*1 BAXTER, SPECKART, M.D., ROBERT STEPHEN AUTIO, M.D., PAUL LAR LOEHNEN, M.D., C. RISI, JR., M.D., GEORGE & CHOICES, COMPASSION Appellees, Plaintiffs and v. BULLOCK,
STATE OF MONTANA and STEVE Appellants. Defendants DANo. 09-0051. Argued September 2, 2009. September Submitted 2009. Decided December 2009.
Rehearing
Denied March
For Mark S. Connell Connell Appellees: Portland, Tucker; Choices; Missoula; Compassion L. & Kathryn Oregon. Lovell; Lovell; Lance Amici Lance Law Offices of
For Curiae: Counsel, Linton; Thomas More Benjamin Special Billings; Paul Northbrook, Illinois; Brejcha; President & Chief Society; Thomas Care Counsel, Society (Physicians Compassionate Thomas More for Foundation); Murnion; Education C. Nickolas Nickolas C. Murnion Firm; Jordan; Marker; Law; Steubenville, Attorney Law Rita L. at (International Suicide, Ohio Task Force on & Euthanasia Assisted et al.); Schmidt, Attorney Law; Fund; Duane T. at Alliance Defense (of Scottsdale, Aden, Arizona; Counsel); Steven H. Matthew S. (of Counsel); Fund; Bowman Washington, Aliance Defense District Council, (Family al.); Columbia Research et Patrick Flaherty, Attorney Law; Falls; Avila; Law; Everett, at Great Daniel Attorney at (Institute Bioethics, Study al.); Massachusetts Disability & et Shanahan, Jon Metropoulos; Gough, Johnson, Waterman, PLLP; & Helena; Smith; Law; Mailee R. Attorney Chicago, at Illinois (Coalition 28 Bipartisan Legislators); Margaret Dore; Montana K. Dore, Margaret PS; Seattle, Law Officesof K. Washington (Supporting Appellants); Jones; Hohenlole, Jones, PLLP; Donald Ford Helena; Stephen Gold; F. Attorney Law; at Philadelphia, Pennsylvania Yet, ADAPT, (Disability Amici Curiae -Not Dead Disability Fund, al.); Education and et William P. Defense Driscoll; Driscoll, Franz & PLLP; Helena; Davis; Maxon R. Davis (Montana Hatley P.C.; Haffeman & Tighe, Great Falls Catholic Conference);Jeffrey Davidson; Wilmer, Cutler, J. Pickering Hale & (Christian LLP; Dorr Washington, District of Columbia Medical *3 Association); Thomas A. Dooling, Brenneman; Beth Staff Attorneys, Disability Montana; Rights Helena; Larose; Andree Reynolds, Sherwood, PLLP; Motl and (Disability Helena Rights Montana); Peter Michael Meloy; Meloy Firm; Helena; Law Miles J. Zaremski; (American Zaremski Group; Northbrook, Law Illinois College Legal Medicine in Support Plaintiffs-Appellees); Scott A. of of Fisk; Crowley PLLP; Helena; Fleck Free, Robert A. Katherine C. Chamberlain; Hoague Seattle, MacDonald & Bayless; Washington (Surviving Family Support Members in Dying Aid in in Support of of Plaintiffs-Appellees); Griffing; Elizabeth L. ACLU of Montana (ACLU Foundation; Missoula Montana as Amicus Curiae in Support of Plaintiffs-Appellees); Byron Boggs; Attorney Law; W. Missoula; at of David Burman, Chander; J. Kanika LLP; Seattle, Perkins Coie Washington; Jeremy Buxbaum; L. LLP; Chicago, Perkins Coie (Montana Illinois Legislators in Support Privacy and Dignity in Support Appellees); Hunt, James Hunt, G. William E. / of Plaintiffs Sr.; Dix, McDonald; Hunt & (Religious Helena Amici Curiae on Behalf Baxter); Fisk; Scott A. Crowley PLLP; Helena; Fleck Nicholas W. Aelstyn; Diamond, van Beveridge P.C.; Francisco, & San California (Legal Elison, Larry Scholars Huff, M. Thomas P. Professors LLP; Freeman; & Block al.); A. Jenner Chemerinsky et Lee Erwin Groman, O. Nicholas Illinois; A. Michelle Chicago, LLP; District of Washington, & Block Jenner Stephanopoulos; (Montana Plaintiffs-Appellees); Support Bioethicists Columbia Beamer, Missoula; H. Office; Norman Black; Black Law Michael G. (Montana with Alto, Residents Jacobs; Palo California S. East Aaron Seattle, Boxx, Professor; Inc.); Autonomy, Karen Disabilities LLP; Seattle, Power; Stoel Rives Vanessa Soriano Washington; al.). Goetz, & Voice, Goetz; H. Gallik James Washington (Legal et LLP, Burling Rawles; Covington & Baldwin, P.C.; Bozeman; Lesli A. (American Association, al.); et Medical Women’s Diego, California San (Montana Seattle, Lawrence; LLP; Washington K&L Gates Paul J. et al.) Humanists, Network, Billings Association Human of the Court. Opinion LEAPHART delivered the JUSTICE Judicial from the Order ofthe First appeals The State ofMontana ¶1 Baxter, summary judgment in favor of Robert granting District Court M.D., Loehnen, M.D., Autio, M.D., Lar C. Paul Stephen Speckart, Choices; Risi, Jr., M.D., & and from George Compassion terminally ill has a competent, decision that a District Court’s II, Sections 4 and 10 of the to die under Article Constitution, protection which includes Montana affirm in under the homicide statutes. We prosecution from part. and reverse in part rephrase following appeal: We issues on competent, the District Court erred in its decision that I. Whether dignity, die
terminally patients have a constitutional to with prosecution from protects physicians provide which under the homicide statutes. attorney Mr. Baxter is entitled to fees. II. Whether
BACKGROUND Baxter, truck appeal originated This with Robert a retired driver Billings terminally lymphocytic from who was ill with leukemia with decision, the District Court’s lymphadenopathy. diffuse At the time of chemotherapy, rounds of being multiple Mr. Baxter was treated with effective over time. As a result of the typically which become less treatment, variety suffered from a disease and Mr. Baxter *4 infections, and including fatigue chronic debilitating symptoms, sweats, nausea, glands, weakness, anemia, massively swollen night and generalized pain and significant ongoing digestive problems and frequency to increase in symptoms expected The were discomfort. intensity chemotherapy as the lost its effectiveness. There was no cure prospect recovery. for Mr. Baxter’s disease and no Mr. Baxter option ingesting prescribed a lethal dose of medication wanted his and self-administered at the time ofMr. Baxter’s own choosing. Baxter, Choices, physicians, Compassion brought Mr. four & challenging constitutionality
an action in District Court of the application physicians provide of Montana homicide statutes to dying mentally terminally competent, patients. The complaint alleged patients right dignity have a to die with under II, 10, the Montana Constitution Article Sections 4 and which address dignity privacy. individual 2008, In December the District Court issued its Order and
Decision, holding that the Montana constitutional rights individual privacy dignity, together, and human encompass of a terminally ill competent, patient dignity. to die with The District Court held that a patient use the assistance of his to obtain a prescription for a lethal dose of patient medication. The would then decide whether to self-administer the dose and cause his own death. patient’s right District Court further held that the to die with dignity protection patient’s physician includes ofthe from prosecution Lastly, under the State’s homicide statutes. the District Court awarded attorney Mr. Baxter appeals. fees. The State
STANDARDS OF REVIEW We review an granting summary judgment order de using novo the same standards applied the District Court under M. R. Civ. P. City 93, 15, 56. Bud-Kal v. of Kalispell, 25, 30, 2009 MT 350 Mont. ¶ 738, 204 P.3d 743. Where there is a cross-motion for summary judgment, we review a district court’s decision to determine whether Bud-Kal, its conclusions were correct. 15. We review an ¶ award of attorney fees for Buxbaum, abuse of discretion. Trs. Ind. Univ. v. 97, 15, MT 315 Mont. 69 P.3d
DISCUSSION parties appeal arguments focus their question on the a right whether to die with dignity-including physician aid in dying-exists under privacy dignity provisions of the Montana Constitution. The District Court held that a competent, terminally ill has a II, to die with under Article Sections 4 and Montana Constitution. Sections 4 and 10 address individual *5 The District Court respectively. to dignity privacy, and the protecting includes the the to die with further held that statutes. under Montana homicide physician prosecution from that Montana homicide laws are The District Court concluded a physician competent, to a who aids applied unconstitutional terminally patient dying. amici briefing by parties the extensive the recognize While we issues, guided by judicial the
on the constitutional this Court constitutionality decline to rule on the of a principle that we should reaching decide the case without legislative act if we are able to Adkins, 71, 12, 349 constitutional State v. 2009 MT Mont. questions. ¶ Texaco, Inc., 444, 447, 1, 5; Dist. 2 v. 204 P.3d Sunburst Sch. No. 259, 279, MT 165 P.3d 1093. Since both 338 Mont. parties recognized possibility have of a consent defense to a 45-2-211(1), MCA, charge analysis homicide under we focus our on § statutory, can at the rather presented whether issues be resolved constitutional, than the level. proposition We start with the that suicide is not a crime under situation, dying only person might
Montana law. In the aid in' who conceivably prosecuted be for criminal behavior is the who a prescribes lethal dose of medication. the claims of the plaintiff physicians premised significant part upon are concerns that they extending could for aid in it prosecuted dying, we deem appropriate analyze culpability by to their for possible homicide examining physician’s whether the consent of the to his aid in dying statutory charge against could constitute a defense to a homicide physician. physicians The consent statute would shield from homicide if, liability consent, the patients’ physicians provide aid in ill, dying terminally mentally competent patients. adult We first statutory applies physicians determine whether a consent defense and, second, provide dying who aid in whether patient consent is ll(2)(d), MCA, by rendered ineffective 45-2-2 because permitting resulting against conduct or harm “is public policy.” 45-5-102(1), MCA, Section states that a commits the knowingly offense of if “the person purposely deliberate homicide or 45-2-211(1), being causes the death of another human ....” Section MCA, defense, stating a establishes consent as “consent of the charged victim conduct an to constitute offense to the result Thus, prosecutes thereof is a defense.” if the State providing mentally competent, terminally to a ill adult aid, physician may to such be shielded from
patient who consented defense, liability to the consent statute. This consent pursuant however, only statutory exceptions effective if none of the to consent 45-2-211(2), MCA, exceptions: codifies the four applies. (a) given by person legally if: it is who is Consent is ineffective incompetent charged to authorize the conduct to constitute the (b) offense; given by person youth, it is reason of mental defect, disease or or intoxication is unable to make a reasonable of the conduct judgment charged as to nature or harmfulness (c) offense; force, duress, to constitute the it is induced (d) deception; against public policy permit it is the conduct harm, resulting though or the even consented to. circumstances statutory rendering The first three consent ineffective *6 require case-by-case factual determinations. We therefore confine our whether, analysis exception to the last and determine under Montana law, against public policy. consent to aid in For the below, reasons stated we find no indication Montana law that ill, aid dying provided terminally mentally competent adult patients against public policy. 11(2)(d), MCA, Section 45-2-2 renders consent ineffective if “it is
¶14
against public
harm,
policy
permit
resulting
the conduct or the
even
though consented to.” We addressed the applicability
provision
of this
Mackrill,
v.
State
2008 MT
345 Mont.
between Gluesing Livingston Jason Mackrill and Robert outside a bar. Mackrill, who had drinking heavily, spent been part better evening disrupting bar-goers, including other Gluesing. When a Mackrill, bartender refused to serve Gluesing offered Mackrill a few and encouraged go dollars him to elsewhere. Mackrill became obstinate and refused to leave. When the picked up phone bartender to call police, Gluesing outside, escorted Mackrill out of the bar. Once began punching Gluesing, Mackrill including “very solid shot” that Gluesing’s caused feet ground to come off the and the back of his head arrived on and paramedics called 9-1-1 A witness the pavement. to hit in the street. bleeding and unconscious Gluesing They found the scene. injuries, for head and treated hospital transported He was fracture. including a skull assault, aggravated with one count charged Mackrill The State and filed a guilty 45-5-202, pleaded He MCA. felony under § argue he would Defenses, he stated in which Affirmative
Notice of guilty. He then found Mackrill jury trial. The a defense at consent as evidence to introduce claiming the State failed motion post-trial filed a to the Gluesing did not consent jury could conclude which upon matter, court denied the district hearing on the After a fight. is not an that consent Court concluded appealed. This motion. Mackrill 45-5-202(1),MCA. under charge against an assault effective defense Mackrill, addressing the only Montana case is the The Mackrill decision one set consent. It demonstrates exception to
public policy ineffective a defense is rendered consent as in which circumstances public resulting “against harm is conduct or permitting because applies to consent policy” exception “against public This policy.” endangers others. physically and public peace disrupts conduct that aggression and Mackrill, unruly, physical public Clearly, under “against public parameters within the individuals falls between intoxicated, brawling in a The men were policy” exception. process. others in the endangering space, yields this issue that have considered survey A of courts is rendered ineffective understanding that consent unanimous by aggressive cases characterized policy”in assault “against public endanger physically public peace combative acts breach others. *7 these unusual volume of Washington is home to an The State of
¶19
consistently
Washington courts have
cases.
policy” exception
“public
brutish,
only to
exception applies
“public policy”
held that
Dejarlais, the
In State v.
endangers
others.
irrational violence
not a defense to
held that consent is
Washington
Court of
Supreme
939, 942,
2d
order. 136Wn.
protection
a domestic-violence
violations of
1998).
(Wash.
Hiott, the court determined
90,
In State v.
969 P.2d
91
people agreed
in
two
game
to a
which
that consent is not a defense
of the
because it was
breach
guns
BB
at each other
shoot
(Wash.
2
App. Div.
825, 828,
P.2d
137
987
peace.
App.
97 Wn.
1999).
not a defense to
Weber,
held consent is
v.
the court
In State
persons.
incarcerated
two
degree assault between
charge ofsecond
(Wash.
2007).
852, 860,
App.
App.
Wn.
155 P.3d
Div. 3
court noted there
nothing redeeming
permitting
“is
valuable in
every
Weber,
fighting and
reason
dissuade it.”
performs a direct and violent act that brawler, causes harm. The bar prison fighter, BB gun-shooter, and aggressor domestic violence all committed directly violent acts that caused harm and breached the public peace. It is clear from these cases that courts deem consent ineffective when directly defendants blatantly aggressive, commit peace-breaching against acts party. another contrast, terminally who aids a ill patient is not directly involved the final decision or the final act. He or she only provides a means which a terminally patient can himself give effect life-ending decision, not, to his as the case Each be. stage of the physician-patient private, civil, interaction is compassionate. The physician terminally ill patient together work to create a means which can be in control of his own mortality. subsequent private decision whether to take the medicine does not breach public peace endanger others. Although “against public policy” exception 45-2-211(2)(d), of MCA, is not limited to violent breaches peace as discussed in cases, above we see nothing analysis the case law facts or suggesting
243 subsequent his physician, private interaction patient’s that a by a provided medication to take whether regarding decision Montana a review of thus turn to policy. We violate physician, statutory law. that statutes in Montana find no indication similarly We Rights of The Montana policy. against public dying aid in
physician Act) statute’s and the homicide (Terminally Terminally 111Act that not indicate being, do “another” human applicability narrow against public policy. physiciаn aid the offense 45-5-102, MCA, commits “person a Under § (a) causes knowingly purposely if: deliberate homicide dying, the aid in being physician ....” another human the death of terminally patient ill for a medication available physician makes to cause his then choose whether it, patient and the would requests terminally ill medicine. The self-administering the death own is no not criminal. There the medicine is ingesting act of patient’s “oneself,” as indicating killing homicide in the statute language offense, “another,” separate and there is no punishable is a opposed to no indication There is thus criminalizing suicide. statute Montana a dying-in which statutes that in the homicide taking of a possession elects and consents to terminally ill that, it, if he chooses to take will medicine from a quantity of against public policy. death-is cause his own Terminally 111Act that indication in the similarly There is no Act, Terminally The dying against public policy. physician aid matter, statutory starting point for very subject apt is an by its terminally ill give intent understanding legislature’s and assurance autonomy, respect Mr. Baxter-end-of-life patients-like Terminally Act life-ending wishes will be followed. that their liability civil for immunizes from criminal and expressly physicians life-sustaining or withdraw following patient’s a directions to withhold 50-9-204, Indeed, has legislature MCA. Section treatment. wishes. according patient’s to act criminalized the failure Terminally 111Act also 50-9-206, parts MCA. Other Section patient’s preferences. end-of-life respect with this resonate calling 50-9-205, MCA, any purpose,” explicitly prohibits, “for Section 50-9-501, MCA, homicide,” death “suicide creating a “declaration Attorney General with charges the Montana to educate Montanans waging campaign a statewide registry” and The statute even establishes decisionmaking. about end-of-life registry specifically for state fund account specialized 50-9-502(b), program. education MCA. Rights Terminally very of the 111Act clearly provides autonomous,
terminally patients decisions, are entitled to end-of-life if even enforcement of those decisions involves direct acts Furthermore, physician. there is no indication in the *9 Terminally 111Act that an additional means of giving effect to a patient’s patient, any assistance, decision-in which the without direct chooses the time of against public policy. his own death-is The Legislature Montana codified by several means which a patient’s life-ending request can be fulfilled. The Terminally 111Act authorizes an individual “ofsound years age mind and 18 or older any to execute governing at time a declaration withholding or life-sustaining 50-9-103, withdrawal of treatment.” Section MCA.The Terminally 111 “life-sustaining Act defines any treatment” as medical procedure only or intervention that “serves to prolong dying process.” 50-9-102(9), Section MCA.The declaration operative when it is communicated to the registered or nurse and the declarant is determined in to be a terminal condition longer and no able to vocalize his 50-9-105, end-of-life wishes. Section MCA. Terminally Act, short, The terminally confers on ill patients to have followed, their end-of-life wishes even if it requires direct participation by physician through withdrawing or withholding 50-9-103, treatment. Section Nothing MCA. in the statute indicates it against public policy to honor those same wishes when the patient is conscious and carry able to vocalize and out the decision himself with self-administered medicine and no immediate or direct physician assistance. The Terminally 111Act contains declaration patient may forms a
use legally ensure his end-of-life instructions will be followed. The shed light forms critical on the end-of-life roles terminally ill Montanans and physicians, their as envisioned and codified legislature. The first declaration states:
If I should have an incurable or that, irreversible condition without the life-sustaining treatment, will, administration of the opinion my attending physician or attending advanced practice registered nurse, my cause relatively death within a short time I longer and am no able to make decisions regarding my treatment, medical my I direct attending physician or attending practice registered nurse, advanced pursuant to the Montana Terminally Act, ofthe to withhold or withdraw only prolongs treatment process and is not pain. to alleviate necessary my comfort or 50-9-103, language of 50-9-103(2), The declaration MCA. Section terminally legislature’s provide intent to MCA, highlights the only followed) (and their have express various means patients authorizes but also preferences, end-of-life autonomous withdrawing the act of diagnosis terminal in both the involvement withholding treatment. declaration, creating legally-enforceable this legislature, The act in professionals and medical physicians also immunized physicians The shields patient’s wishes. statute accordance with stop life- instructions liability following from treatment, treating altogether. refrain from him sustaining only Terminally that the 111Act 50-9-204, MCA. The Dissent states of, life-sustaining away refraining giving” from “taking allows the definition of “withdraw” confirms medical treatment. The Dissent’s is, itself, away” physician. a direct act “taking away” something that was taking is “the act back or “Withdrawal” English Dictionary International granted. Webster’sThird New 1971) ed., Gove G. & C. Merriam Co. Language (Philip Babcock added). act, “taking away.” “giving” is an as is (emphasis *10 a direct act of Terminally physicians 111Act authorizes to commit contrast, care, which hastens death. withdrawing medical solely making involvement aid consists physician’s terminally patient. available to the ill instrument of the “act” bring whether to commit the act that will patient himself then chooses by expressly legislature public policy own death. The codified about his to the gives commit a direct act that effect immunizing physicians who 50-9-204, terminally ill Section MCA. life-ending patient. wishes of a physician in the Act that a lesser involvement suggestion There is no medicine)-which does of is then vetted (making available a lethal self- terminally intervening subsequent a ill choice and patient’s ingestion-is against public policy. administered from Terminally explicitly physicians 111Act shields criminal, withdrawing or professional liability civil or for the act of terminally from a ill who withholding life-sustaining treatment 50-9-204, an entire legislature MCA.1The devoted requests it. Section operative words in the The Dissent has erred in its statement Terminally “permitting patient” life- a to withdraw or withhold 111Act are those Dissent, Terminally sustaining 111Act was created treatment. 107. The patients and therefore in which cannot act on their own behalf to address must authorize others situation only act in this statute are to act for them. The individuals who immunity, еnsuring codifying physicians this section to terminally a ill acting held liable for consistent with nurses will not be 50-9-204,MCA, an extensive provides to die. Section patient’s decision from exempt prosecution: and others professionals list of medical (a) registered nurse who causes physician practice a or advanced treatment from withholding life-sustaining or withdrawal of (b) in the participates who qualified patient; life-sustaining treatment under withholding or withdrawal physician the authorization of the or advanced direction or with (c) nurse; emergency medical services registered practice withholding or participate who cause or in the personnel life-sustaining treatment under the direction of or withdrawal of practice the authorization of a or advanced registered receipt or who on of reliable documentation nurse living protocol.... follow a will added). 50-9-204, immunizes (emphasis
Section MCA The section also facilities, designee. and the providers, patient’s health care health care 50-9-204(e), Terminally MCA. The second enactment Section Act’s immunity emergency to include medical service expands 50-9-204(c), explicitly Section MCA.The statute states that personnel. subject liability the above individuals are “not to civil or criminal 50-9-204(1), guilty unprofessional conduct.” Section MCA. This immunity professionals for medical reinforces the encompassing terminally patient’s right ill to enforce his decision without fear that give prosecuted. those who effect his wishes will be Further, legislature criminalized the failure to follow willfully A end-of-life instructions. “who fails to record the determination of terminal condition or the terms of a fine, a maximum punishable declaration” is a maximum one $500 50-9-206(2), year jail, Section A person both. MCA. conceals, cancels, defaces, “purposely or obliterates the declaration of punishable by another without the declarant’s consent” is the same. 50-9-206(3), message MCA. The statute’s is clear: failure to give terminally patient’s life-ending effect to a declaration is a crime. Terminally similarly legislative Other 111Act parts reflect *11 autonomy end-of-life
respect patient’s physician’s legal for the and the 50-9-205, obligation patient’s to with the declaration. Section comply non-patients-particularly, terminally professionals-who the directions of a medical follow affirmatively patient ill and withdraw or withhold treatment. as either “suicide treating the death MCA, any purpose, prohibits, for deeming anyone from by prohibiting legislature, The homicide.” cannot companies suicide, that insurance ensured a homicide or act choice patient’s family his for ill and terminally patient punish die. the statute. supported not also lists behaviors provision The 50-9-205(7), MCA, listed. Section dying is not aid Notably, physician mercy authorize, condone, approve chapter “This does reads: definition, neither is, by dying aid in Physician killing or euthanasia.” death of a putting to is the “intentional Euthanasia of these. mercy.” as an act of disease intended painful
with an incurable (28th ed., & Lippincott Williams Dictionary 678 Medical Stedman’s 2006). term for killing” is the active “mercy phrase Wilkins the intent is to ending life in which as “a mode of defined euthanasia Medical act.” Stedman’s single death in a patient’s cause consent-based, and these definitions is at 678. Neither of Dictionary decision to self-administer autonomous neither involves cause his own death. drugs that will the Montana Terminally 111Act orders of the part The final care declaration and maintain a health
Attorney to “establish General 50-9- updated. and Section declarations are stored registry” which account health care declaration also creates a provision MCA. The must fund, Attorney General revenue which special in the state registry” declaration the health care use to “create and maintain 50-9-502(b), program. outreach create an education and planning health care pertain must to “advance program MCA. The 50-9-505( 1),MCA. The decisionmaking.” Section end-of-life health care legal readily the need for available program “explain must also health care wishes.” Section an individual’s express documents and education 50-9-505(c), outreach registry requirement, MCA. The both, legislative indicate intent funding for provisions, and state terminally patients rights promulgate honor and end-of-life medical care. autonomously the direction of their choose aid choice-physician another indication in the statutes that There is no honoring ethos of the end-of-life dying-is against legislative terminally ill. decisions of the Terminally 111Act that in the There is no indication Indeed, the Act reflects public policy. against illness. facing incurable the wishes of a
legislative respect for a legislative regard protection The Act also indicates Act immunizes a patient. to the legal obligation his who honors *12 if it physician following patient’s requires for the declaration even the directly unplug patient’s the ventilator or withhold patient medicine or medical treatment the alive. keeping hand, Physician aid in the other dying, require on does not such direct Rather, in physician. dying, involvement the final death-causing act In light long- lies hands. of the and standing, evolving unequivocal recognition terminally ill patient’s right to self-determination at the end of life in Title 9, MCA, chapter incongruous it would be a physician’s conclude that dying contrary policy. indirect aid in public There are three central problems response. with the Dissent’s First, 45-5-105, the Dissent applies factually MCA-a statute that § does not to Mr. apply appeal. only applies Baxter’s This statute if the Second, suicide does not occur. the Dissent the statute’s massages legislative history legislation, into makeshift which it then proffers as analysis policy. directly Such violates this Court’s precedent regarding statutory interpretation. 45-5-105,MCA, The Dissent first cites stating person may that a § prosecuted aiding soliciting only
be suicide if the individual does Dissent, not die. 101. The plain meaning statute’s is clear. It is ¶ also inapplicable. The narrow scenario we been have asked to consider on appeal involves the situation in which a terminally patient affirmatively seeks a lethal dose of subsequently medicine and self- it, causing 45-5-105, administers MCA, his own death. Section unambiguously only applies when the suicide does not occur. Under this precedent, Court’s the inquiry stops there. We have repeatedly held that we will interpret beyond plain not a statute its language language if the is clear unambiguous. Mont. Sports Shooting Statе, 190, 11, Ass’n v. 1, 4, 2008 MT 344 Mont. 185 P.3d ¶ 1003, 1006; Letasky, 51, 11, 336 State v. 178, 181, 152 2007 MT Mont. ¶ (“We P.3d interpret a statute first looking to the plain language, statute’s if language is clear and unambiguous, no interpretation Here, further is required.”). legislature clearer, could provided not have unambiguous more language. die, If the does triggered. they the statute is If do die, the statute triggered. is not The statute provides only one clear set person may circumstances where a prosecuted. There simply nothing ambiguous about it. While conceding 45-5-105, MCA, on the one hand that applies
only when occur, the suicide does not the Dissent nonetheless unilaterally statute, stating law, revises the that “under Montana subject prosecution to criminal in a suicide are who assist physicians Dissent, dies.” survives or of whether irrespective language only law. Not does incorrect under the This is the “suicide does the scenario which clearly only address statute comments do not even themselves the Commission not occur” but regarding intent legislature’s enlightenment on provide Instead, the statute itself. soliciting suicide language of the aid crime) (and of a different statute speak comments Commission fact, analyze language, such as the comments altogether: Homicide. soliciting in the aid or death,” appear not even “agent of that does only in Montana code. The Dissent not anywhere statute or else statutory regarding interpretation, disregards precedent this Court’s *13 unelected uncodified comments of eleven grants but it also weight of law. individuals physician that consent to aid argues The Dissent
¶43 defined as an simply because the conduct is against public policy reasoning That is circular. The offense under the criminal statutes. saying by simply consent statute separate Dissent cannot obviate a against public policy, definition statutory that all crimes are against policy. If that therefore consent to that conduct is also case, felt to enact legislature compelled were the would not have statute, consent separate By enacting separate a consent statute. it obviously envisioned situations in which is not legislature a to consent to conduct that would against public policy for victim constitute an offense under the criminal statutes. otherwise 45-5-105, to extend consideration to Even if this Court were § MCA, legislature’s a reflection of the views on third generalized as suicides, no indication that the party involvement in there remains very to to the narrow set of apply statute was ever intended a terminally patient circumstances in ill seeks out which himself him means end his physician provide and asks the to to states, addressed original life. As the Dissent enactment own Dissent, 99. The party “encouraging” situations of a third a suicide. ¶ “soliciting”language. the same focus in the present version reflects language party addresses the situation in which a third plain statute’s unilaterally person. dying, In solicits or aids another himself, third patient party the solicitation comes from the not a physician. legislators There no indication that the 1973 Montana to this situation in
contemplated apply specific the statute would ill seeks a means which he can end his terminally which a fact, years it not until twelve later suffering. incurable was own Act, Terminally 1985, legislature enacted the that the complexities physician- squarely addresses the modern which terminally provided end-of-life care technology-dependent in the then, legislature-as illustrated Montanans. Since carefully statutory Terminally analysis 111Act above-has cultivated autonomously terminally ill Montanans the gives scheme that the end of terminal illness. happens painful choose what to them at erred in Finally, we determine whether the District Court attorney Following entry fees. of the District awarding Mr. Baxter claims, judgment on the constitutional Mr. Baxter moved Court’s attorney amend fees 59(g) under M. R. Civ. P. to include an award of 27-8-313, MCA, and supplemental private relief under attorney Court fees to attorney general doctrine. The District awarded private attorney general Mr. Baxter under the doctrine. We review grant attorney or denial of fees for abuse of discretion. Trs. Ind. 15, 663, Buxbaum, 210, 216, MT Univ. v. 315 Mont. 69 P.3d ¶ private attorney general applies doctrine when the government significant fails to enforce interests which are properly Responsible its citizens. Montanans Use the Sch. Trust v. Commissioners, 263, 64, 296 State ex rel. Bd. Land 1999 MT Mont. ¶ 402, 421, doctrine, attorney general 989 P.2d 811. The private however, applies only when constitutional interests are vindicated. State, 376, 21, 70, 78, Soc’y Am. Cancer v. 2004 MT 325 Mont. Therefore, holding today P.3d 1091. Our is statute-based. interests, without the vindication of constitutional an of fees award *14 private attorney general under the doctrine is not warranted. attorney Although appropriate fees “further relief’ under ¶48 27-8-313, MCA, only are appropriate equitable “such fees if § considerations the United support award.” Nat’l Ins. Co. v. St. Paul Co., 269, 38, 105, 118, &Fire Marine Ins. 2009 MT 352 Mont. ¶ 1260, National, P.3d equitable 1271. As United the considerations support attorney here do not an award of fees. Mr. Baxter is accompanied plaintiffs, including physicians other four Choices, & Compassion nonprofit organization. a national The relief granted herein the incomplete inequitable Plaintiffs is not having attorney without the Montana the taxpayers pay fees. conclusion, nothing In Supreme we find Montana Court ¶49 precedent indicating physician dying or Montana statutes that aid in against public policy. “against public policy” exception is The applicable this Court as to violent interpreted consent has been satisfy peace. Physician dying the aid in does not breaches of nothing plain language find in the of Montana that definition. We also indicating dying against public policy. aid in physician statutes physician dying, patient-not physician-commits aid death-causing by self-administering final act a lethal dose of medicine. Furthermore, Terminally 111Act the Montana ¶50 legislative respect patient’s indicates for a autonomous to decide if and he receive medical treatment at the end of his life. The how will Terminally physicians liability acting shields from explicitly Act wishes, patient’s physician in accordance with a end-of-life even if the actively pull plug patient’s must on a ventilator or withhold keep statutory treatment that will him alive. There is no indication involvement, physician lesser end-of-life in which the act, against public policy. himself commits the final We therefore 45-2-211, MCA, terminally hold that under consent to statutory charge constitutes a defense to a homicidе against aiding physician when no other consent exceptions apply. vacated, ruling The District Court’s on the constitutional issues is
although grant summary judgment court’s statutory Plaintiffs/Appellees grounds is affirmed on the alternate set forth attorney above. award of fees is reversed. COTTER,
JUSTICES WARNER MORRIS concur.
JUSTICE WARNER concurs. I concur. opinion today statutory it, The Court’s question: answers law, against a matter of the public policy of Montana for a mentally competent, terminally to assist a ill person to end their life? “No, not, provided answer is: it is as a matter of law.” correctly This Court avoided the constitutional issue Baxter present. question brought desires to No Court greater before this is of delicacy than power legislature one that involves the to act. If it indispensably necessary becomes to the case to answer such a question, it; this Court must meet and decide but it is not the habit of questions courts to decide of a constitutional nature unless absolutely necessary e.g. to a decision of the case. See Ex parte (C.C.Va. 1833) 242, (Marshall, Randolph, 20 F. Cas. Circuit Justice); States, 283, 295, 243, 245 Burton v. United 196 U.S. 25 S. Ct. (1905); Kolb, 504; State v. 2009 MT 349 Mont. 200 P.3d Statutory Common Cause Montana v. Committee to Nominate *15 252 324, 329, Practices, 868 263 Mont. Commr. Political Candidates for of State, Industry, (1994); Labor and 604, Dept. v. P.2d 607 Wolfe 336, 339, 843 P.2d 255 Mont. Appeals,
Board Personnel (1992). 45-2-211, to job pursuant done its and held that This Court has ¶55 suicide, to be MCA, happens a and who who assists so, may the defense of consent. doing a crime for assert charged with thoughtful thought provoking and join opinion, I and not assisting stated that dissent, Legislature plainly has not because This Court must not add such against public policy. suicide 1-2-101, MCA. by judicial fiat. Section provision necessarily limited to logic opinion of the Court’s is not my view, right the citizens of Montana have the to have physicians. In squarely question and face the legislature step up plate their case, just by job, policy do their and decide what is presented of Montana on this issue. Baxter, I analysis requested by As the constitutional have for my that Viscount Falkland is many judicial
found times in career decision, necessary it necessary correct: when it is not to make a A should not be question not make a decision. constitutional law necessity deciding it. v. anticipated in advance of the Ashwander 346-47, Authority, S. Ct. Valley Tennessee 297 U.S.
(1936) (Brandeis, J., & Phila. concurring) (quoting Liverpool, N.Y. Commissioners, 33, 39, 113 U.S. 5 S. Ct. Steamship Emigration Co. v. (1885)). 352, 355 NELSON, specially concurring.
JUSTICE good long life, I have lived a and a and have no wish to leave disease, my As death prematurely. approaches this world from however, my suffering legal becomes I want the unbearable if option being peaceful dignified able to die in a and manner consuming prescribed by my purpose. medication doctor for my my my suffering, life, Because it will be and death that will be involved, responsibility I seek the and to make that critical I myself strongly choice circumstances lead me to do so. if feel intensely personal private that this decision should be left my my deeply me and conscience-based on most held values and beliefs, consulting my family with doctor-and after not have the this choice government prohibit should dying procedure.1 criminalizing the aid in the District to vacate the Court’s decision exception With 51,1 issues, otherwise Opinion, ¶ the constitutional ruling on Court’s follow, agree I reasons which For the join Opinion. the Court’s *16 (§ MCA), 45-2-211, and I the consent statute analysis under Court’s by the dying protected in aid physician conclude that further 10) (Article II, Section privacy as a matter Montana Constitution 4). (Article II, of individual and as a matter ANALYSIS I. STATUTORY conflicting analyses “public offer two The Court and the Dissent Dissent, 14-45; Opinion, statute. See ¶¶ under the consent policy” As the view, argument. the my the Court has better 99-110. ¶¶ that it is not out, contemplates plainly the consent statute points Court to consent to in certain situations for a victim against public policy under the criminal constitute an offense conduct that otherwise would is no I the Court that there agree 43. with Opinion, statutes. ¶ aid in statutory physician law that indication in Montana caselaw the Dissent is incorrect policy. regard, In this dying against public the consent defense for Legislature the eliminated stating Dissent, 45-5-105, 105. The Dissent aiding under MCA. ¶ suicide § standing the consent statute nothing plain language to in the points Rather, the Dissent relies on the uncodified 1973 proposition. for this Dissent, 45-5-105, MCA.See Criminal Law Commission Comments § 101-103,105. course, carry Of these Commission Commеnts do ¶¶ Moreover, presumed I do not find the weight Opinion, the oflaw. 42. ¶ reflected in these 1973 Commission public policy statements of any persuasive Legislature value here. The has Comments to be public policy since codified a different the 1985 Montana Terminally Act-specifically, mentally competent, that a incurably autonomy regard ill have with to end-of- individual should respect life decisions and should be afforded and assurance that her honored, if life-ending patient’s wishes will be even enforcement of (such by the physician instructions involves a direct act treatment) life-sustaining medical which in turn causes withdrawing 27-38; Title patient’s generally Opinion, chapter death. See ¶¶ (June 2008). (one plaintiffs-appellees in Baxter Aff. Robert Baxter case) 5,2008-the day the District Court issued this its died ofleukemia on December same mentally ruling favor, holding that under the Montana Constitution a in his dignity by obtaining physician competent, incurably aid in patient right has the to die with dying. 9, MCA. therefore, mentally today, provides competent, Our decision her
incurably ill individual with at least one avenue to end mental suffering physician’s assistance. Under the consent physical statute, against public policy physician provide it is not for the prescription life-ending for a individual with substance to be self- place. administered the individual at her choice of time and As an this, corollary change the individual retains the her obvious worse-i.e., progresses patient mind as her condition for better or retains the absolute to make the ultimate decision of whether to such, life-ending physician dying take the substance. As aid in physician simply patient makes medication available to the requests patient ultimately it and the chooses whether to cause her by self-administering own death the medicine-an act which itself is not Opinion, criminal. ¶¶ I accordingly agree analysis with the Court’s conclusion consent to a statutory constitutes charge against aiding
defense to a of deliberate homicide 45-5-102, MCA, life-ending under where the takes the *17 Opinion, conclusion, substance and ends her life. 50. This same of ¶ course, applies charge aiding 45-5-105, MCA, to a of suicide under § event, where the dоes not take the substance. either physician not culpable. is reasons, For I these concur in the Court’s Opinion-except,
noted, the decision to ruling vacate the District Court’s on the constitutional issues.
II. CONSTITUTIONAL ANALYSIS Although the Court has chosen to decide this case on the narrow (as statutory ground suggested by the State ofMontana an alternative approach) 10, in its on appeal, Opinion, although briefs and ¶ (as dying protected statutorily aid is the Court holds under approach), physician dying this alternative aid in firmly is also protected by Montana’s regard, Constitution. In this I compliment Judge Dorothy District Court well-written, McCarter for her compassionate, courageous-indeed, and visionary-interpretation of our The parties extensively Constitution. have briefed the issues, Opinion, 10, constitutional see and the Dissent touches on ¶ well, Dissent, reasons, them as see 112-116. For these and because ¶¶ passionately is, likelihood, I so dignity believe that individual in all times, most important-and yet, fragile-of in our the most all human Constitution, explain I what proceed rights protected Montana’s this case-one means the context of right I within believe this state have ever cases the courts of important of the most considered. right grounded in both The District Court’s decision II, right 4 and the by Article dignity guaranteed
individual
Likewise,
II,
by Article
Section 10.
privacy guaranteed
individual
(Patients)
present
and their amici
Plaintiff-Appellee patients
10,
II, Section
regard
under
With
to Article
arguments
provisions.
both
State,
Gryczan v.
283 Mont.
they
demonstrate that under
persuasively
State,
261,
(1997),
1999 MT
Armstrong
A. First, thing: let me clear case is not about one This about Indeed, “right “right” patently to die.” the notion that there is such a absurd, constitution, statute, downright silly. if not No no no legislature, “right and no can an Nor grant court individual die.” they away. destiny can take such everything “Death is the case, Nothing that lives. ever it.”2 the context of this escapes Within only control that a has death is that if he expects over its coming relatively period within a short of time due to an incurable disease, comfort; simply accept drug-induced he can his fate and seek advance; fight prolong or he can seek further treatment and death’s or, illness, assistance, point physician’s at some in his his he *18 destiny place choosing. only can embrace his at a time and of his “right” guaranteed any to him in these decisions is the he preserve personal autonomy dignity, his and his individual as sees fit, destiny power in the face of an ultimate that no on earth can prevent. 2009). Shelby Vision, (HarperCollins Spong,
2John Eternal A New Life: they noted, and the class of individuals the Patients Thus disease, an illness or are who suffer from represent persons any reasonably available their illness or disease cannot be cured of relatively a treatment, death within expect who therefore medical their time, preserve demand the and who period short dignity facing destiny. this autonomy and their individual personal bright-line tests or choosing language, purposely I eschew this from “relatively short” varies rigid timeframes. What reasons. following I for the nonexclusive person. approach3 take this emotional, First, spiritual, and mental physical, the amount of uniquely solely and willing that one is or able to endure is suffering constitution, conscience, autonomy. and personal ofindividual matter Second, expansive may implicate more sense “suffering” This perception “quality of his of life.” person’s uniquely personal may by, among things, other one’s level of perception be informed autonomy, ability one’s to make choices suffering, personal one’sloss of communicate, situation, ability perceived one’s loss his one’s about others, ability personal self or to one’s to care for his needs of valuе to dignity, one’sfinancial situation and concern hygiene, and one’sloss illness, prolonged the economic and one’s level of over burdens personal privacy tolerance for the invasion of and individual necessarily Suffering may treatment involves. diminish palliative hand, life; suffering on the other the lack of does not quality living a life of There is a difference between and guarantee quality. and, therefore, suffering; uniquely positioned and the sufferer suffering uniquely tipping point entitled to define the that makes Third, and unbearable. while most incurable illnesses diseases follow course, every fairly predictable symptomatology illness and unique very personal experience is a for the afflicted disease Thus, person. the afflicted individual’s illness or disease informs his in ways unique personal end-of-life choices and decisions to that Fourth, life, values, and advancements in individual’s circumstances. may during period medical treatment become available between diagnosed being incurably predicted the time he is ill and the when (estimated) advancements, initially a person time of death. With those given may expect three months to live well to live two more months or Fifth, years more a new medicine or treatment. individual two vary. A to a person living proximity access to medical care Right Dignity, 27-33, generally Raphael Cohen-Almagor, to Die with See 2001). 52-79, (Rutgers University 96-112 Press *19 and treatments facility may have access to medicines medical research trial, living sparsely in a person another part as of a clinical while that One individual may opportunity. rural area not have populated care; may Sadly, not. an insured hospice access to another may have that an to medicine and treatment may individual have access Sixth, family uninsured not. each individual’s individual does family not close may different. One individual have situation is supportive and may strongly another have a involved relationships; distance, a short while family. person’s family may One live within may country across the or around person’s family spread another be die, ability to at a ability say goodbyes final and the globe. of one’s place, pеrhaps company time and predetermined ones, many important and individuals partner or friends loved Seventh, many incurably are lastly, and to their families. and who family through dying, prospect putting partner ill and their deep death is a emotional and prolonged agonizing their and source spiritual distress. intentionally I chosen Additionally, my language, choice of have emotionally charged and value-laden terms such as
not to use that the conjures up “terminal” and “Terminal” the notion “suicide.” or countdown to death. individual is on some sort of inevitable slide many individuals, appear This term trivializes the fact that with what diseases, hope retain steadfast medically to be incurable nevertheless reversed, along personal and faith that their condition will be with very Labeling an individual as fight resolve to for life until the end. seeking may only discourage the individual from “terminal” treatment efforts may discourage treatment but also further “terminal” diagnosis acknowledge A fails to providers. healthcare the sort of usually predict medicine cannot the time of death with exactitude that the use of the term connotes. an act self-destruction Similarly, suggests the term “suicide” sinful, immoral, historically damning condemned as has been Moreover,
by many religions. parlance, in modern “suicide” in the Importantly, linked terrorist conduct. and as reflected case, selectively, briefing society judges typically, in this but hand, On one deprecates individuals who commit “suicide.” body grenade his over a hand to save his fellow individual who throws Yet, hero, “suicide.” judged person soldiers is not a who committed hand, she faces on the other the individual who shoots herself because and, as protracted agonizing illness and death commits “suicide” such, and selfish in her judged a coward in the face of her illness and loss her act causes to loved ones pain consideration for the
lack of her life is likewise denounced Assisting to end and friends. ” “ Dissent, regard for human life.’ very ‘a low typifying MCA). 45-5-105, To the Comments to (quoting the Commission however, argue and their amici that a contrary, the Patients regard for the compassionate demonstrates provides autonomy dignity, suffering, recognition patient’s inevitability. acknowledgement of death’s society. Unfortunately, term in our it is pejorative “Suicide” is a (as amici as the liberally by a term used the State and its well also Dissent) individual denigrates complex *20 in this case. The term generally-and, particular, those persons circumstances that drive incurably agonizing ill and illness and death-to prolonged who are face and it generate antipathy, take their own lives. The term is used to they do not seek people represent does. The Patients and the class of Rather, they acknowledge that death within a to commit “suicide.” of their illness or disease. relatively inescapable short time is because mind, self-administer, they ability And that fact in seek the at choosing, a time and of their medication place physician-prescribed dignity them in their human preserving during that will assist own dying. Having grips inexorability cometo with the process inevitable death, they simply government of their ask the not to force them to agonizing, degrading, humiliating, undignified suffer and die in an less; They nothing manner. seek more nor that is all this case is about. Finally, I neither use the terms nor address “euthanasia” or “mercy killing.” negative implications Aside from the of these terms conduct, criminality clearly and the of such the Patients argue do not incompetent, nonconsenting individuals or people “vulnerable” be, circumstances, any under “euthanized” or “murdered.” Toread is, view, arguments suggesting my grossly their either unfair and intellectually only dishonest. The reason that “homicide”is implicated (a) at all in this case is because the State contends that a licensed provides mentally competent, incurably ill patient substance, prescription life-ending with the for a to be self- chooses, guilty administered if she so of deliberate (b) against public policy homicide and our decision holds that it is not permit under the consent statute to to do so. II, I turn to prefatory explanation, With now Article Section
4 and dignity. of individual II,
B. Construction of Article II, provides: Article Section 4 of Montana’s 1972 Constitution dignity. dignity being of the human Individual equal protection shall denied the of the person inviolable. No be firm, any corporation, or person, laws. Neither the state nor аny in the exercise against institution shall discriminate race, color, sex, culture, rights his or on account of political civil condition, origin political religious ideas. social language, I note differing interpretations there are ofthis which While (the below, II, Article Section 4 my it is view that the first clause of Clause) stand-alone, right. is a fundamental constitutional See Dignity State, 74, 82, Walker v. 2003 MT 316 Mont. 68 P.3d ¶¶ II rights that the found in Article are “fundamental” and (explaining meaning Dignity that the of the Clause “commands that the plain humanity persons may and the intrinsic worth violated”). basic First, reject I categorically Dignity the notion that the Clause is merely “aspirational equal protection some introduction” to the rights nondiscrimination which it-a for which there proposition follow authority. upon is no Our Constitution is “a limitation powers Fischl, 258, 263, government,” Cruse v. 55 Mont. 175 P.
(1918), construing provision, and in a constitutional we are required give meaning every word, therein, “to clause and phrase, sentence do,” possible Highway if it is so to State ex rel. Diederichs v. State (1931). Commn., 1033, 1035 205, 211, 296 89 Mont. P. Accordingly, the being “[t]he command that ofthe human is inviolable” must be acknowledged as the freestanding power limitation it is on the government-much way in the same recognize by jury, we that trial *21 Const, (Mont. II, similarly 26), which is “inviolate” art. merely is not “aspirational” but is in fact a right guaranteed by concrete Constitution. Second, I reject dignity fully likewise the notion that the
implemented by Equal Protection and Nondiscrimination Clauses or that these clauses are the sole “operative achieving vehicles” for words, cannot dignity. agree In other I dignity that the inviolable of a being infringed only human when the is denied equal protection ofthe laws or exercising suffers discrimination for his or her Indeed, political rights. II, civil or interpretation such an of Article Section 4 attributes an implausibly meaning narrow to the term notes, “dignity.” Dignity As the Dissent can Clause be traced to Germany’s Constitution, West 1949 developed response which was (as regime’s to the people Nazi treatment of the Jewish well as homosexuals, disabilities, and Gypsies, persons political (so-called Dissent, people 116 n. 4. These “inferior”
opponents). ¶ eaters”4) merely equal denied of thе laws. protection “useless were government placed camps The them in concentration and used them experiments performed They for slave labor. Medical were on them. They and killed. were viewed and treated as persecuted were subhuman, any dignity. The German Constitution and without West dignity “[t]he its command that of man shall be inviolable” must be so, Doing simply understood in this context. it cannot be maintained II, only that Article 4 prohibits Section discrimination and the denial equal protection. Dignity broadly prohibits any The Clause law infringes upon dignity act that our human beings. inviolable This “vague, lurking” right suggests. Dissent, is not some as the Dissent Rather, imperative; it is an an affirmative and unambiguous constitutional mandate. This interpretation supported II, the structure of Article connection, agree
Section 4.
I
with the construction proffered
O.
Matthew
Clifford and Thomas P. Huff in their article Some
Thoughts
Meaning
on the
Scope
Montana Constitution’s
‘Dignity”
,
Clause with Possible Applications
61 Mont. L. Rev.
(2000). They point
language
II,
305-07
out that the
of Article
(which
is titled
Dignity”)
logical
“Individual
moves in a
progression
(the
Clause)
general
from the
to the
specific.
Dignity
first sentence
(the
declares that
dignity
human
is inviolable. The second sentence
Clause)
Equal
goes
way
Protection
on to declare
one
which human
dignity
by denying
can be violated:
equal protection
someone the
ofthe
arbitrary
laws based on some sort of
They
classification.
observe that
legal
our
long recognized
tradition has
such classifications as affronts
to the
of persons (citing
example
as an
of this Brown v. Board
(1954)).
Education,
Finally,
347 U.S.
Nondiscrimination Clause cannot be read as an exhaustive list of all possible arbitrary Otherwise, classifications. if the list were Annas, Moon, George Immortality, J. The Man on the and other Millennial Myths: Prospects Engineering, Emory 753, 758 and Perils Human Genеtic L.J. *22 (2000).
261
The
exhaustive,
surplusage.
Clause
Equal
Protection
would
conclude,
by including
that
they
interpretation,
more reasonable
Clause,
framers
Protection
separate
general Equal
and more
prohibited
are
possibility
leave
that there
other
open
intended to
that
in
beyond
recognized
point
those which were
at
classifications
1972).
(i.e.,
of a more
history
logic,
in
And
the same
the inclusion
dignity
open
of human
leaves
general prohibition against
violation
ways
can
that do not
possibility
dignity
that human
be violated
Indeed,
arbitrary
they argue,
sort of
classification.
involve some
give
meaning
I
distinct and
to the
agree,
independent
order to
Clause,
Dignity
avoiding redundancy,
applied
“this clause should be
there
of the
that does
separately
persons
when
is violation
unequal
not reflect the forms of
treatment or invidious discrimination
prohibited by
subsequent
Presumably anyone
the two
clauses.
could
experience
dignity,
just persons
such a violation of
who are
Huff,
protected
members of
classes.”5 Clifford and
debate, Delegate inquired express Jerome T. Loendorf whether the prohibition against necessary, given discrimination that the was equal protection already prohibits Delegate discrimination. Wade J. (chair Committee) acknowledged Dahood of the Bill of that the Nondiscrimination Equal Clause was “subsumed in” the Protection Clause, explained dealing but he that “when we’re with this type right, Delegate Loendorf, dealing something and we are that is basic, orderly society this to an and progressive perhaps sometimes the here, distinguishes my analysis my Such is the case and that fact herein from analysis Snetsinger University System, 390, 325 148, 104 v. Montana 2004 MT Mont. Snetsinger equal protection relating P.3d 445. involved discrimination and issues Thus, model, applying analytical analyzed sexual orientation. I Clifford Huff’s these II, (Nelson, J., Snetsinger, issues under each sentence ofArticle Section 4. ¶¶ See 71-97 specially concurring). case, however, present does not involve discrimination or equal protection appropriate, therefore, only Clausе, apply Dignity claims. It is protection. aas stand-alone constitutional acknowledge 6 I the intent of the framers should be determined from the (as and, Indeed, plain meaning possible here), apply if words used that is it is then we no interpretation. precluded resorting “[w]e other means of extrinsic methods of are . . . from interpretation.” Great Falls Tribune Co. v. Great Falls Public (1992) (internal Schools, 125, 128-29, quotation 255 Mont. 841 P.2d marks omitted). Dissent, however, relies on the Constitutional record. Convention Dissent, Thus, purposes responding 112-116. I discuss record ¶¶ arguments. Dissent’s constitution, right, as the becomes given by that can be well sermon Convention, necessary.” Transcript, Montana Constitutional Verbatim *23 1972, Thus, decided that it delegates 1643-44. the was pp. Mar. certain facets of language making to include the additional preferable principle supports same the protection right explicit. the This equal of the laws is but one denying equal protection that someone the notion violated, dignity in human can be as discussed above. way which II, 4, the arguing against interpretation In Section Article Delegate “[t]here Dahood’s statement that is no points Dissent to anything to do other than to particular intent within this section type object the of discrimination that all of us to with apparent remove actual in respect employment, practices, associationship to rental to quasi- that are or matters that tend to be somewhat public matters Convention, public.” Transcript, Montana Constitutional Verbatim statement, however, 7,1972, 1643. must be understood in p. Mar. This II, purporting scope context. Dahood was not to limit the of Article fact, Delegate 4. In the trying keep provision Section he was broad. language “any person, T. had voiced a concern that the Otto Habedank firm, corporation, or institution” in the Nondiscrimination Clause organizations limiting their prohibit private membership would from they force associate people and would individuals to otherwise would choose not to associate with. See Montana Constitutional Convention, 7, 1972, Transcript, p. Verbatim Mar. 1643. Habedank firm, “any therefore had to delete the person, corporation, moved Clause, language thereby institution” from the Nondiscrimination rendering applicable only the clause the state. See Montana Convention, 7,1972, Transcript, p. Constitutional Verbatim Mar. (which Dahood, turn, in argued against ultimately this amendment 13) applying was defeated 76 to and in favor of the nondiscrimination state, prohibition to entities other than the such employers, landlords, quasi-public associations. Dahood made no Dignity remarks about the Clause itself. contrast, Delegate In Proposal specifically recognized No. 33 an
independent right dignity. rights of individual It stated: “The dignity, individual and free privacy, expression being essential to the well-being society, infringe upon of a free the state shall not these rights showing compelling without the of a state interest.” See Convention, Delegate Proposals, Montana Constitutional Jan. 1972, p. proposal Rights 127. This was referred to the Bill of Committee, entirety. the See Montana adopted proposal which its Convention, Proposal, Constitutional Bill of Committee Feb. 1972, p. right dignity, right privacy, 647. The of individual right expression incorporated, respectively, of free were then into 4, 10, and 7 of Article II.7 Sections sum, given II, plain language of Article and the provision, Dignity Clause-stating
structure of this I conclude that the stand-alone, dignity being of the human is inviolable-is right. supported by fundamental constitutional This conclusion is record from the I turn Constitutional Convention. now substance right. of this Right
C. The Dignity Human is, dignity perhaps, right Human the most fundamental in the Rights. right “inviolable,” Declaration of is it meaning This is violation; from incapable being “[s]afe violated.” Black’s Law 2009) ed., ed., Dictionary (Bryan A. Garner 9th (emphasis West added). Significantly, dignity only right of human only Montana’s Constitution that It “inviolable.”8 II carrying prohibition “inviolability.” Article the absolute No individual stripped plain of her human under the *24 language Dignity private governmental entity of the Clause. No or has right power dignity simply the or the to do so. Human cannot be Snetsinger violated-no exceptions. University System, v.Montana 2004 390, 77, 148, MT (Nelson, J., 325 Mont. 104 445 specially P.3d concurring). But exactly “dignity”? what It would impractical be here to
attempt Rather, an provide meaning exhaustive definition. the of (in case-by-case this term must be fleshed out оn a way basis the same parameters that the determined process of substantive due been have basis). note, case-by-case however, on a I couple interpretations a purposes that are useful for of the present professor discussion. Law 7 regard, points Rights In this the Dissent out that the Bill of Committee did not adopt Delegate 103, Proposal L. Robert Kelleher’s No. which stated: “Ahúman fetus has right incurably right kept by to be born. The ill have the not to be alive extraordinary Dissent, course, means.” See dealing Of ¶¶ 113-115. we are not in this right kept extraordinary already case with “the addressed 9, not to be alive means”-a matter (Title statutorily by 50, Terminally chapter the Montana 111Act MCA). Moreover, Proposal the reasons behind the committee’s decision on No. 103 record, already are not stated in the Constitutional Convention and this Court has rejected attempt disposition a similar to read more than is warranted into the of this (see State, 364). Armstrong 261, 43-48, 296 v. proposal 361, 989 MT 1999 Mont. P.2d ¶¶ short, disposition proposal simply of Kelleher’s not instructive here. 8 Const, noted, by jury II, As of trial is “inviolate.” Mont. art. 26. “[fjree “Inviolate,” however, broken, violation; infringed, impaired,” means from or Dictionary Black’s Law “incapable being which is not the same as violated.” “refers to a concept states that Cohen-Almagor
Raphael
from
It is not bestowed
inner source.
from an
that flows
or value
worth
Cohen
Raphael
person.”
is intrinsic to
rather
the outside but
University Press
(Rutgers
Dignity,
with
Right to Die
Almagor, The
at oneself with
2001).
means to look
dignity,
have
argues
“[t]o
He
human, not
feel
satisfaction. We
some sort of
with
self-respect,
Dignity
at
Right to Die
Cohen-Almagor, The
degraded.”
ethical
in our Western
explain
and Huff
Similarly, Clifford
the 16th and
Religious Reformation of
tradition,
especially after
associated with
centuries,
typically been
dignity has
17th
valuable, as
intrinsically
persons as
ideal of individual
normative
individuals,
of their
part
at least
because
worth as
having inherent
rational,
autonomous,
responsible
and
independent,
capacity
at 307. Under this
Huff, Mont. L. Rev.
action. Clifford
demeaning
directly
by degrading
violated
dignity is
conception,
307;
e.g. Walker
Huff,
L. Rev. at
see also
61 Mont.
Clifford
persоn.
81-84,
103,
Clifford and
nature of human dignity. recognition explains why we collectively recoil from the pyramid of naked enemy soldiers prodded by troops guns dogs and Ghraib; why at Abu disgust fills most of us at descriptions depictions and boarding torture; water why we revolt from ethnic cleansing genocide. why It is we *26 beings fellow human well, see our rebel, when we collectively as
should care, and shelter, medical food, clothing, of lack need from in education. we innately, that once teaches, understand and we Experience A exists. being longer no the human dignity, of strip an individual kill, object of abuse, torture, because and easy to
subhuman and devoid worth or value object without that-an simply abuse million Jewish dignity. Six humanness: essential element disabilities homosexuals, and Gypsies, persons along with people, beings are human happens when to what as mute testament stand dignity. of their stripped оur accounts of collectively recoil from also why this is we I believe degradation humiliation and endure the beings forced to human
fellow theory, may, in illness.9 Pain an incurable death from agonizing of an family “surviving identify regard, themselves individuals who In this twelve support in of the affidavits brief with attached an amicus curiae submitted members” Patients. here, story compelling. though These stories each I note two of the stories argument has real “palliative the answer” care is the State’s demonstrate that dehumanizing grossly failures. and limitations Story Richard’s longtime family of her First, surviving the death members describes one Gehrig’s Richard, companion, of Lou disease: who died life, despite ofhis the conscientious efforts During Richard’s the last two weeks of comfort, nurses, caregivers provide endured doctor, hospice he and personal magnitude. pain stunning His mind was haunted physical and emotional both by him immobile. He described bed,” rigid, rendering stiffening, becoming body and that his was an acute awareness “stuck,” being “trapped,” to the “chained a sense of attacks, anxiety, panic down,” prison.” “in He suffered “tied frequent episodes addition, spasms, claustrophobia. of shortness soreness he severe muscle endured difficulty, suffocation, swallowing and the fear of of breath of limbs. coma, shortly drinking, eventually eating into a and died stopped went Richard thereafter. options Fischer death-with-dignity death, explored Notably, did not Richard various his before willing manner. Aff.Doris to aid him in this find a Montana doctor but 2009). (May 3-6 ¶¶ Betty’s Story sister, surviving family death her Second, members describes the another ofthe Betty, multiple sclerosis: who died simply hold a book and ravages Betty left her unable to suffered from MS [T]he herself; she longer to feed pages; hold utensils with which she could no to turn its therefore, waking and, spent ofher all the hours longer up hold her head could no chest, resting in She was day essentially paralyzed. her her wheelchair. her chin on slouched with swallowing nearly impossible, she could choke was Because slightest liquid puréed foods. Her attempting bit of to swallow even while body terrible, spasms. One ofthose violent and uncontrollable endure even would and resulted actually оf her wheelchair spasms her from the confines threw sores, obscenely huge of her Additionally, bed as a result had femur. she broken breaking body’s protein move, was fact that her incapacity as well as the down____[T]hese body large that her bones areas ofher so some bedsores were bear, and for nightmare of us-for her to for both It an absolute were visible. was me to treat. hospitalized of her Oregon, had to because Betty plans but she to move to made be alleviated to the point rendering the person unconscious. But in circumstances, those we still deny cannot that the individual’s human grievous has been dealt a long blow before death claims her body. Indeed, response argument the State’s palliative care is a reasonable alternative to dying, Mr. Baxter explained:
I am appalled by suggestion and the personal loss of autonomy it involves. I understand that palliative terminal or sedation would involve administering intravenous medication to *27 me for the purpose of rendering unconscious, me and then withholding fluids die, and nutrition process until I a that take weeks. During this final period my life I would remain unconscious, my unaware of situation or surroundings, unresponsive from a cognitive or volitional standpoint, and uninvolved in my own My ability death. to personal maintain hygiene would be lost and I dependent would be on others to clean my body. My family would be forced to stand a vigil horrible while my body unconscious was condition, maintained in this wasting away from dehydration, starvation and they while waited for me to die. I would want to do whatever I could to avoid subjecting my family to such a painful pointless ordeal.
While option of terminal sedation might be acceptable to some individuals-and I respect right of others to choose this course if they wish to do so-it is abhorrent to me. The notion that terminal sedation should be the only option available to me if my suffering becomes intolerable is an my personal values, affront to beliefs integrity. I always have been an independent and proud individual, and consider this form of medical treatment to be dehumanizing and I humiliating. feel strongly my privacy, dignity and sense of self-autonomy will my be forfeit if life hаs to in end a state of terminal sedation. 2008).
Supp. Aff. Robert Baxter 3-4 (Aug. ¶¶ Newofus would wish upon ourselves or upon others prolonged dying that comes from an incurable illness. And it is for this reason that some of our beings fellow human demand-rightfully, my in view-that respect we their individual to preserve their own dignity human at a time when they are mentally competent, incurably painfully broken wasting away femur. “She exhausted-beyond was and was imagination.” Although Betty person, pleaded was a stoic she often with her sister: ultimately “This is no life shortly slipped and I cannot stand it.” She into a coma and died 2009). Mary Fitzgerald (May thereafter. Aff. 3-6 ¶¶ short relatively a ill, from their illness within and faced with death period of time. compelling preserving it interests in asserts that has The State groups potential from abuses. This broad protecting
life and vulnerable entirely State’s assertion, however, inadequate to sustain the is dealing are here dying. We opposition position ill, and mentally incurably are competent, who persons with who are The State relatively a short of time. period death expect who within forcing has a government explain what interest the has failed going through is incurably prolonged competent, slow, hang on to excruciating deterioration to suffering physical Moreover, the close to State has come possible last moment. one, in any interest, “compelling” it much showing that has less incurably ill individual’s autonomous decision usurping competent, might so that physician’s to obtain a licensed assistance she dignity point die which was born. In with the same human she fact, diametrically in position appeal opposition in this the State’s Terminally 111 in the policy reflected Montana incurably mentally competent, Act: ill individual should have regard afforded autonomy with to end-of-life decisions and should be life-ending her respect and assurance that wishes will honored. Furthermore, an it must be remembered that individual’s Thus, inviolable; being it incapable human violated. absolutely may strip suggestion there is no merit the State’s that it *28 being dignity satisfy a human of his in order to an interest that the absolute, government “compelling.” right dignity The of is believes may and it even time death. It not be remains absоlute at the of well-meaning yet stripped by paternalistic from individual a government. by parties Nor it be third or institutions stripped Huff, by political ideology religious driven or beliefs. Clifford and Cf. (“To dehumanizing 61 Rev. at into or degrading Mont. L. forced suffering of pain conception good because someone else’s of a or proper dignity....”). Dignity death the loss of what exacerbates defines depth autonomy it It means to be human. defines of individual throughout and, mentally life at certainly, Usurping most death. a competent, incurably ability ill to individual’s make end-of-life his forcing person against prolonged decisions and will to suffer a core, excruciating is, at its deterioration a blatant and untenable person’s right dignity. fundamental of human violation of
III. CONCLUSION conclusion, decision, In I join the Court’s I also would affirm while ruling agree District on the I with the Court’s constitutional issues. statutory analysis, agree I McCarter that Judge Court’s but also II, dying firmly aid is Article 4 and protected Sections sections, the Montana Under these individuals 10 of Constitution. who incurably ill mentally competent and and face death within a are relatively self-administer, period right short time have the at a choosing, life-ending prescribed by a place time oftheir substance physician. makes the physician simply their medication available requests patient ultimately it and the chooses to the own death by self-administering whether cause her medicine. dying quintessentially This involves the dignity-our fragile right. to human most inviolable fundamental entity a Dignity permit person Montana’s Clause does not to force agonizing, dehumanizing, demeaning, and protracted an often death competent, incurably upon mentally individual for the sake of ideology, religious belief, paternalistic political sense ethics. Society mentally the right strip competent, does not have incurably ill ofher individual inviolable human she seeks when in dying physician. Dignity aid from her is a component fundamental humanness; species; it is intrinsic to our it be respected must throughout life; and it must be when destiny honored one’s inevitable is death from an incurable illness. I specially concur. RICE,
JUSTICE dissenting. prohibition against homicide-intentionally causing the death another-protеcts preserves life, human ultimate recognition dignity, society, human and is a foundation for modern has millennia past. foundation, as it been for upon Anglo- Based law, encompassing Montana, American law has prohibited enabling years. Glucksberg, of suicide for over 700 Wash. v. 521 U.S. (citations (1997) omitted). 711, 117 However, S. Ct. contradiction to these fundamental principles, Court concludes physician-assisted suicide public does violate Montana’s policy. doing so, badly the Court our misinterpreted has policy: assisting explicitly prohibited suicide has been and expressly past years. Montana law for the More than merely setting aside herein, the District order I would the judgment Court’s reverse entirely. *29 A analysis flaw that underlies the its Court’s failure to
270 intention in the assisted- the basic physician’s
distinguish between rendering treatment intention while physician’s case from the suicide herein, the intentions these two developed further cases. As in other very difference create the diametrically and opposed, are cases suicide Physician-assisted and noncriminal act. a criminal between to drug a with the intent lethal physician provides when a occurs death. patient, patient’s the the With cause, drug the is taken when to his or her actions cause care, the does intend palliative pain the death, patient’s intends to relieve but rather patient’s the care, palliative even providing reason suffering. For this arguably contributes to the the treatment in cases where charged under homicide death, requisite lacks mental state to be the (Kan. 1998) Naramore, App. v. 965 P.2d statutes. Kan. Life, Singer, Care at the End Gordon & Decisions and (quoting of -104, 163, 165 15,1995)); 45-5-102, -103, MCA (July see also Lancet §§ (2007). withholding or withdrawal A similar distinction arises the dying merely prolongs process, pursuant that the ofmedical treatment Act, Terminally 111Act. Under the the Montana naturally, may death to occur refuse treatment allow any liability, having no not administered death- physicians incur 50-9-103, -204, MCA. causing treatment. Sections of acts be defended on the basis a victim’s consent Criminal 45-2-211(1), act certain MCA. to the circumstances. Section However, against “it statute makes consent “ineffective” if resulting or policy permit the conduct harm.” 45- 2-211(2), MCA. The Court concludes from its review of Montana law incongruous physician’s “it that a would be conclude indirect contrary Because, public policy.” Opinion, public policy of the State of Montana is set generally, “the Inn, through its enactment ofstatutes” Duck Inc. Legislature Montana 523-24, University-Northern, Mont. 949 P.2d v. Mont. State (1997) (citations omitted), 1179, 1182 very I turn to the statutes which assisting address suicide. Aiding Statutory Soliciting on the Prohibition
Suicide death, agent conduct made him ‘If offender notwithstanding is criminal homicide the consent even offense the solicitations the victim.” ~ 45-5-105, Comments, Commission MCA. aiding originally prohibition Montana enacted on “[e]veryperson
soliciting providing statute in suicide *30 aids, deliberately encourages advises or another to commit suicide (1895). guilty of a felony.” Section Mont. Penal Code prohibition aiding on formally suicide has been the enacted policy of our state for succeeding years. the Under the 1895 enactment, the death or irrelevant, survival of the victim was as the only required crime that a deliberately aid, advise, defendant encourage another to commit Legislature suicide. The left the statute untouched for seventy years. over Legislature the revised the statute to read:
(1) A person purposely aids or solicits another to commit suicide, but such suicide does not occur commits the offense of aiding or soliciting suicide.
(2) A convicted of aiding the offense of soliciting a suicide shall imprisoned be in the prison any state for term not to (10) exceed ten years. (1973). 94-5-106,
Section RCM The Legislature provision codified this within the homicide statutes. The current version of the statute is the same version, as the 1973 except Legislature that the has increased potential the punishment by for the crime authorizing $50,000 a (2007). penalty. 45-5-105(2), MCA Under the wording of the current version of statute, the a
person may be prosecuted for aiding or soliciting another to commit only suicide if the victim survives. The purpose change of this of the statutory language from pre-1973 the version explained by was the Criminal Code Commission that proposed it. dies, When the victim act is prosecuted to be as a homicide. “If the conduct of the offender made him agent death, the offense is criminal homicide ...” Cоmments, 45-5-105, added). Commission § MCA (emphasis Commission Comments then direct attention to the other crimes codified within the same homicide homicide, section-deliberate mitigated homicide, deliberate negligent homicide. Commission Comments, 45-5-105, MCA). MCA (citing 45-5-102, -103, § -104, §§ Like the other statutes, homicide the statute prohibiting the aiding or soliciting of suicide makes the felony. offense a 45-5-102(2), Sections -103(4), -104(3), -105(2), justification MCA. The for felony designation offense, ofthe despite the fact survived, the victim has was provided by the Commission: “The rationale behind the felony sentence for the substantive aiding offense of or soliciting suicide is that the act typifies very regard low human Comments, Commission § life.” added). 45-5-105, MCA (emphasis This clear statement of the State’s policy protect human life steadfastly avoided the Court in its
analysis. law, who assist in a suicide Thus, physicians Montana under patient prosecution irrespective ofwhether subject are to criminal survives, may be If the patient or dies. survives 45-5-105, soliciting MCA. aiding or suicide. Section prosecuted under dies, the under physician may prosecuted If Comments, 45-5-105, (citing MCA §§ homicide Commission § statutes. MCA). 45-5-102, -103, -104, to the very it is clear consent also Importantly, under these consequence is of no whatsoever
physician’s efforts
acting
explain
statutes. The Commission Comments
even
agency
death
not raise “consent or
the solicitations
Commission
culpability.
as a defense to criminal
the victim”
added).
45-5-105,
This
has
Comments,
(emphasis
principle
MCA
Mich,
country:
courts around
likewise been stated
restated
(Mich.
2001) (“consent
Kevorkian,
App.
v.
639 N.W.2d
*31
Ind.,
murder”);
625
recognized
Gentry
are not
defenses to
v.
euthanasia
(Ind.
1993) (“consent
1268, 1273
defense
App. 1st Dist.
is not a
N.E.2d
(citation
death”)
omitted);
causing
human being’s
to conduct
another
(Pa.
1959) (“The
895,
Root,
Super.
A.2d
Pa. v.
156
900
Commonwealth
endanger
protecting
against
is interested in
its citizens
acts which
protect
life,
law is to
human
even the
policy
their lives. The
the
life
of
destroy
prove
wishes
his own. To
that the victim
person who
to
added.)),
(Emphasis
to
to
wanted
die would
no
murder.”
defense
(Pa. 1961).
Root,
grounds, Pa. v.
274 However, is further evidence. there suicide.2 physician-assisted Terminally 111Act Rights The Montana of Rights of the the Montana Legislature enacted (Montana Act) substantially adopting the Terminally III Act Act). (Uniform 1-16, Ch. Act Secs. Terminally 111 Rights of the Uniform (codified MCA). Prefatory -206, The Note to at 50-9-101 §§ L. scope of the Act is narrow. Its explains “[t]he that in the Uniform Act ,...”3 merely life-prolonging is limited to treatment impact (2001) 311, 312 (1989), Terminally 9C U.L.A. Rights 111Act Uniform of added). by the Montana Act provided form Declaration (emphasis of supports scope language, further patients, plain its in the Uniform Act: articulated purposes that, condition If I have an incurable or irreversible should treatment, will, life-sustaining administration of without the attending or advanced my attending physician opinion nurse, relatively my death registered cause within practice regarding longer time I am no able to make decisions short treatment, my I my attending physician direct medical nurse, attending registered pursuant to the practice advance Terminally Act, Montana to withhold or Rights process only prolongs withdraw and is treatment pain. necessary my not or to alleviate comfort added). And, as the 50-9-103(2), MCA Court (emphasis explain Act that it not acknowledges, the Montana is careful “does condone, authorize, approve mercy killing euthanasia.” Section 50-9-205(7), MCA. considering ambiguity approach disconcerting The Court’s is also when assistants, bring physicians. Physician Opinion are will for those who nurse- they friends, nurses, family qualify physicians, practitioners, do not but will all undoubtedly varying degrees process physician-assisted be in the suicide. involved
Yet, reasoning physician. public policy upon is to leave the role of a The net the Court’s based decision, not, “non-physicians” with the result of the whether intended or premised physician-based policy apply question upon will of whether the decision well. them as quoted passage, entirety, its is as follows: merely scope impact limited that is The life-prolonging, irreversible, the Act is narrow. Its to treatment patients and to whose terminal condition is incurable and occur, participate will soon and who are unable to whose death Beyond scope, any the Act intended to affect treatment its narrow is not decisions. existing rights responsibilities persons to medical treatment make merely provides ways terminally-ill alternative in which a decisions. The Act life-sustaining legally regarding procedures can desires use of implemented. Terminally (1989), 111Act U.L.A. at 9C Uniform
275 permitting in the are those operative words Montana Act life-sustaining to “withhold” “withdraw” treatment. See patient a and 50-9-103(2), -106, -204, -205, Largely self-evident, to MCA. §§ granting, giving, means “to desist or refrain from “withhold” Dictionary Webster’s the allowing.” English Third New International of 1971). ed., 2627 C. Merriam Language (Philip Gove G. & Co. Babcock Similarly, (something away “withdraw” is defined as “to take back or Dictionary or possessed).” bestowed Third New International Webster’s English Language incorporates the at 2626. Neither the word of affirmatively issuing drug Rather, of a to concept life-ending patient. a of, language permits only taking the plain away refraining from merely certain medical giving, prolongs treatment-that which 50-9-102(9), -103(2), -106, -204, -205, dying process. Sections MCA. Although the Court reasons that because the Montana Act permits withholding prolonging or withdrawal of treatment incongruous “it dying process, physician’s would be to conclude that a contrary aid in dying public indirect to policy,” opposite is true: incongruous it legal to conclude there is no distinction between the withdrawal of medical of life-prolonging provision treatment life-ending clearly treatment. distinction recognized by This statutes, above, of our wording e.g. discussed the courts. See Quill, 793, 800, 808, 2293, 2297-98, Vacco v. 521 U.S. 117 S. Ct. (1997) (distinguishing physician-assisted between suicide and refusal equal medical treatment does not violate protection); compare Glucksberg, 705-06, 117 521 U.S. at S. at (holding Ct. there is no suicide) physician-assisted constitutional with Cruzan v. Mo. Health, (1990) 261, 277-79, Dept. 497 U.S. 110 S. Ct. 2851-52 (assuming a constitutional for competent person to refuse treatment). unwanted medical To further the Legislature’s policy preference illustrate
respecting person’s right treatment, a to refuse medical Montana (CPR). person forego allows a cardiopulmonary resuscitation -107, Sections 50-10-101 to MCA. To the a patient extent refuses the CPR, receipt physicians must either conducting refrain from CPR or the transfer into the care of a will followthe do protocol. 50-10-103(2), resuscitate MCA.As with the Terminally Act, treatment, a refuse but the tenor provides support the statute no for physicians shifting from idle of natural onlookers death active in their participants patients’ suicides. Thus, the accommodating law a desire to die not, posits, Court treatment does as the by withholding
natural causes by physician action in favor of deliberate support policy death. premature, patient’s pre-natural, cause The 1972 Montana Constitution against the assistance of longstanding public policy Montana’s fill suicide supports It 1972 Constitution. adoption was continued determination, nor the District public policy Court’s neither the *34 constitutionally based decision. Court’s concerning “right to die” is included within 112 No statement ¶ is neither accidental Rights. Declaration This absence Constitution’s of to note that regard, important In this it is product ignorance. nor the of without considered adopted rejected was proposal “[n]o Convention, Rights Bill of deliberation.” Montana Constitutional 22, 1972, February p. 618. Proposal, Committee receiving careful deliberation proposals One of the such was Convention, Minutes ofthe 103. Montana Constitutional Proposal No. Committee, February 9,1972, 2. Submitted to the Bill Rights p. Bill of Kelleher, No. 103 Rights Delegate Proposal Robert L. of Committee right included to die within the Constitution’s would have Convention, Rights. Delegate Declaration of Montana Constitutional 2, 1972, February p. 223. Proposals, Delegate proposal provided, pertinent part, Kelleher’s “The to alive
incurably right kept by extraordinary ill have the Convention, Delegate Proposals, means.” Constitutional Montana February 2,1972, Delegate Kelleher testified before Bill of p. Committee, “that Rights person with an incurable disease should the right have to choose his own death.” Montana Constitutional Convention, Committee, February 12, Minutes of Bill of Rights 1972, proposal 5. Alternatives to covered the p. offered Kelleher’s “right spectrum broad of to die” scenarios. Joe Roberts testified on the day Kelleher, Delegate advocating language: same for broader right legislature “There to shall appropriate shall be a die. make Convention, provisions therefore.” Montana Constitutional Minutes of Committee, 12, 1972, 6; Rights February p. the Bill of Montana Convention, Testimony the Bill Constitutional of Joe Roberts Before Die, 12,1972, Rights Concerning Right February to of Committee “very testimony” of p. poignant 4. Mr. Roberts referenced the witness “personal her Joyce agonizing Franks and encounter with death of Convention, Testimony of her father.” Montana Constitutional Joe Right Rights Concerning Roberts Before the Bill of Committee to Die, 12,1972, testimony described the February p. 1. Ms. Franks’ had 86-year-old “give death of her father and his wish that a doctor him something put sleep right him to then.” Montana Constitutional Convention, Bill Testimony Joyce Rights M. Franks Before the of 1972, Committee, the Bill February p. 5A. Ms. Franks stated to Committee, Rights working every “What I am for is that shall person right determine, accident, have the barring dying. manner ofhis then, legal, And I am make it if he advocating twin desires death, this type quick easy for a to receive a medicated Convention, death Testimony somehow.” Montana Constitutional Joyce Committee, M. Bill Rights February Franks Before thе 1972, p. urged 1. Ms. Franks therefore of an amendment adoption stating: “Every citizen shall be allowed to choose the manner in which Convention, Testimony Joyce he dies.” Montana Constitutional M. Committee, 3,1972, 2; Rights February p. Franks Before the Bill of see Johnson, Right Montana, also Charles S. to Die Resurfaces 2009) Independent (Aug. 23, Record FI (describing Constitutional die). rejection Convention’s consideration and of a However, rejected the Bill of Committee Kelleher’s proposal entirety in its rejected also all of the alternatives which had offered in conjunction proposal been with Kelleher’s to incorporate a “right any to die” of kind within the new Constitution. See Montana Convention, Constitutional Rights Committee, Minutes of the Bill of February 1972, p. 2. *35 Nor provisions Constitution, were other of the such as the Dignity
Individual and the Right Privacy provisions, drafted to a right include to die. The adopted Constitutional Convention Dignity Individual Section for express purpose providing equal protection prohibiting Rights discrimination. The Bill of Committee proposed Dignity the Individual Section “with the intent of providing a Constitutional impetus for the eradication of public and private race, color, sex, culture, discriminations on origin based social condition, or political religious or ideas.” Montana Constitutional Convention, Bill Rights Proposal, February 22,1972, Committee p. added). (emphasis During 628 provision, the floor debate on the Delegate Otto Habedank expressed concern that he would required people “to associate with that I choose not to associate with.” Montana Convention, 7, 1972, Constitutional Transcript, p. Verbatim March Dahood, Delegate 1643. Wade J. Rights Chairman of the Bill of Committee, responded Delegate by stating, Habedank’s concern “There is intent particular anything no within this section to do other apparent than to remove the type object of discrimination that all ofus 278 association to actual practices, to rental employment, respect
to with
quasi-
somewhat
that tend to be
matters
public
that are
in matters
Convention,
Transcript,
Verbatim
Constitutional
Montana
public.”
consistent
statement was
1972,
Delegate Dahood’s
7,
p. 1643.
March
Proposal,
Committee
Rights
the Bill of
intent of
expressed
II,
4,
entirety of Article
was,
of the
in consideration
which
eradication of
for the
impetus
“a Constitutional
provide
Convention,
Constitutional
....” See Montana
discriminations
private
628;
22,1972, p. Montana
February
Proposal,
Committee
Rights
Bill of
1972,
7,
p.
Convention,
Transcript, March
Verbatim
Constitutional
suggests even
explanations
discussions or
Nothing within these
lurking rights that
vague,
contained
dignity
that the
clause
thought
delegates or the
beyond what the
someday manifest themselves
might
believed, and
the Constitution
approved
citizens of Montana
law, here,
against
assisted suicide.
policy
long-established
overturn
aspirational
an
provides
therefore
dignity
reference to
legal
substantive
already
well-established
introduction to
dignity: equal
to achieve
operative
vehicles
principles providing
Likewise, the
upon
and the
discrimination.4
prohibition
protection
assisted suicide.
policy against
alter the State’s
privacy
did not
language
provision
of the
nothing within either the
There is
any
e.g.
See
would reflect
such intention.
proceedings
convention
which
Convention,
March
Transcript,
Verbatim
Montana Constitutional
Convention,
Rights
Bill of
1680-82;
Constitutional
pp.
Montana
reasons,
22, 1972,
February
pp. 632-33. For such
Proposal,
Committee
a constitutional
interpreted
one court of last resort has
McIver,
suicide. Kirscher v.
697
physician-assisted
to include
privacy
(Fla.
Alaska,
1997);
31 P.3d
97, 100,
Sampson
v.
So. 2d
enlightening.
origins
dignity
At
clause are
foreign
The historical
constitutions,
Convention, delegates
the 1949 West
reviewed two
Constitutional
Germany
Puerto Rico Constitution. Montana Constitutional
Constitution and the 1951
Rights
Commission,
10: Bill
Constitutional Convention Studies No.
Convention
Convention,
Rights
Proposal,
(1972);
Bill of
Committee
Montana Constitutional
two,
Constitution,
February 22, 1972, p.
the eldest of the
628. The West German
provided,
be inviolable.” Montana Constitutional Convention
“The
of man shall
(citing
Commission,
10: Bill
at 242
Constitutional Convention Studies No.
Const,
I).
provision,
Constitution contains the identical
art. The Montana
West German
being”
except
gender-neutral
adopted
of “man.” The West German
“human
instead
word-for-word
for the use of
developed
respоnse
to the Nazi
Constitution was
*36
treatment,
killing
people.
unequal
persecution,
See
regime’s
e.g. Gregory
and ultimate
ofthe Jewish
36 Harv. Intl. L.J.
Democracies,
Georg Nolte,
H.
&
Intolerant
Fox
Moon, Immortality,
(1995); George Annas,
Millennial
and other
J.
The Man on
Emory
Engineering,
Myths:
Prospects
L.J.
and Perils Human Genetic
(2000).
758-59
(Alaska 2001);
705-06,
change. Controlling destiny, their own Montanans decide to be, doubt, change public policy the State’s after what would no fact, already spirited public regard debate. In efforts have (Jan. 2008) LC1818, e.g. Leg., Reg. started. See Bill Draft 61st Sess. (The “Montana Death Act” had the proposed Dignity stated purpose “allowing terminally patient request medication to life.”). end the This Court should allow the debate to continue, and allow the their citizens this State control own destiny on the issue. public policy changed by Until the the democratic process, recognized
it should be and enforced It a public policy courts. regards aiding typifying very which of suicide as “a regard low for life,” Comments, 45-5-105, MCA, human Commission which Instead, expressly prohibits rejects it. the Court the State’s longstanding policy. ignores intent, statutes, It expressed parses churns reasons to policy avoid the clear of the State and reach an against public policy untenable conclusion: that it is a physician patient assist a suicide if the happens taking to live after medication; very act, but that the very intent, same with the same against public view, if the policy my dies. In the Court’s support, reason, conclusion is without clear without and without moral force. I would reverse. HEGEL,
HON. District Judge, sitting place Court of CHIEF McGRATH, joins JUSTICE in the dissenting Opinion of JUSTICE RICE.