In the first decision of its kind, a Montana judge has found that competent terminally ill people have rights of “individual privacy and human dignity” under the state constitution to commit suicide with the assistance of a physician.

The U.S. Supreme Court in 1997 rejected a challenge to Washington state's ban on assisted suicide under the Due Process and Equal Protection clauses of the U.S. Constitution. Courts in Florida, Alaska and California have also found in assisted suicide cases that state constitutional rights to privacy do not outweigh the state's interest in preserving life.

But Montana differs from those states and the U.S. Constitution in proclaiming that “The dignity of the human being is inviolable.” As interpreted by the Montana Supreme Court in an abortion-related case, that means

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. Armstrong v. State, 989 P.2d 364 (1999).

Last week, Lewis and Clark County District Court Judge Dorothy McCarter relied on the libertarian leanings of the Montana constitution in granting summary judgment to a retired Billings, Mont., trucker with terminal cancer who argued that the state's homicide laws do not apply to physician-assisted suicide.

“Taken together, this Court concludes that the right to 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,” she said in a Dec. 5 ruling.

Physicians are protected from liability under the homicide statute, McCarter continued, because “the method of effecting the patient's death with dignity would require the assistance of his medical professional.” She also said that

it is difficult to imagine a compelling [state] 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.

Plaintiff Robert Baxter, 75, sued the state of Montana for declaratory relief in October 2007. He is suffering from leukemia and, according to the complaint, has “no reasonable prospect of recovery.”

McCarter's decision, if upheld on appeal, would make Montana the third state in the nation to allow doctor-assisted suicide, joining Oregon and Washington state, which enacted right-to-die laws by statute.

Pro-life groups have reacted with predictable outrage, with one activist telling LifeNews.com that the case follows the example of Armstrong in misusing the right to privacy. But it is what McCarter called “th[e] addition of the personal integrity clause to the privacy clause” in the Montana constitution that paved the way for Baxter's victory –- and may ultimately limit its impact to Montana.

By Matthew Heller
12/8/08