Baxter v. Montana: the Slippery Slope

In December 2008, Montana Judge Dorothy McCarter handed down Baxter v. Montana, a decision that gives state constitutional protection to mentally competent, terminally ill adult patients seeking prescriptions to hasten death – i.e., to commit suicide – and to the doctors who administer the drugs.

Declaring that the duly elected state legislature was not moving fast enough to recognize assisted-suicide rights, the judge simply decided that she was obligated to decide for them: “Here the court is simply the first in line to deal with the issue followed by the legislature to implement the right. Thus both the courts and the legislature are involved.”

Judge McCarter appears to relish her role as a judicial activist. She not only ordered the most liberal assisted suicide ruling in our nation’s history to take effect immediately, but also denied the state attorney general’s motion for a stay during the appeal process.

Baxter v. Montana ruled that Montana’s criminal homicide statutes, which define deliberate homicides, mitigated deliberate homicide, and negligent homicide, no longer apply to physicians who provide aid in dying to their terminally ill patients.

Invoking U.S. Supreme Court Justice Anthony Kennedy’s Planned Parenthood v. Casey “Liberty Clause” (the right to define one’s own concept of existence), Judge McCarter concluded the homicide statutes violate the fundamental rights of terminally ill patients guaranteed by these provisions found in the Montana constitution: the right of privacy; the right of individual dignity; the right to due process of law; the right to equal protection of the laws; and the right to seek safety health and happiness in all lawful ways.

McCarter’s decision is contrary to the U.S. Supreme Court’s unanimous 1997 decision that rejected the argument that terminally ill people have a constitutional right to doctor-assisted suicide. The Supreme Court rejected the expansive view of due process and equal protection and concluded that statues prohibiting assisted suicide do not infringe on any fundamental rights. Then Chief Justice Rehnquist, writing for the court, pointed out that the states’ assisted suicide bans are not recent innovations. “Opposition to suicide,” he argued, is an enduring theme of our “philosophical, legal, and cultural heritages.” The Court was, therefore, “reluctant” to expand the concept of due process in “this uncharted area.” In the Court’s judgment, due process protects those right and liberties that are “deeply rooted in the nation’s history and tradition.” Based on this reasoning the court concluded: “The history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause.”

Despite Baxter v. Montana’s flawed reasoning, if upheld it will take this nation one step closer to permitting assisted suicide for almost any reason. If one has “the right to define one’s own concept of existence” it can be deemed discriminatory to permit assisted suicide only in cases of people who suffer physically. Psychological pain or even unhappiness could be valid reasons for suicide.

This is precisely what has happened in the Netherlands: In the 1970s, Dutch courts permitted physician-assisted suicide for terminally ill competent patients. In 1984, the Netherlands Supreme Court sanctioned physician-assisted suicide for chronically-ill and elderly patients who were not in danger of imminent death. In 1989, the Dutch Supreme Court chose not to prosecute a doctor who gave a lethal injection to a newborn with Down Syndrome. The court reasoned that “since the child would have experienced very serious suffering after surgery, it was not likely that the physician would be convicted if his case went to court, and therefore, his objection to prosecution was justified.”

By the early 1990s, the Dutch judiciary was permitting assisted suicide for psychiatric patients who were physically fit. In one case a psychiatrist was judged not guilty of assisting in a suicide of a physically healthy individual because the court concluded that the patient, although suffering from a mental illness, was competent and completely free to make the choice to die.

Dr. Herbert Hendin, executive director of the American Suicide Foundation, conducted an extensive analysis of the Dutch euthanasia experience and confirmed that the practice of medicine has changed dramatically: “Acceptance of euthanasia in the Netherlands has reduced interest in alleviating pain and suffering; euthanasia becomes an easier alternative—even when a person is not terminally ill.”

If Judge McCarter prevails and assisted suicide becomes a legal medical treatment in this country, it can be expected to destroy the trust patients have in their doctors; to undermine the expectation that the physician’s commitment is always to life. It would almost surely introduce a utilitarian approach to medicine that violates fundamental ethical norms and the state’s interest in preserving the common good.

George J. Marlin, Chairman of the Board of Aid to the Church in Need USA, is the author of The American Catholic Voter and Sons of St. Patrick, written with Brad Miner. His most recent book is Mario Cuomo: The Myth and the Man.