Justice WILLIAM LEAPHART
Filed December 31, 2009
In late December, Montana became the third state (behind Washington and Oregon) to permit physician assisted suicide to terminally ill patients. The State Supreme Court in Baxter et al. v. State of Montana was considering an appeal of a ruling from a lower district court dated December 2008 finding in Montana’s Constitution a “right” of the terminally ill to kill themselves with the assistance of physicians (implying that the doctors assisting them were to be shielded from prosecution under the state’s homicide laws). Interestingly, the court declined to rule on the question of the constitutionality of assisted suicide claiming to follow the judicial principle that courts should refrain from deciding cases at the level of the Constitution when an issue could be resolved by appeal to existing law. Having said this, Montana’s Supreme Court ruled that existing Montana law permits doctors without fear of prosecution to prescribe medications to terminally ill patients who wish to kill themselves.
The court’s tortured “reasoning,” as I will illustrate, is tendentious, shallow, and shot through with errors. It departs so far from commonly accepted ways of moral reasoning (which are not the province only of educated moral theologians, but available rationally to all thinking persons) that not only it but the system that tolerates it deserve criticism. Judges should not be able to engage in irrational textual or other argument just because they’re judges. Even less should they be permitted to introduce sweeping cultural changes through faulty reasoning, as the Montana High Court does in Baxter, et al. v. State of Montana.
The court begins by saying that since suicide is not a crime in Montana, the question that needs to be resolved is whether a physician can be prosecuted for criminal behavior for assisting patients in killing themselves. Turning to the concept of “consent,” it asks two questions: first, if patients consent to their doctor’s aid in dying, is the doctor guilty of homicide? In other words, does patient consent somehow shield physicians from liability? Second, is patient consent rendered ineffective because it authorizes behavior that “is against public policy”? In other words, consent or no consent is physician assisted suicide contrary to existing Montana law?
To resolve the first question, the court looks at assault cases where the consent of one party to a set of behaviors is rendered null because another party “directly commits blatantly aggressive, peace-breaching acts” against him. For example, if I consent to a brawl and you beat me to smithereens (by the way, what are smithereens?), my consent to the brawl does not shield you from being prosecuted for my assault.
The quoted clause contains three conditions each of which Justice Leaphart, writing for the majority, considers in turn: the harm-causing act must be “direct,” “blatantly aggressive” and “peace-breaching.” To the question of whether the harm is “direct,” the justice ludicrously asserts: “A physician who aids a terminally ill patient in dying is not directly involved in the final decision or the final act.” By “directly” the justice means that the doctor does not himself administer the lethal dosage. Leaphart believes that the external behavior of the doctor, prescinding from what the doctor means to bring about by his behavior, is sufficient for settling the question of whether an act is “direct” in a morally (and hence legally) relevant sense. But “direct” in the assault statute means intentional, not ‘caused by a piece of proximate external behavior.’ If you punch my lights out, it makes all the difference in the world—ethically and therefore legally—whether you intended to do so or not. If the behavior was beyond your control, say you were in the throws of an involuntary convulsive fit, then the fit causes you to do it. Morally speaking, you don’t do it, and hence you are not guilty of (responsible for) the behavior and its results (although you may rightly be held responsible for not taking the medication that helps control your fits). So my intention (i.e., my formulated plan of action including both my ends and means) determines what I do.
It follows that any doctor who prescribes a lethal dosage to a dying patient asking for the drug so he can kill himself, does so in order to facilitate the patient’s intended purpose—which is suicide. In such an instance, the doctor necessarily intends the patient to use the drug for the reasons for which he’s asked for it and for which it’s been prescribed. In morally philosophy we say the doctor “formally cooperates” in the patient’s suicide, which means he shares the patient’s suicidal intention—he intends the patient’s death. Ethically speaking, therefore, the doctor is one of the “direct” causes of the patient’s death. The judge’s ignorance of this basic element of moral reasoning conveniently allows him to conclude effectively that the doctor is not involved in a morally and legally significant way in the patient’s self-killing.
As to whether the doctor’s act is blatantly aggressive, Leaphart benignly asserts: “Each stage of the physician-patient interaction is private, civil, and compassionate. The physician and terminally ill patient work together to create a means by which the patient can be in control of his own mortality.” A rosy picture indeed. Unfortunately, the literature on assisted suicide repeatedly indicates that patients who ask for death are usually suffering from severe grief, depression and anxiety precipitated by inadequate control of symptoms, breakdown in relationships with loved-ones, and losses suffered because of their condition. The solution? Work to resolve these problems, don’t resort to lethal alternatives.
As to whether the doctor’s act is “peace-breaching,” the judge asserts without argument or adducing evidence: “The patient’s…decision whether to take the medicine does not breach public peace or endanger others.” Case closed … it would seem. But isn’t there a legitimate argument to be made that the peace and stability of the community is threatened when the inhibitions embodied in the law against killing innocent human beings are eroded? Questions of this sort are not even entertained by Judge Leaphart.
The court then asks whether a physician’s aid in dying violates Montana’s existing Homicide Law? Leaphart argues that it does not. To break the law against homicide, a person must “cause” the death of another. But a doctor who prescribes medicine to others so that they can kill themselves, does not “cause” their death, but merely “makes medication available.” The patient causes his or her own death. Since suicide in Montana is not illegal, no law has been broken. I have already shown the speciousness of this reasoning. The doctor does in fact cause the patient’s death by intentionally prescribing a lethal dosage at the request of the patient who intends to use it to kill himself. If my spouse asks me to help her kill herself and I give her my pistol and say, “Here you go, honey, fire away,” and she does, is there any doubt as to whether I am morally an accomplice—an essential cause—in her killing?
Finally, Baxter asks whether a physician aiding a suicide breaks the Rights of the Terminally Ill Act (TIA). Again, the court argues no. Its convoluted reasoning goes like this.
The TIA permits doctors, indeed binds them under law, to follow their patients’ express requests to withhold or withdraw life-sustaining treatment. In this way, it confers on the terminally ill a right to have their end-of-life decisions implemented by the medical community. And the statute explicitly “shields physicians from liability” for implementing directives to withhold life-sustaining treatments (¶29-30).
Now, in order to implement an end-of-life decision a doctor must perform certain “direct acts” (e.g., unplugging a machine, removing a ventilator). It follows, Leaphart asserts, that the TIA (the existing law) implicitly authorizes a doctor to commit direct acts which hasten death. But, the justice continues, prescribing lethal medications is merely “making the instrument of the ‘act’ available to the terminally ill patient.” The patient does the killing. Physician assistance in suicide therefore actually involves “a lesser physician involvement” in the patient’s killing than what the TIA explicitly permits, while shielding the doctor who commits it from legal penalties. If the former is not against the law, then the latter also is not against the law. (Grade for this reasoning? F ) Performing some act (“committing a direct act”) that unintentionally but foreseeably results in the death of another is very different—radically different morally speaking—from formally cooperating in the killing of another. State legislators that vote to raise the state speed limit from 55 to 65 (or to 75 as has been done in my state of Colorado) commit “direct acts” (i.e., the acts of legislating) that result in the deaths of other people. But this is very different from getting in their cars and intentionally running other people off the road to kill them or detaching their brake lines so they’ll careen off a bridge into the icy waters below. The doctor who stands by a patient’s bed, hands him a lethal dose of meds (or a pistol, for that matter), and says, “Okay, go ahead,” is a different kind of person from the doctor who consents to removing a ventilator from a patient for whom the ventilator no longer provides necessary care, or for whom it causes undue burdens. The first is rightly called a killer. Dress the epithet up with all the euphemizing adjectives you want – “compassionate,” “autonomy-respecting,” “progressive and open-minded”— the doctor is still a killer. Doctors who remove futile or excessively burdensome treatments knowing that their actions may hasten a patent’s death aim at their patient’s comfort, not their deaths. That this distinction escapes my nine-year old daughter Mary is understandable. That it entirely eludes a Supreme Court justice is outrageous.
The TIA further prohibits “for any purpose” calling the patient’s death a “suicide or homicide” (¶27). Leaphart asserts that the reason the legislature included this exclusion in the TIA was to “ensure…that insurance companies cannot punish a terminally ill patient and his family for the patient’s choice to die.” Bosh. A much more plausible reason was that the legislature meant only to sanction an act of removal that indirectly brings about death and not the type of intentionally killing entailed in suicide and other forms of homicide—which, as I’ve shown, include the type of act a doctor performs in assisting in a patient’s self-killing. Medical ethics since its origin in this country has rightly distinguished between intentional and unintentional killing in the field of medicine. Until recently it has unanimously excluded as immoral acts by which doctors intentionally kill or formally cooperate in the killing of their patients—for whatever reasons; while holding that acts that hasten death but don’t intend it can be legitimate if there is a iusta causa (justifying reason) for tolerating this serious side-effect. The two traditional justifying reasons for forgoing life-sustaining treatments are because the treatment is either futile or excessively burdensome. If either is the case, a patient justifiably foregoes the treatment and accepts the foreseeable consequence that his or her death may be hastened. Although, it’s quite true that the intention moving some patients to forego life-sustaining treatments may be so that they will die (that is, they have a suicidal intent for what they do), their intent is contrary to what the law means to sanction. The very reasoning meant to exclude physician assisted killing is distorted by Baxter as meaning to embrace it.
The Montana Supreme Court confidently concludes: “We find nothing in Montana Supreme Court precedent or Montana statutes [laws] indicating that physician aid in dying is against public policy” (¶49). Since there is clear ground in both the state’s homicide statute and the TIA for concluding that a doctor who formally cooperates in a patient’s self-killing breaks the law, this statement leads me to believe that the Justices decided first that doctor-assisted suicide was okay and then constructed their argument from that conclusion. Judicial activism is alive and well in Montana.
(c) 2010 Culture of Life Foundation. Reproduction granted with attribution required.