Weekly Standard. December 29, 2008, Volume 014, Issue 15.
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.
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."
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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.
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