'Peaceful & Private'; Montana's Supreme Court Rules on Assisted Suicide

By Kaveny, Cathleen | Commonweal, March 12, 2010 | Go to article overview

'Peaceful & Private'; Montana's Supreme Court Rules on Assisted Suicide


Kaveny, Cathleen, Commonweal


Over the New Year holiday, the attention of prolife activists was focused on beginning-of-life questions, as abortion and health-care reform took center stage in Washington, D.C. On New Year's Eve, however, a troublesome development occurred with respect to end-of-life questions--the other prolife issue. The Montana Supreme Court issued its decision in Baxter v. Montana, holding that physician-assisted suicide (PAS) did not violate state law, making Montana the third state (after Oregon and Washington) to legalize PAS.

The Baxter decision did not garner much attention. It did not even rate a mention on the U.S. Conference of Catholic Bishops Web site. Doubtless, that neglect was due in part to the decision's holiday release and the urgency of the health-care reform debate. But I fear that it was also due in part to a perception that the decision was "not as bad as it could have been"--as one Montana prolife leader told the press.

It's understandable why some people might think that. I did myself until I actually read the opinion. After all, the court did not declare PAS to be a right under the state constitution but merely held that it did not violate current Montana law. No constitution-bending judicial activism of the Roe v. Wade sort was involved. And if outside observers haven't gotten around to reading the opinion yet, they might assume that Montana law is idiosyncratic. We all know that cowboys and other fiercely independent types live in Montana.

But prejudices are just that--prejudices. Judicial activism also includes twisting statutes beyond recognition to achieve political ends. Far from being idiosyncratic, the relevant Montana law is very similar to the law in most states. Montana criminalizes homicide but not suicide. It does criminalize assisting in the suicide of another and, if the attempt is successful, elevates the charge to homicide. But like most states, Montana treats the consent of the victim as a defense to some crimes--unless doing so violates public policy as reflected in state law. Thus the question the Montana Supreme Court set itself in Baxter was whether the physician's assistance in a patient's suicide violated the state's public policy. It answered no, for two reasons, both of which are highly flawed.

First, the majority recognized that in Montana (as elsewhere) public policy does not allow the victim to give legally valid consent to crimes destructive of the person, such as assault. The majority attempted to distinguish this situation from PAS by saying that the public-policy exception applied centrally to "violent, public altercations [that] breach public peace and endanger others in the vicinity. …

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