Euthanasia Comes to Montana

Original Article

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.”

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

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.