Wednesday, March 3, 2010

Commonweal Magazine on Baxter v. Montana.

The latest issue of Commonweal features an article by Cathleen Kaveny on what she calls "the other pro-life issue," assisted suicide. Citing the oversight of the New Year's Eve decision on Baxter v. Montana - which states that the state constitution does not prevent assisted suicide - as a result not only of the holiday and the health care debate but an assumption that the decision is not as bad as "pro-life" advocates had feared it would be. She uses the rest of the article - and the usual "judicial activism" complaints - to explain why it is:

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 vicin- ity.” 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 commu- nity 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 consen- sual 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 be- tween 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 compe- tent 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.

Kaveny's conclusion? That "pro-lifers" should be worried. Because the decision now puts the onus to make assisted suicide illegal on the legislature, she fears that a public unwilling to vote for legalized AS might also be unwilling to make it a crime, as any bill would require. She claims that citizens may want to keep the possibility around "just in case." And she tells us that the decision is portable because the same construct of laws in other state constitutions like Montana's could allow aid in dying activists to make the same case elsewhere.

She's right. It wasn't as bad a decision as it could have been. Yet, the "pro-life" machine is incredibly powerful. The types of grassroots work, aided and abetted by powerful Legal Right and Medical Right organizations, has proven effective with initiatives like Proposition 8, for instance.

But I also find the bit in Kaveny's article about privacy to be interesting. Of course Roe v. Wade was decided on the grounds of privacy: that a woman had a right in consultation with her doctor to make the decision about her reproductive future in private. Kaveny then pulls out all the typical "pro-life" arguments against assisted suicide like coercion and financial concerns to scare us into thinking that assisted suicide is not a right, appealing to the state as keeper of laws surrounding murder and other life-ending crimes.

She makes no note of the fact that those who request aid in dying must self-administer the lethal drugs, instead it seems, arguing that doctors who abide by their patients wishes by prescribing the drugs should be liable for prosecution - and that giving such a prescription is very different from those doctors consenting with a patient's wish to not receive artificial treatments or to be removed from such treatments.

There is a firestorm coming to Montana as "pro-life" groups work to pressure state legislators to introduce bills that will render assisted suicide illegal. Abortion may be the primary "pro-life" issue but the battle to prevent legalization of aid in dying will soon focus resources and emotions on the other issue on the platform.

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