Human Exceptionalism

Suing For the Right to Assisted Suicide in Montana

I’ve known this was coming for a long time–a lawsuit in Montana demanding a state constitutional right to assisted suicide. In fact, I predicted it back in 2000 when I wrote in the Weekly Standard:

James H. Armstrong, M.D. v. The State of Montana should have been merely a skirmish in the never-ending national struggle over abortion. Instead, relying on the reasoning of certain experts in the moral choices surrounding health care, the Montana Supreme Court issued in October 1999 a sweeping decision that could make huge changes in the way Montanans live and the way they die…

At issue in the Montana case was a state law requiring that doctors (as opposed to physician-assistants) perform all abortions. This the court unanimously overturned; but it didn’t stop there. Writing for a 6-2 majority, Justice James C. Nelson went on to impose a radical philosophical imperative on the people of Montana, unwarranted by the facts of the case and unnecessary to its prudent adjudication. Indeed, Nelson’s audacious opinion will be grist for litigation in Montana for many years to come. Its essential holding is this: The Montana Constitution broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from government interference.

As the two justices who objected to the scope of the ruling, Karla M. Gray and Chief Justice J.A. Turnage, warned, the Court’s opinion sweeps so broadly as to encompass and decide such issues as the right to physician-assisted suicide and other important health and medical-related issues which simply were not litigated in this case.Gray and Turnage’s trepidation is abundantly warranted. If the ruling means that virtually anything goes medically in Montana so long as a patient requests it and a health care professional is willing to provide it, then patients can ask doctors to kill them for organ-donation purposes, parents or guardians can secure the killing of disabled infants, and people can volunteer to be experimented on in dangerous ways that are currently illegal, all this as a result not of a considered decision by the people of Montana but of a little-noticed ruling by the state supreme court.

And now the long-awaited shoe has finally dropped.

According to the AP report, the plaintiffs are being assisted by a “patient advocacy group,” e.g., the assisted suicide promoting organization Compassion and Choices, formerly the Hemlock Society. These are the folk that yell loudly about leaving the “will of the people” alone in Oregon, but have never hesitated to subvert the will of the people against assisted suicide in the courts– first in the U.S. Supreme Court (failed 9-0), and in later state litigation lost in Florida and Alaska.

As I noted in my piece, the issue of assisted suicide was never argued in the Armstrong case and much of the ludicrously broad brush strokes in the majority opinion could be legitimately dismissed by the current courts as dicta, meaning the expression of judges’ opinions but not binding since the parameters of acceptable action by medical practitioners was never at issue in the Armstrong litigation.

It should be hard for a court to throw out a law passed by the legislature of the kind that has never been found in any court in any litigation to be unconstitutional. Still, the case is certainly no sure thing–either way. But I do know it is likely to be a legal fight to the finish that could eventually grab the attention of the entire world.

Yes, I will be involved, if asked.


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