced that the state will appeal Baxter, and McCarter's ruling may or may not be affirmed in the state supreme court. The courts of Florida, Alaska, and California have rejected a right to assisted suicide as part of their states' respective constitutional rights to privacy--decisions McCarter acknowledged but then ignored. Already, though, the implications of her decision bear exploring because they illustrate the radical scope of the putative "right to die" and illuminate the larger cultural transformations that are being furthered by radical judicial rulings.

The Montana case involves a terminally ill man (who died before the opinion was issued) seeking the right to assisted suicide. His position is supported by physicians who want to write lethal prescriptions for their dying patients. The broad wording of the Baxter opinion, however, including McCarter's elevation of assisted suicide to the level of a "fundamental right," would seem to preclude any meaningful limitations on who can receive death with dignity and who can help end the lives of the suicidal.

A premise of McCarter's ruling is that people have the right to decide for themselves what constitutes "dignity" according to their personal beliefs. To reach this conclusion, the judge cited an overbroad Montana Supreme Court abortion ruling, Armstrong v. Montana, from 1999. She also quoted a law review article and made reference to a controversial section of a major abortion decision of the United States Supreme Court.

Here is the passage of Armstrong that McCarter quoted:

Respect for the dignity of each individual--a fundamental right protected by .  .  . the Montana Constitution--demands that people have for themselves the moral right and moral responsibility to confront the most fundamental questions .  .  . of life in general, answering to their own consciences and convictions.

And here is the quotation from a Montana Law Review article published in 2000:

The meaning of the concept of individual dignity .  .  . may be directly assailed by treatment which degrades, demeans, debases, disgraces, or dishonors persons, or it may be more indirectly undermined by treatment which either interferes with self-directed and responsible lives or which trivializes the choices persons make for their own lives.

Finally and not surprisingly, she cited U.S. Supreme Court justice Anthony Kennedy's infamous "mystery of life" passage from the 1992 abortion case Planned Parenthood v. Casey (even though the Supreme Court unanimously refused in 1997 to apply the statement to assisted suicide--or create a federal right to assisted suicide):

The most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy are central to liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.