This Blog considers assisted suicide/euthanasia, bioethics, human cloning, biotechnology, radical environmentalism, and the dangers of animal rights/liberation. My views expressed here, as in my books and other writings, reflect my understanding that the philosophy of human exceptionalism is the bedrock of universal human rights. Or, to put it another way: human life matters. (The opinions expressed here are my own and not necessarily those of any organization with which I am affiliated.)
You've read about it, now hear my analysis of the Montana court case creating a constitutional right to "die with dignity." As I state, it is the first time of which I am aware in which an advocacy slogan ("death with dignity") was elevated into a constitutional principle. Talk about overreaching! Check it out.
posted by Wesley J. Smith @ 5:56 PM
15 Comments
I am a Senior Fellow in Human Rights and Bioethics at the Discovery Institute and the author of 12 books, including A Rat Is A Pig Is A Dog Is A Boy, which is relevant to the issues considered by this blog.
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15 Comments:
Wesley,
This was NOT a matter of an advocacy slogan being elevated into a constitutional principle. The "dignity" concept is clearly articulated in Article II, Section 4 of the Montana Constitution, to which I now direct your attention:
"Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
Now there's how the term "dignity" worked its way into the equation. A Montana court has interpreted this provision of the state's constitution as not precluding assisted suicide if an individual's religious or political ideas permit it. The State of Montana believes that since the dignity of the individual is inviolable, that which mitigates against individual dignity (including dying what an individual may consider a dignified death) is impermissible.
This is not a matter of judges "legislating from the bench", or anything of that kind. A legitimate function of the judiciary in such matters is interpretation of the constitution. The courts didn't put the term "dignity" in there. The state of Montana did.
I am aware of that dignity clause and the ludicrous way the court used it. I will bet that the history of that clause not once mentioned killing oneself with the help of a doctor as what it meant to protect the dignity, intrinsic worth, etc. of the human being.
One of the most sophistic decisions, poorly thought out, and obviously outcome oriented decisions I have ever read. A pure disgrace.
Wesley, I didn't expect you to agree with the court; only to be a little more temperate in your denunciation of it. I've not argued that the legislative history of Section 4 ever dealt with assisted suicide. What I see is that a judge found that the language of Section 4 can be construed as NOT PROHIBITING assisted suicide, or as containing within it a right to dignity that encompasses assisted suicide. The rights that we possess as Americans are both expressed and implied. They need not be specifically enumerated. If you believe they are, you may find yourself having to disagree with Griswold v. Connecticut on the issue of birth control and privacy. Who knows, maybe you do.
Oh, for heaven's sake. This is clearly an anti-discrimination statute and I wonder in what year it was written and enacted. Even if there were a civil or political right to commit suicide the wording makes it clear that this is about whether someone or not someone can be discriminated against in exercising it on account of their race, color, sex, culture, social origin or condition, or political or religious ideas, not about whether committing suicide IS a civil or political right. Talk about reading things into a statute in order to justify an agenda, and talk about sophistry... And of course the State of Montana put the word "dignity" in there -- but not in connection with "death with dignity." If committing suicide IS a civil or political right, that's the end of it. But this ruling is about assisted suicide, and that's another whole scenario, involving whether a person has a right to have someone else help them, and whether that someone else can do it without committing a criminal act -- which, by the way, the ruling, at least as quoted here, does not address. This is half-baked thinking that conflates "death with dignity" with the concept of the individual's entitledment not to be discriminated against. No one is saying anything about people not being able to commit assisted suicide because of their race, gender, religious or political affiliation, etc. Moreover, if there is a religion that favors assisted suicide, this wording,in this statute would protect only to members of that religion, according to your attempt to torture the wording into what you want it to mean, HW;likewise if assisted suicide is a "political agenda" which in fact its proponents maintain it is not. There is no way to imply assisted suicide here; if it is already a civil right there is no need for a case and a ruling other than to confirm that, and that still leaves out the question of the "assister" participating. The issue already has been decided by the Supreme Court in Vacco v. Quill and it would be hard to imagine this one getting to the SC and the justices being able to keep a straight face; as for "implied" HW you argued the opposite re the Hippocratic Oath and "pessary." Anyway as for your question re "alternative" under that section, HW, I'd already offered all my ideas on that subject that are workable for the present and about what needs to change. People also need to become much more aware of the real current state of the technology and its advances. The Hastings Institute in Garrison, New York would be a good place to ask about that and about "alternative." I believe I mentioned somewhere in what I've already posted the "Will to Live," etc. I don't think anyone should sign any such document unless it's their own idea and it's in their very own words, and written by hand.
Wesley: I think your comment here pretty much covered the bases. I have to get back to working on the estate of someone who would still be alive if it weren't for all this madness.
Not that anything that happens in the USSC or elsewhere would surprise me during the Obama administration, or even given that this Montana decision was written, and purported to be based on that statute. I wonder how many people in Montana have read the statute and the decision, and seen what's wrong here.
And if committing suicide is a civil or political right this statute still has nothing to do with assisted suicide, or with suicide unless people who want to commit suicide all by themselves get discriminated against re their right to do it on the basis of their race, gender, religion, etc...
By the way are there laws about people being required to try to prevent or stop a suicide, report someone's known intention re it (not just psychiatrists, psychologists, counsellors, etc., but anybody) etc.?
lanthe: A couple of things: first, we're talking about a state constitution, not a statute. A constitution's language is far broader, and deals with generic issues, not specific ones such as "anti-discrimination."
Second, to answer your question, absent a "duty to act" there is no requirement to report suicidal intentions, just as there is no requirement that a passerby save a drowning person who's within arm's length of him.
BTW, since Wesley remains silent on the matter what's YOUR take on Griswold v. Connecticut? Do you think a state should be able to limit contraception by married couples?
HW: It's anti-discrimination language, and I'd still like to know the history and date of Section 4, and it doesn't read that broadly, despite the first sentence standing alone.
I don't think the government or the law should get involved in issues of contraception, abortion, etc. one way or the other, or in any way condone the ending by anyone, no matter who they are, of a life that has already unarguably come into existence and enjoyed the rights of a person who has been born.
lanthe: From your reply I assume you would have agreed with the outcome of Griswold, but you are silent on the matter of privacy rights implicit in the Constitution? Do you believe that a "right" cannot be legitimate unless it is specifically expressed? You use the term: "enjoy[ing] the rights of those who have been born." The 14th Amendment recognizes the due process rights of American Citizens, but defines citizens as those who have either been born or naturalized, which clearly excludes a fetus at any stage of development prior to birth. If you can't agree with the Court's reasoning in Griswold, then it's inconsistent to find some other rights for the unborn that aren't specifically stated.
You speak of ".... life that has already unarguably come into existence and enjoyed the rights of a person who has been born." This encompasses several distinct ideas. For example, what do we mean by "unarguably come into existence"? Do you refer to conception, or to implantation, or to some later stage such as viability?
At the end, you say that the government or the law should "not get involved" and also that they should "not condone." By "not condone" do you mean that they should actively oppose? Or do you mean that they should take no position whatsoever on either side of the issue? It would appear that you want them involved and uninvolved at the same time.
BTW, this is neither Jesuitical nit-picking nor Socratic law school methodology; only a desire that you clarify your position.
History Writer: The SCOTUS of the USA already ruled unanimously that there isn't a constitutional right to assisted suicide under the implied right to privacy created in Griswald, followed in Roe, or under the mystery of life clause found in Casey, which is currently the reigning case in this area of federal constitutional jurisprudence.
HW: I don't remember Griswold and thus can't comment on it. What I'm saying is that once someone has been born, meaning that one has been gestated and left the uterus and is viable, and once one would be viable outside the uterus, one is unarguably alive, as opposed to being an embryo or a foetus, about which there has been debate about whether they are "life," "in possession of life," "entitled to life," "a person" (and by person I mean infant as well), etc., one has a right to live and to life, and that I don't think that the government or the law should get involved with what happens before that point, and that once one is in possession of life, no one at all has the right to end one's life. Not in a civilized society and outside the context of military combat, anyway.
Wesley, I know what SCOTUS said. What I asked lanthe was whether SHE believed in the underlying principle in Griswold. "The Supreme Court said so" doesn't make the point moot. If it did, we wouldn't have all those folks parading around Washington every January protesting Roe v. Wade.
lanthe: "I don't remember Griswold" is a poor excuse when all you have to do is Google it. :-(
OK, so then you're not against pre-viability abortion. Is that right? And you would agree that there are no 14th Amendment protections for a fetus in the womb? Is that right? And you believe there should be no government involvement in the process of gestation prior to the fetus' ability to survive ex utero. Guess what? You're almost 100% spot-on with Roe v. Wade.
HW: Why should I have to Google it or even discuss it just because you want to "have a serious discussion" on a site run by a co-author of Ralph Nader, whom you term a "nut"? And since when do I owe you an explanation, or do you have standing to term it an excuse?
Oh well, if you prefer to hide instead of explaining yourself then don't expect to have your statements taken seriously. Griswold v. Connecticut was a landmark case here in the USA, and every American attorney is familiar with it. Your colloquialisms indicate that you're probably British. Are you really an attorney?
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