| Mr. Baxter argued that the criminal prohibition on physician-assisted suicide violated his constitutional rights under Montana's equal protection clause, the individual dignity clause, and the right of privacy.
The Equal Protection Argument:
The Court started with Baxter's argument that he was denied equal protection under the law when compared with a terminally ill person who can choose to have life-sustaining procedures withheld or removed by medical care providers pursuant to the Montana Rights of the Terminally Ill Act. Baxter argued that in both cases, the person is seeking physician assistance in ending their life, one by physician action, the other by inaction.
As stated by Judge McCarter, the Montana Constitution applies "broader equal protection rights to its citizens than that provided by the United States Constitution" and Montana law requires "strict scrutiny analysis to state infringement of an individual's fundamental rights," one of which is equal protection. Judge McCarter held that Baxter's equal protection argument failed because his situation is not similar enough to those terminal patients who choose to end life-sustaining treatment. The Judge stated: "the difference between the two classes lies in the difference in the character of the act sought" rather than a difference in the person. Baxter seeks an affirmative act intended to hasten death, rather than a negative act intended to cease treatment (and thus hasten death).
Equal protection analysis looks at the person first, and whether a law unfairly excludes a person based on their "differences" from persons given the benefit of a law or government act. Mr. Baxter is seeking physician-assisted suicide, an act that is presently not legal under Montana law for any person, regardless of individual differences. The criminality of the act is not based on Baxter belonging to a specific "class" (race, religion, sex, etc.). So the Judge concluded that he was not denied equal protection of the law and turned to the other constitutional arguments that this law unfairly denied him his fundamental human rights. And here's where the case gets most interesting relative to the Montana Constitution.
The Individual Dignity Argument:
The Montana Constitution provides that "[t]he dignity of the human being is inviolable" at Article II, Section 4. The Montana Supreme Court stated that this means:
Respect for the dignity of each individual - a fundamental right, protected by Article II, Section 4 of 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.
Unlike Montana, the US Constitution does not have an express dignity provision, but the US Supreme Court has addressed human dignity in the context of other fundamental individual rights such as freedom of speech, right to refuse medical treatment, right to determine whether to bear a child, right to protection of reputation, and right of welfare recipients to be free from arbitrary government intrusion.
The Montana Supreme Court has not addressed the reach of the dignity provision without reference to other fundamental rights, such as the right to privacy and the prohibition against cruel and unusual punishment. While emphasizing the respect owed to and inviolability of Montana's constitutional dignity provision, following past precedent Judge McCarter also refrained from finding in Baxter's favor solely on the basis of the dignity provision and proceeded to Baxter's final argument, the Right of Privacy.
The Right of Privacy argument:
As stated by Judge McCarter:
Montana adheres to one of the most stringent protections of its citizens' right to privacy in the United States, exceeding even that provided by the United States Constitution.
The Montana Supreme court described this right as:
one of the most important rights guaranteed to the citizens of this State, and its separate textual protection in our Constitution reflects Montanans' historical abhorrence and distrust of excessive governmental interference in their personal lives.
Montana Supreme Court cases have supported the right of the personal autonomy of Montana citizens, through the right of privacy, as including: the right of consenting adults to engage in homosexual activity in private; the right of each person to make medical judgments, with their health care provider, affecting their bodily integrity and health; the right to seek and obtain pre-viability abortion services; and the prevention of compulsory independent medical evaluations in personal injury cases.
So, by explicit constitutional language, the citizens of Montana hold this right more dearly than even the long-established law of the highest court of the land, stated many times throughout US Supreme Court history, and in the 1891 Union Pac. Ry. Co. v. Botsford case as:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear unquestionable authority of law.
Following Montana precedent, Judge McCarter based her findings on the intertwining of the rights to individual dignity and privacy in this case.
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 -- and is -- perhaps the most intimate and personal choice of all - the choice of when and how to end one's life.
Taken together, this Court concludes that the right of personal autonomy included in the state constitutional right to privacy, and the right to determine "the most fundamental questions of life" inherent in the state constitutional right to dignity, mandate that a competent terminally ill person has the right to choose to end his or her life.
This is an important conclusion. Using the explicit dignity and privacy provisions of the Montana Constitution, Judge McCarter went where the US Supreme Court declined to go under the due process and equal protections clauses in its 1997 plurality opinion in Washington v. Glucksberg, a case upholding a similar Washington-state statute criminalizing physician-assisted suicide.
But whether a terminally ill person's right to choose when and how to end their life includes the right to obtain assistance from a medical care provider without interference by the State is a separate inquiry. Judge McCarter found that it does:
With regard to whether this includes the right to obtain assistance from a medical care provider in the form of obtaining a prescription for lethal drugs to be taken at a time of the patient's choosing, the Court concludes that it does.
This also is a significant ruling, and will likely draw the most attention from socially conservative groups across the US who will be vying to join in the appeal of this ruling. Because this part of the ruling invokes, in a limited way, the question of woman's right to choose to terminate a pregnancy, and the physician's role in that choice. In particular, the case of Armstrong v. State, a 1999 Montana Supreme Court case in which the Court upheld a woman's right to obtain medical health care professional assistance in obtaining an abortion.
Quoting Armstrong, itself quoting the US Supreme Court, Judge McCarter stated:
A woman cannot safely secure an abortion without the aid of a physician, and an impecunious woman cannot easily secure an abortion without the physician's being paid by the State. The woman's exercise of her right to an abortion, whatever its dimension, is therefore necessarily at stake here. Moreover, the constitutionally protected abortion decision is one in which the physician is intimately involved.
Applying the rationale of Armstrong, Judge McCarter stated:
Given a competent terminal patient's right to determine the time to end his life, in consultation with his physician, the method of effecting the patient's death with dignity would require the assistance of his medical professional. The physician-patient relationship would enable the terminal patient to consult with the doctor as to the progress of the disease and the expected suffering and discomfort, and would enable the doctor to prescribe the most appropriate drug for life termination, leaving the ultimate decision and timing up to the patient.
Clearly, a terminally ill person would be hard-pressed to find a medical care provider willing to prescribe lethal drugs with the specter of criminal prosecution for homicide waiting in the wings. This would leave the person:
increasingly . . . physically unable to terminate his life, thus defeating his constitutional right to die with dignity. If the patient were to have no assistance from his doctor, he may be forced to kill himself sooner rather than later because of the anticipated increased disability with the progress of the disease, and the manner of the patient's death would likely occur in a manner that violates his dignity and peace of mind, such as by gunshot or by an otherwise unpleasant method, causing undue suffering to the patient and his family.
The Court concludes that a competent terminally ill patient has the constitutional right to die with dignity. That right is protected by Article II, sections 4 and 10, of the Montana Constitution and necessarily incorporates the assistance of his doctor, as part of a doctor-patient relationship, so that the patient can obtain a prescription for drugs that he can take to end his own life, if and when he so determines.
Because of this finding, Judge McCarter proceeded to an examination of whether section 45-5-105 MCA was sufficiently "narrowly tailored to effectuate" a compelling interest of the State. The State asserted a number of compelling interests.
Preserving human life, a clear compelling interest of the State, holds less water in the context of "preserving the life of an individual who is suffering pain and the indignity of 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."
Protecting vulnerable groups from potential abuse is a compelling state interest that can be addressed through thoughtful legislation such as Oregon's Death with Dignity Act and can be effectuated "without denying the individual's constitutional right to die with dignity.
Protecting the integrity and ethics of the medical profession, again a compelling interest of the State, can be addressed through thoughtful legislation and oversight and "can provide an express provision that excludes physicians who do not wish to participate and can further protect participating physicians with appropriate legislation and guidelines."
Finally, the State argued that the issues of the case should properly be determined by the legislature. Judge McCarter responded that:
The question of whether Plaintiffs have a fundamental right to die with dignity, with assistance, is a constitutional question to be decided by the courts. The question of whether the homicide statute is unconstitutional as applied to these Plaintiffs is also a legal one to be decided by the courts. . . . The implementation of that right to effect the compelling state interests as discussed herein is properly left to the legislature.
This holding will likely be vigorously opposed through the appeals process. Personal integrity, dignity and privacy are concepts that strike fear in many people. But these very concepts are guaranteed to all in Montana by the 1972 Montana Constitution, and assumed tangible and compassionate validation through this opinion. Reversal on appeal would beg the question: What, they didn't really mean it? |
