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A Constitutional Right To Die

A Constitutional Right To Die

Today the Montana Supreme Court will be the first court in the nation to consider whether or not medical assistance in dying is a protected right under a state constitution.  The case centers around Robert Baxter who was, by all accounts, a stereotypical Montanan.  He was tough, independent, and determined to set his own course in life.  But as lymphocytic leukemia ravaged his body he pleaded with his doctors for help in ending his suffering. 

When his doctor refused Mr. Baxter’s pleas, he sued, arguing that such a refusal violated his rights under the Montana Constitution.  The Montana Constitution, ratified in 1972, reflects the deep libertarian roots of the state and echoes the privacy-rights movement that defined this part of the West following the 1960s.  The document is full of language concerning the limiting reach of government and keeps as its center the preference for individual autonomy and dignity. 

This case, and Montana, differ from places like Washington and Oregon where physician-assisted suicide came about through voter referendums, rather than an argument based on state constitutions themselves.  Neither the Washington State Supreme Court nor the Oregon Supreme Court have examined the right to die issue in a consitutional framework.

The debate also puts in focus the challenges states like Montana face in the current debate surrounding health care access and health care choice.  A significant part of the Montana population lives hours away from even minimal access to health care, and Montana has one of the highest suicide rates in the country.  Those who oppose a constitutionally protected right to die argue that before an issue like assisted suicide is tackled the state should focus on making sure everyone has equal access to quality care.  The concern, they say is not that residents should not have a right to choose, but that everyone has access to all the same choices.

Others, such as members of the disability-rights community, fear that a constitutionally protected right to die may lead to physicians or family members pushing those with disabilities towards life-ending decisions based out of misdirected compassion or worse, convenience.

A lower-court sided with Mr. Baxter last December, the very day Mr. Baxter died.  The State of Montana has since appealed the ruling, but both sides expect the state supreme court to side with Mr. Baxter.  That expectation stems from a tradition of interpreting the State Constitution with individual privacy rights in mind.  For example, the court struck Montana’s anti-sodomy laws as an unconstitutional invasion of privacy.  The court has issued similar rulings considering a woman’s right to chose abortion.  Because this case involves on the State Constitution, the Montana Supreme Court’s order will be final and binding.  There will be no appeal possible to the United States Supreme Court.

But, the United States Supreme Court has followed Montana’s lead in the past.  For example, in 2003 it reversed one of its decisions that had found no constitutionally protected right to privacy for same-sex couples under the United States Constitution, putting Montana once again in the legal frontier of privacy issues.  If past decisions and regional sentiments are any help in predicting judicial outcomes, Montana could very well become the first state in the country to recognize a constitutionally protected right to die.

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photo courtesy of Sebastian Bergmann via Flickr

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8:16AM PDT on Aug 29, 2012

This is a controversy that should be agreed when all odds fail.


8:29PM PDT on Sep 7, 2009

If a terminally ill patient is suffering from extreme pain and requests assisted suicide, s/he should be allowed to die in peace.
It is more humane to die with dignity than to live in agony.

6:38PM PDT on Sep 6, 2009

I work in the healthcare industry, and have witnessed many people lay for weeks not being able to talk, drink or eat. The right to die is a human right and assisted suicide should be legal.

11:04PM PDT on Sep 4, 2009

I agree with Barry - if we have the right to have a DNR order that will be honored, the same should hold true for assisted suicide. I find it interesting that we send off young women and men to war in other countries KNOWING they could be killed, but in the name of patriotism that's okay and honorable. However, an elderly person who is ready to leave a body that is not functioning for them anymore, or is in devastating pain and suffering is not allowed to leave on their own terms - in the name of WHAT?! Could we try "COMPASSION" on, for size???

11:03PM PDT on Sep 4, 2009

I am not at all optimistic at all about Montana making the headway for the right 2 die issue. The Midwest has always been the hardrock of conservatism. Few years back Florida should have granted a woman who was on life support system to die but it did not and therefore, I do not see this happening in Montana. If this is happening somewhere in the East or West Coast states, I will be more optimistic.
Having said all that I may be wrong, and I do hope I am wrong for that instance because this is PRO-CHOICE and its important that the individual seeking that choice is his or hers.

11:18AM PDT on Sep 4, 2009

I can't speak for the Montana state , but the decision of a terminally ill person to end his own suffering is a human right that should not be denied by politicians. If a Do-Not-Resuscitate order is legally acceptable, a Right-To-Die order should be as well. Although no one, not even next-of-kin, has the right to make that decision for anyone else.

9:10AM PDT on Sep 4, 2009

Suffering, for whatever reason, is torture. If a person suffers so badly that that person wants to end the suffering by terminating that life, it should be allowed.

7:00AM PDT on Sep 4, 2009

Tom and Denise you make great points. The only person who needs to make the decision is the dying individual. They are the ones living the unbearably cruel life. You're right, it always comes down to 'what will people say! who cares! They aren't the ones in so much pain, they want to die. When there is no longer any quality left why should someone continue to suffer? Wanting them to hang on is not love as I see it.

6:55AM PDT on Sep 4, 2009


I know what you mean because I watched my mother die this way. There is no peaceful death people, the overwhelming majority of people do not die in their sleep, it is a long agonizing process. It is difficult for the families to watch and it must be hell on the person dying. Most lose control of their bodily functions but still have enough mental faculty to be aware of this. It is demoralizing to them.

I also know this because my father had to watch my mother slowly die,bedridden with Parkinson's and Alzheimer's diseases. They were married for 63 years. Mom could do nothing for herself. He gradually lost control of his bladder and his bowels and was not allowed to walk because he was a risk for falling. He was so ashamed every time he had an "accident."

Thankfully he was still strong enough of mind that he willed himself to die 7 weeks to the day after my mother passed. But not everyone is this strong, my mother certainly was not and it was entirely unnecessary for her to have to have her entire body breakdown and go into organ failure before she was allowed to die. Death should be dignified.

4:19AM PDT on Sep 4, 2009

My mother is a geriatric nursing sister, and let me tell you something - the endless suffering of some of these bed ridden, chronically ill people is absolutely terrible to see. She tells me all the time about how a lot of them are riddled with pain, lose their dignity and lose their will to live.Even though my mom and the other nurses keep them as comfortable as possible, It puts tremendous strain on the family members to see them like this, so im sorry if this offends people but I definatley think if a person is suffering so severely - the right to go is the right thing!!

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