Assisted suicide: the real slippery slope

A court case in Montana suggests that once you give the ‘right to die’ to terminally ill people, others will want it, too.

Kevin Yuill

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The arguments happening over the right to a medically assisted suicide in Montana indicate that if there is a ‘slippery slope’ – that misused and overworked metaphor repeated in the debate on assisted suicide – it is from the limited rights of those with terminal illnesses towards allowing all who feel they are suffering the right to a medically assisted suicide.

Both sides of the debate over assisted suicide will be watching the case of Baxter v Montana carefully as it is considered in Montana’s Supreme Court. Starting last Wednesday (2 September), the court heard arguments about whether Montana’s state constitution protected the right to an assisted death. Should the plaintiffs be successful, Montana will be the third American state, after Oregon and Washington, to allow assisted suicide. The difference, however, is that Oregon and Washington voters can rescind the earlier referendum allowing assisted suicide in a new referendum; should the Supreme Court rule in favour of Baxter, assisted suicide will become a permanent right in Montana.

Robert Baxter, a 76-year-old retired truck driver from Billings, Montana, launched a claim with several others that he had the right to physician-assisted suicide under the Montana Constitution. Mr Baxter died on 8 December 2008, just hours after a state district judge in Helena ruled that he had the right to have a physician help him die. The state of Montana immediately launched an appeal, ensuring that the judge’s ruling has yet to come into force.

The discussion centred upon Montana’s relatively recently drafted Constitution. Written in 1972, at the height of a privacy-rights movement, the Constitution declared that ‘[t]he dignity of the human being is inviolable’. The Montana Supreme Court, with its seven justices, will have the last word; the US Supreme Court will not rule on State Constitutions. Those in court argued over whether the guarantee of dignity included dignity in dying.

In some ways, what happens in this state will have little impact beyond its borders. Just one million people live in this huge territory, which is nearly one-and-a-half times the size of the British Isles. But the implications of the outcome of this case, of course, do not end with Montana. If successful, which both sides admit looks likely, the plea for a right to a death with dignity will make the restrictions contained in the Oregon, Washington and the proposed British legislation – that the recipient of a physician-assisted suicide must suffer from a terminal illness and have less than six months to live – irrelevant.

This was evident even in the careful delineations made by Mark Connell, co-counsel for the plaintiffs/respondents. He asked: ‘If privacy and dignity exist as enforceable rights under the Montana Constitution in any context… surely they apply in this situation, involving terminally ill patients confronting deeply personal decisions as death approaches.’ But if the court finds in favour of this case, how long will it be before a Montana resident with a terrible disability but no terminal illness sues along the same lines, arguing that it is a ‘deeply private’ decision to alleviate suffering?

The presiding justices, when cross-examining Anthony Johnstone – the state solicitor at the Montana attorney general’s office who argued that legislature, not the Constitution, should decide on assisted suicide – asked: ‘Who’s supposed to determine a person’s quality of life? That person who is living the life, or the state of Montana? Isn’t that an awfully paternalistic attitude you’re taking?’ Kathryn Tucker, press officer for Compassion and Choices, an assisted-suicide advocate group with tens of thousands of members, also argued along the lines of autonomy: ‘It’s about empowering patients and giving them the right to decide when they have suffered enough.’ But why draw the fairly random line between patients with less than six months to live and all others? If the patient has the right to decide, why would, or should, the state decide who is suffering and who is not?

Assisted-suicide advocates want it both ways. Most wish to limit the right to die to those with less than six months to live but argue on the basis of ‘autonomy’. The logic of autonomy demands, however, that the determination of how much suffering is taking place lies with the individual.

This would not be just a small step, as Connell argued, beyond the already existing double effect, meaning that drugs administered to alleviate pain have the effect of killing the patient. It would instead mean that the state may well be forced to honor all requests for death from individuals.

It is likely that the numbers making these requests – even in this state with a suicide rate significantly higher than the US average – would be low, and few doctors would agree to facilitate these requests. But, as suggested by the evidence from the Dignitas clinic in Switzerland, where all requests for suicide are regarded as equal, Montana will be taking a step towards legitimating all suicides.

Such a situation speaks volumes about the crisis of authority affecting government, where the state no longer feels confident enough to take a stand against suicide, to proclaim to its citizens that life is preferable to death. But, rather than the expression of confident, empowered individuals reveling in and enjoying their autonomy, the quest for assisted suicide indicates the perceived inability to do it themselves, to cope with the suffering that life inevitably brings. This is not the outlook of the very few who face in the immediate future a painful and distressing end; this is a myopic, solipsistic and somewhat pathetic need on the part of people with many years of life for a guarantee from the state that they will not suffer.

It can only be hoped that the Montana Supreme Court has some grasp of the terrain that it is treading on, and that it makes the right decision.

Kevin Yuill teaches American studies at the University of Sunderland in England, and is author of Richard Nixon and the Rise of Affirmative Action. Read a review of the book here, or buy it from Amazon(UK) or Amazon(USA).

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