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MT. Constitution Protects Doctor Assisted Suicide

By Greg Piche'

The United States Supreme Court has thus far declined to find a constitutional right to doctor assisted suicide under either the Due Process Clause (Washington v. Glucksberg, 521 U.S. 702 (1997)) or under the Equal Protection Clause (Vacco v. Quill, 521 U.S. 793 (1997)). There are a very few number of states that have incuded the Right to privacy in their State Constitutions. Montana is one of them. In Robert Baxter et alv. State of Montana, Cause No. ADV-2007-787, an action brought by Mr. Baxter who has a terminal condition, several physicians and Compassion & Choices, an advocacy group, against the State to declare the application of state homicide statutes to physician assited suicide to be unconstitutional. District Court Judge, Dorothy McCarter from Lewis & Clark County issued an opinion and order earlier this month finding that the Montana Constituion protected doctor assisted suicide, wherein a doctor provides drugs for a terminal patient, who administers the lethal drug and the homicide statutes could not punish the doctor for his or her assistance. If the case is upheld by the Montana Supreme Court, it would be the first case upholding a state constitutional right to doctor assisted suicide. The judge essentially followed the decisions of the United State Supreme Court in denying protection under the state Due Process and Equal Protection Clauses of the Montana Constitution. Then the court addressed Article II, section 4 which states, "The dignity of the human being is inviolable" and Article II, section 10, which provides "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." Noting that the specifiic application of the state "dignity" clause without the includsion of other fundamental rights has yet to be addressed by the Montana Supreme Court, Judge McCarter turned to the privacy clause. The Court rejected the State's argument that it had a compelling state interest in preserving the life of a citizen.

[I]t is difficult to imagine a compelling interest in preserving the life of an individual who is suffering pain and the indignity of his disease, whose life is going to end within a relatively short period of time, and for whom palliative care is inadequate to satisfy his personal desire to die with dignity. The judge noted that Montana adheres to "one of the most stringent protections of its citizen's right to privacy in the United States, exceeding even that provided by the Unites States Constitution.(Citing Armstrong v. State, 989 P. 2d 364 (1999)). The court went on to assert,

In the instant case, the constitutional rights to privacy and dignity are intertwined insofar as they apply to Plaintiffs' assertion that competent terminal patients have the constitutional right to determine the timing of their death and to obtain physician assistance in doing so. The decision as to whether to continue life for a few additional months when death is imminent certainly is one of personal autonomy and privacy. The Court noted that it had to consider the constitutional issue under the strict construction standard because Montana law requires a compelling state interest in such a prohibition, with limitations narrowly tailored to effectuate the State's interest without unduly interfering with the individual's constitutional rights, while the U.S. Supreme Court was controlled by lesser, "legitimate basis" standard. The Court felt that the State could provide adequate statutory protectins to guard against abuse of patients in the application of doctor assisted suicide.

Full post as published by Healthcare Law Blog on December 24, 2008 (boomark / email).