First, the Supreme Court Opinion in its entirety can be found at this site in PDF format.
As to a “constitutional right” and assisted suicide – the court avoided giving a ruling on that at all (but in doing so voided the lower court finding in that regard). Instead, through some strange permutations in finding that there is nothing currently barring doctors from giving lethal prescriptions to “terminal” patients.
For a full understanding, you’ll have to read the opinion – opinions, actually. There are two concurring opinions and one dissent. Even then, if you’re not a lawyer, it will be a struggle.
Nevertheless, there are a few things that I can say about the court’s reasoning. According to the court, Montana has a fairly broad application of the “consent” defense in questions of criminal activity. Additionally, they totally dismantle any distinction between withholding/withdrawal of treatment and the giving of lethal medication. (the dissent points out that the Supreme Court cases on assisted suicide in 1997 reaffirmed a significant distinction between omission and comission).
In doing these things, the court was able to ignore the existing statutes against assisting suicides, at least as it pertains to prescriptions of lethal medications given to patients by their doctors. (For other reasons, I think they’ve also left the door open to a “consent” defense for elderly men who kill ailing wives – a growing phenomenon.)
The most disturbing part of the opinion is the “specially concurring” opinion by Justice James C. Nelson. Nelson declares openly that he sees a constitutional right for assisted suicide, so that we all know at least one vote in any future challenges. But he doesn’t stop there. Nelson writes more like an unusually eloquent member of the Final Exit Network than a Supreme Court Justice:
Thus noted, the Patients and the class of individuals they represent are persons who suffer from an illness or disease, who cannot be cured of their illness or disease by and reasonably available medical treatment, who therefore expect death within a relatively short period of time, and who demand the right to preserve their personal autonomy and their individual dignity in facing this destiny.
In choosing this language, I purposely eschew bright-line tests or rigid timeframes.
What Nelson is signaling here, I believe, is that any challenge to a law that limits the practice of physician assisted suicide will find a friend in this Justice.
Justice Jim Rice wrote the dissent, which refutes most of the arguments in the Opinion itself – including the negation of long-standing statutory prohibitions on aiding suicides. Perhaps most importantly, though, Rice thoroughly discusses the intent of elements of the Montana Constitution. Among other things, he points out the significance of a “right to die” proposal being discussed and rejected for inclusion in the Montana constitution. He argues it is hard to read an intent for the practice to be legalized when one knows the subject was discussed and rejected.
I’ll be writing more later. There’s a lot of material in this decision and I still haven’t wrapped my head around it all. For the most part, lawyers and judges are really really painful to read.
Needless to say, when once in awhile, someone says I “think like a lawyer” I guess that’s OK. Just never accuse me of writing like one. –Stephen Drake
I have tried to get through the Baxter decision and it is indeed hard to read as a non lawyer. I noted throughout the decision the phrase “physician assisted suicide” is not used while “physician aide in dying” was used consistently. Is this in your estimation tied to the the fact the court ruled “physician aide in dying” was not against public policy and tied to the use of the “Rights of the Terminally Ill Act”?
Bill,
First, sorry I haven’t answered your email. Life is a little out of control again.
Second, I think the use of the phrase “aid in dying” was mostly a victory for Compassion & Choices. It’s the term they’ve been pushing for a few years now.
They have a rationale for the use of the term, but the rationale was formed *after* adoption of the term itself. The term was adopted for a simpler reason – it received the most favorable response among euphemistic phrases tested with focus groups. So they adopted the term and evolved a rationale for its use. –Stephen