Montana back in the news with an interesting "States' Rights" issue: Physician-assisted suicide

At the end of April I covered Montana's 10th Amendment challenge to the Federal government over firearms produced within the State.

Now Montana comes into national focus again, as the oral arguments have today been made in Baxter v. Montana, first introduced to me by Thaddeus Pope's Medical Futility and summarized here at Compassion and Choices:

Robert Baxter was by all accounts a tough man. Even in the end, last year, as lymphocytic leukemia was killing him, Mr. Baxter, a 76 year-old retired truck driver from Billings, Mont., fought on. But by then he was struggling not for life, but for the right to die with help from his doctor.

Now, in death, Mr. Baxter is at the center of a right-to-die debate that could make Montana the first state in the country to declare that medical aid in dying is a protected right under a state constitution.

The state’s highest court on Wednesday will take up Mr. Baxter’s claim that a doctor’s refusal to help him die violated his rights under Montana’s Constitution — and lawyers on both sides say the chances are good that he will prevail.

Here is a brief but very interesting 2.5 snippet of the oral arguments by Baxter's attorney:



How does this become a potential States' Rights issue? If we assume that there is a good chance that the Montana Supremes uphold the original Baxter decision, this will potentially put the State on a collison course with a 1997 decision by the US Supreme Court that terminally ill patients do not have a constitutional right to suicide. Under the Bush administration I would have expected to see the Department of Justice filing against Montana within hours of such a decision.

I don't think the Obama administration, however, will move that fast if at all against a pro-assisted-suicide decision, leaving the onus on an individual or hospital to bring the case forward into the Federal court system. It is--after all--a difficult position for the Obama DOJ, because the evidence suggests that the President himself might well support that kind of decision. But to argue in favor of it, the DOJ would have to argue that one State could, by granting more rights to its citizens than does the US Constitution, tie the hands of Federal authorities.

Conceivably, it is something of the ultimate issue of state v federal power, even though I doubt it will go that far.

Meanwhile, there is the issue in the case: physician-assisted suicide. What I do not like about Baxter's arguments is that they seem to interpret the patients' right to die as equaling the right to force their physician into assisting with the suicide.

As a Libertarian and a believer in the idea that your body is your own property I have no trouble with your right to die, but I do have a serious problem if your right is morphed into a power to compel a physician to assist you. If he or she is willing to assist you, fine. But the physician whose allegiance to the Hippocratic Oath or even religious principles should not be forced to assist in a suicide, which is what the Baxter decision could portend.

After all, as the LP Platform says, The right to trade includes the right not to trade — for any reasons whatsoever.

[With apoligies to folks who have a small enough understanding of libertarianism to believe that this sentence was written to promote state-sponsored discrimination; just because you don't get it is no reason for the rest of us to stop using it.]