Courtesy of judicial activism.
On December 5, Montana District judge Dorothy McCarter ruled in Baxter v. Montana that the state law banning assisted suicide violates not only the right to privacy guaranteed in the Montana constitution but also the constitutional clause that reads, "The dignity of the human being is inviolable." McCarter found here a "fundamental right" for the terminally ill to "die with dignity"—meaning in the case at hand, to commit suicide by drug overdose.
McCarter also ruled that doctors have a concomitant right to be free from "liability under the State's homicide statutes" if they help a patient commit death with dignity: "If the patient were to have no assistance from his doctor," she explained, "he may be forced to kill himself sooner...in a manner that violates his dignity and peace of mind, such as by gunshot or by otherwise unpleasant method, causing undue suffering to the patient and his family." That suicide is not a necessity apparently never entered the judge's mind.
Still, McCarter wasn't totally insensitive to the charge that she—like too many judges—would have courts settle all the controversial social questions rather than the people through the democratic process. She just saw no reason to wait for the political branches of government to recognize that the time had come to legalize assisted suicide. "Here, the Court is simply the first in line to deal with the issue," she wrote, "followed by the legislature to implement the right. Thus, both the courts and the legislature are involved."
Montana's attorney general has announced that the state will appeal Baxter, and McCarter's ruling may or may not be affirmed in the state supreme court. The courts of Florida, Alaska, and California have rejected a right to assisted suicide as part of their states' respective constitutional rights to privacy—decisions McCarter acknowledged but then ignored. Already, though, the implications of her decision bear exploring because they illustrate the radical scope of the putative "right to die" and illuminate the larger cultural transformations that are being furthered by radical judicial rulings.
The Montana case involves a terminally ill man (who died before the opinion was issued) seeking the right to assisted suicide. His position is supported by physicians who want to write lethal prescriptions for their dying patients. The broad wording of the Baxter opinion, however, including McCarter's elevation of assisted suicide to the level of a "fundamental right," would seem to preclude any meaningful limitations on who can receive death with dignity and who can help end the lives of the suicidal.
Wesley J. Smith is a senior fellow at the Discovery Institute, a lawyer for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture.
Read the entire article on the Weekly Standard website (new window will open).