Advocates Want Montana Courts to Legalize Assisted Suicide by Judicial Fiat

Bioethics   |   Steven Ertelt   |   Sep 19, 2008   |   9:00AM   |   WASHINGTON, DC

Advocates Want Montana Courts to Legalize Assisted Suicide by Judicial Fiat

by Steven Ertelt Editor
September 19
, 2008

Helena, MT ( — Not able to get their way in the legislatures or voting booths in most states, assisted suicide advocates are increasingly turning to the courts to push their agenda. Montana is becoming the latest battleground and language in its state constitution calling for a right to privacy could help their cause.

Assisted suicide backers filed two lawsuits last October on behalf of two terminally ill patients — Robert Baxter of Billings and Steven Stoelb of Livingston — who both want the right to get a doctor to help them kill themselves.

The patients and four doctors supporting it are headed to the Montana First Judicial Court in Helena on October 10 and they are seeking a declaratory judgment and injunctive relief to prevent them from being prosecuted should they move ahead with the suicides.

They have based their lawsuit on the right to privacy in the Montana Constitution. Originally meant as a means of protecting citizens from governmental snooping, state courts, including the Montana Supreme Court, have misused the clause to create an unlimited right to abortion. Pro-life advocates fear the same problem will occur vis-a-vis assisted suicide.

Wesley J. Smith, a leading attorney who specializes in bioethics issues, is monitoring the case.

"Assisted suicide advocates are very directed," he said in an email to

"Kathryn Tucker, attorney for Compassion and Choices (formerly the Hemlock Society) tried and failed to obtain a U.S Supreme Court ruling creating a constitutional right to assisted suicide," he explained.

"That failed 9-0. Then, she tried in Florida, having a state constitutional right declared in the courts. That failed. Then, she tried in Alaska. That failed. Now, it is Montana with a court case coming next month," he said.

Smith said he thinks the state’s high court opened up the possibility of allowing assisted suicide in its 1999 decision creating the unlimited abortion right, but he says he thinks the justices should defer to the state legislature.

"It should be hard for a court to throw out a law passed by the legislature of the kind that has never been found in any court in any litigation to be unconstitutional," Smith says. "Still, the case is certainly no sure thing–either way. But I do know it is likely to be a legal fight to the finish that could eventually grab the attention of the entire world."

Oregon is the only state in the nation to have legalized assisted suicide and the practice is also legal in the Netherlands, Belgium, and Switzerland.

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