Friday, January 8, 2010

Not Dead Yet comments on Montana decision

Stephen Drake from Not Dead Yet has commented on the Montana assisted suicide decision from a non-lawyer perspective.
Link to the blog comment: http://notdeadyetnewscommentary.blogspot.com/2010/01/montana-supreme-court-decision-non.html

Drake states:
Nevertheless, there are a few things that I can say about the court's reasoning. According to the court, Montana has a fairly broad application of the "consent" defense in questions of criminal activity. Additionally, they totally dismantle any distinction between withholding/withdrawal of treatment and the giving of lethal medication. (the dissent points out that the Supreme Court cases on assisted suicide in 1997 reaffirmed a significant distinction between omission and comission).

In doing these things, the court was able to ignore the existing statutes against assisting suicides, at least as it pertains to prescriptions of lethal medications given to patients by their doctors. (For other reasons, I think they've also left the door open to a "consent" defense for elderly men who kill ailing wives - a growing phenomenon.)

The most disturbing part of the opinion is the "specially concurring" opinion by Justice James C. Nelson. Nelson declares openly that he sees a constitutional right for assisted suicide, so that we all know at least one vote in any future challenges. But he doesn't stop there. Nelson writes more like an unusually eloquent member of the Final Exit Network (Previous blog comment on the Final Exit Network: http://notdeadyetnewscommentary.blogspot.com/search/label/final%20exit%20network than a Supreme Court Justice:
Thus noted, the Patients and the class of individuals they represent are persons who suffer from an illness or disease, who cannot be cured of their illness or disease by and reasonably available medical treatment, who therefore expect death within a relatively short period of time, and who demand the right to preserve their personal autonomy and their individual dignity in facing this destiny.

In choosing this language, I purposely eschew bright-line tests or rigid timeframes
.
Justice Jim Rice wrote the dissent, which refutes most of the arguments in the Opinion itself - including the negation of long-standing statutory prohibitions on aiding suicides. Perhaps most importantly, though, Rice thoroughly discusses the intent of elements of the Montana Constitution. Among other things, he points out the significance of a "right to die" proposal being discussed and rejected for inclusion in the Montana constitution. He argues it is hard to read an intent for the practice to be legalized when one knows the subject was discussed and rejected.

I'll be writing more later. There's a lot of material in this decision and I still haven't wrapped my head around it all. For the most part, lawyers and judges are really really painful to read.

Needless to say, when once in awhile, someone says I "think like a lawyer" I guess that's OK. Just never accuse me of writing like one. --Stephen Drake

After speaking to Stephen Drake I must say that I share his concern that any attempt to close the door to assisted suicide in Montana will be legally challenged by Compassion & Choices. We will need to carefully draft an effective legislative response to the Montana decision.

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