‘Peaceful & Private’
Cathleen Kaveny March 8, 2010 - 1:22pm
Over the New Year holiday, the attention of prolife activists was focused on beginning-of-life questions, as abortion and health-care reform took center stage in Washington, D.C. On New Year’s Eve, however, a troublesome development occurred with respect to end-of-life questions—the other prolife issue. The Montana Supreme Court issued its decision in Baxter v. Montana, holding that physician-assisted suicide (PAS) did not violate state law, making Montana the third state (after Oregon and Washington) to legalize PAS.
The Baxter decision did not garner much attention. It did not even rate a mention on the U.S. Conference of Catholic Bishops Web site. Doubtless, that neglect was due in part to the decision’s holiday release and the urgency of the health-care reform debate. But I fear that it was also due in part to a perception that the decision was “not as bad as it could have been”—as one Montana prolife leader told the press.
It’s understandable why some people might think that. I did myself until I actually read the opinion. After all, the court did not declare PAS to be a right under the state constitution but merely held that it did not violate current Montana law. No constitution-bending judicial activism of the Roe v. Wade sort was involved. And if outside observers haven’t gotten around to reading the opinion yet, they might assume that Montana law is idiosyncratic. We all know that cowboys and other fiercely independent types live in Montana.
But prejudices are just that—prejudices. Judicial activism also includes twisting statutes beyond recognition to achieve political ends. Far from being idiosyncratic, the relevant Montana law is very similar to the law in most states. Montana criminalizes homicide but not suicide. It does criminalize assisting in the suicide of another and, if the attempt is successful, elevates the charge to homicide. But like most states, Montana treats the consent of the victim as a defense to some crimes—unless doing so violates public policy as reflected in state law. Thus the question the Montana Supreme Court set itself in Baxter was whether the physician’s assistance in a patient’s suicide violated the state’s public policy. It answered no, for two reasons, both of which are highly flawed.
First, the majority recognized that in Montana (as elsewhere) public policy does not allow the victim to give legally valid consent to crimes destructive of the person, such as assault. The majority attempted to distinguish this situation from PAS by saying that the public-policy exception applied centrally to “violent, public altercations [that] breach public peace and endanger others in the vicinity.” In contrast, it argued, death by PAS is “peaceful and private.”
This line of reasoning fundamentally misconstrues what counts as “private.” Our legal tradition has always recognized that when one member of the community seriously injures or takes the life of another, it is always an issue of public concern—no matter where it might take place or how serene the action itself might appear. The opinion’s requirement that the consensual attack be “private” and “peaceful” doesn’t hold up under examination. An assault consisting of a consensual strangling in a hotel room won’t spark a riot, nor will the consensual smothering of one sleeping spouse by the other. But these are still matters of public concern.
Second, the majority opinion points to Montana law as requiring doctors to withdraw life-sustaining treatment at the request of the patient or surrogate decision-maker. It asks how PAS can be against public policy when withdrawal of treatment isn’t.
There is a significant distinction between a doctor’s respecting the wishes of a patient or surrogate to withhold or withdraw treatment, on the one hand, and assisted suicide and euthanasia on the other, as the U.S. Supreme Court has recognized. Doctors cannot force competent patients to receive treatment they don’t want, no matter what the reason. But that is a far cry from saying they can help patients kill themselves with legal impunity.
Should prolifers worry? Can’t the Montana legislature undo the decision by passing a new law? Yes, but that is harder than it seems. The burden of action has now shifted. People who would be unwilling to pass a law legalizing PAS may also be unwilling to pass a law criminalizing it. Uncertainty and ambivalence favor the status quo—whatever it is. Especially in this time of spiraling health costs and economic uncertainty, people may think, “I’ll hold on to the possibility of PAS—just in case.”
The Baxter decision is radical: it says that intentional killing isn’t always a matter of public concern. It is stealthy. By refraining from finding a state constitutional right to assisted suicide, it avoided immediate criticism for judicial activism. It is politically canny. It put the burden of action on opponents. Most troubling of all, its strategy is portable. There’s no reason its contorted logic can’t be exported to other states by euthanasia activists.
Related: Daniel Callahan on Washington's 2008 PAS referendum: "Doctors without Borders"
About the Author
Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.