The Magazine

Euthanasia Comes to Montana

Courtesy of judicial activism.

Dec 29, 2008, Vol. 14, No. 15 • By WESLEY J. SMITH
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

In essence, Judge McCarter ruled that the individual's right to act upon such metaphysical beliefs trumps all but the most compelling state interests. But if that is so, how can assisted suicide possibly be limited to the terminally ill? Many people suffer more profoundly--and for longer--than people who are dying. Thus, once the right to end suffering through "death with dignity" is deemed "fundamental," how can people with debilitating chronic illnesses, the elderly who are profoundly tired of living, those in despair after becoming paralyzed, or indeed anyone in other than transitory existential agony be denied the same constitutional right as the terminally ill to end it all? Already in the Netherlands, people in these circumstances receive euthanasia and assisted suicide. "Suicide tourism" is a growth industry in Switzerland, with distressed people flying in from around the world to die at the hands of lay assisted-suicide groups. Indeed, the Swiss supreme court recently ruled that people with mental illnesses have a constitutional right to assisted suicide--an opinion cheered last year in an article published in the prestigious American bioethics journal Hastings Center Report.

And why should the participation of doctors be limited to writing lethal prescriptions? Once they are relieved of liability under Montana's homicide statutes, shouldn't doctors be permitted to provide lethal injections--particularly since studies from the Netherlands demonstrate that active euthanasia is less likely than assisted suicide to cause disturbing side effects, such as nausea and extended coma? Moreover, why require doctors at all? It's my life, so why shouldn't I choose to be killed by whomever I want?

Kathryn Tucker, legal director for the assisted-suicide advocacy organization Compassion & Choices and the lawyer who filed all the assisted suicide cases mentioned here, has already opined that some of the protective guidelines found in Oregon may be too strict for Montana's constitutional right to assisted suicide. She told Oregon Public Broadcasting: "Let's take the example of the waiting period. In Oregon there's a minimum 15-day waiting period. That provision very possibly would not survive constitutional scrutiny [in Montana] because it would be unduly burdensome."

It is possible that the Baxter decision is just the latest sign that we are heading toward a society ruled by radical libertarianism, with our only uniting value being "choice." But I think not. Judicial activism is really about imposing upon the rest of us the mores and social values favored by liberal intellectual elites--whose interests the courts tend to serve and whose views they reflect. And while personal autonomy and an end to moralizing are certainly a large part of this agenda, they aren't the crux of it.

Just as the personal behaviors favored by the liberal intelligentsia are being transformed by courts into constitutionally protected activities, the personal behaviors disfavored by these same powerful forces are likely to be held controllable by the state. Thus, courts probably won't protect the conscience rights of medical professionals who do not wish to be complicit in abortion or assisted suicide--even though to be consistent, these choices should be entitled to the same constitutional protection under the "mystery of life" analysis as any other.

The same paradigm is likely to prevail in fields beyond bioethics. Courts will probably bless the imposition of norms favored by liberal elites in total disregard of "choice" by dissenters. For example, the time is probably coming when we will not be allowed to drive a car that gets eight miles per gallon, or burn a fire in the fireplace, or develop natural resources on our land if doing so is deemed to harm the "rights" of nature (already protected by the constitution of Ecuador).

Cases such as Baxter, Armstrong, and Casey--among many others--are really part of a slow motion coup de culture, a steady drive to topple the social order rooted in Judeo-Christian/humanistic moral philosophy and replace it with a dramatically different value system founded in utilitarianism, hedonism, and radical environmentalism. Once that process is complete, the courts will quickly make it clear that "choice" has limits.

Wesley J. Smith is a senior fellow at the Discovery Institute, a lawyer for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture.