May 19, 2009 12:04 PM

In The Supreme Court of Montana
No. DA 09-0051
State of Montana and Steve Bullock, )
in his official capacity as Attorney General ) On Appeal from the
for the State of Montana, ) First Judicial District,
Defendants-Appellants, ) Lewis & Clark County
)
vs. ))
Robert Baxter, Steven Stoelb, Stephen ) Hon. Dorothy McCarter,
Speckart, M.D., C. Paul Loehnen, M.D., ) Judge Presiding
Lar Autio, M.D., George Risi, Jr., M.D., )
and Compassion & Choices, )
Plaintiffs-Appellees. )
Brief of Physicians for Compassionate Care Education Foundation as
Amicus Curiae in Support of Defendants-Appellants
Lance Lovell Paul Benjamin Linton
Law Offices of Lance Lovell Special Counsel
175 N. 27th Street, Suite 1206 Thomas More Society
P.O. Box 1415 921 Keystone Avenue
Billings, Montana 59103-1415 Northbrook, Illinois 60062-3614
(406) 256-9300 (tel) (847) 291-3848 (tel)
(406) 256-9301 (fax) (847) 412-1594 (fax)
law@lancelovell.com PBLCONLAW@AOL.COM
Admitted Pro Hac Vice
Counsel of Record for the Amicus Of Counsel
Thomas Brejcha
President & Chief Counsel
Thomas More Society
29 S. La Salle Street, Suite 440
Chicago, Illinois 60603-1599
(312) 782-1680 (tel)
(312) 782-1887 (fax)
brejcha@AOL.COM
Admitted Pro Hac Vice
Of Counsel
(counsel for the parties listed on inside cover)
Mark S. Connell Steve Bullock
Connell Law Firm Montana Attorney General
502 West Spruce Street Jennifer Anders
P.O. Box 9108 Anthony Johnstone
Missoula, Montana 59807-9108 Assistant Attorneys General
(406) 327-1517 (tel) 215 North Sanders
(406) 327-1518 (fax) P.O. Box 201401
msc.clf@bigsky.net Helena, Montana 59620-1401
(406) 444-2036 (tel)
Kathryn L. Tucker (406) 444-3549 (fax)
c/o Compassion & Choices janders@mt.gov
P.O. Box 6404
Portland, Oregon 97228-6404 Counsel for Defendants-Appellants
(503) 525-1956 (tel)
(800) 930-0535 (fax)
Counsel for Plaintiffs-Appellees
Table of Contents
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Statement of Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Interest of the Amicus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT:
I. THE PROHIBITION OF ASSISTED SUICIDE DOES NOT VIOLATE
ARTICLE II, § 10, OF THE MONTANA CONSTITUTION . . . . . . . . . . . 6
II. THE PROHIBITION OF ASSISTED SUICIDE DOES NOT VIOLATE
ARTICLE II, § 4, OF THE MONTANA CONSTITUTION . . . . . . . . . . . 10
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Proof of Service
Certificate of Compliance
ii
Table of Authorities
Cases:
Armstrong v. State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364 . . . . . . . . passim
Butte Community Union v. Lewis, 219 Mont. 426, 712 P.2d 1309 (1986) . . . . . . 17
Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) . . . . . . . . . . . . . . . . . 8
Comm’n for Women’s Affairs ex rel. A.I.A.R v. Secretary of Justice,
9 P.R. Offic. Trans. 954 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Donaldson v. Van de Kamp, 4 Cal. Rptr. 2d 59 (Ct. App. 1992) . . . . . . . . . . 10, 11
Figueroa Ferrer v. Commonwealth, 7 P.R. Offic. Trans. 278 (1978) . . . . . . . . . 20
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 12
In re Mental Health of K.G.F., 2001 MT 140, 306 Mont. 1, 29 P.3d 485 . . . . . . 14
In re T.W., 551 So.2d 1186 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Krischer v. McIver, 697 So.2d 97 (Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Oberg v. City of Billings, 207 Mont. 277, 674 P.2d 494 (1983) . . . . . . . . . . . . . 14
People v. Duarte Mendoza, 9 P.R. Offic. Trans. 797 (1980) . . . . . . . . . . . . . . . . 20
Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . 13
Puerto Rico Urban Renewal & Housing Corp. v. Pena Ubiles,
95 P.R.R. 301 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
R. v. Morgentaler, [1988] 1 S.C.R. 30 (Can.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iii
R. v. United Kingdom, App. No. 10083/82,
33 Eur. Comm’n H.R. Dec. & Rep. 270 (1983) . . . . . . . . . . . . . . . . . . . . . 13
Raich v. Ashcroft, 248 F. Supp.2d 918 (N.D. Cal. 2003),
rev’d and remanded, 352 F.3d 1222 (9th Cir. 2003),
vacated and remanded, 545 U.S. 1 (2005),
on remand, 500 F.3d 850 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519 (Can.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sampson v. State, 31 P.3d 88 (Alaska 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Snetsinger v. Montana University System, 2004 MT 390,
325 Mont. 148, 104 P.3d 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21
State v. Granger, 982 So.2d 779 (La. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
State v. Herrick, 2004 MT 323, 324 Mont. 76, 101 P.3d 755 . . . . . . . . . . . . . . . 14
State v. Nelson, 2008 MT 359, 346 Mont. 366, 195 P.3d 826 . . . . . . . . . . . . . . . . 8
State v. Planned Parenthood of Alaska, 171 P.3d 577 (Alaska 2007) . . . . . . . . . 12
SW v. United Kingdom, 21 Eur. Ct. H.R. 363 (1996) . . . . . . . . . . . . . . . . . . . . . . 13
Vacco v. Quill, 521 U.S. 793 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Walker v. State, 2003 MT 134, 316 Mont. 134, 68 P.3d 872 . . . . . . . . . . . . . . . . 14
Washington v. Glucksberg, 521 U.S. 701 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wilkes v. Montana State Fund, 2008 MT 29, 341 Mont. 292, 177 P.3d 483 . . . . . 1
Wiser v. State of Montana, Dep’t of Commerce, 2006 MT 20,
331 Mont. 28, 129 P.3d 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iv
Statutes:
ALASKA CONST. art. I, § 22 (Michie 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CAL. CONST. art. I, § 1 (West 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CAL. CONST. art. I, § 7 (West 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FLA. CONST. art. I, § 23 (West 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
LA. CONST. art. I, § 3 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
MONT. CONST. art. II, § 3 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
MONT. CONST. art. II, § 4 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
MONT. CONST. art. II, § 10 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
MONT. CONST. art. II, § 22 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
MONT. CODE ANN. § 45-2-201(a) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
MONT . CODE ANN. § 45-5-105 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
MONT . CODE ANN.§ 50-46-101 et seq. (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
P.R. CONST. ANN. art. II, § 1 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
P.R. CONST. ANN. art. II, § 8 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Other Authorities:
Matthew O. Clifford and Thomas P. Huff, Some Thoughts on the Meaning and
Scope of the Montana Constitution’s “Dignity” Clause with Possible
Applications, 61 MONT. L. REV. 301 (2000) . . . . . . . . . . . . . . . . . . . . . . 20
v
John M. Dolan, Is Physician-Assisted Suicide Possible?,
35 DUQUESNE L. REV. 355 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Larry M. Elison and Fritz Snyder, THE MONTANA STATE CONSTITUTION
(Westport, Conn. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Juan M. Garcia-Passalacqua, PUERTO RICAN CONSTITUTIONAL LAW (1974) . . . 20
Tia Rikel Robbin, Untouched Protection from Discrimination:
Private Action in Montana’s Individual Dignity Clause,
51 MONT. L. REV. 553 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Proceedings of the Montana Constitutional Convention,
1971-1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Proposed 1972 Constitution for the State of Montana,
Official Text with Explanation (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1
Statement of Issues Presented for Review
Whether the prohibition of assisted suicide violates the right of privacy
guaranteed by art. II, § 10, of the Montana Constitution.
Whether the prohibition of assisted suicide violates the dignity of the human
being recognized by art. II, § 4, of the Montana Constitution.
Statement of the Case
Amicus curiae generally adopts defendants’ Statement of the Case.
Statement of the Facts
Amicus curiae generally adopts defendants’ Statement of the Facts.
Statement of the Standard of Review
The standard of review with respect to both issues is plenary. Wilkes v.
Montana State Fund, 2008 MT 29, ¶ 8, 341 Mont. 292, ¶ 8, 177 P.3d 483, ¶ 8.
2
Interest of the Amicus
Physicians for Compassionate Care Education Foundation is an association
of physicians, including primary care specialists, and other health care
professionals dedicated to preserving the traditional relation of the physician and
patient as one in which the physician’s primary task is to heal when possible,
comfort always and never intentionally harm. The Foundation promotes the health
and well being of patients by encouraging physicians to comfort patients and to
assist those who are dying by providing support systems, minimizing pain and
treating depression. The Foundation affirms the health restoring role of the
physician and works to educate the profession and the public regarding the
dangers of euthanasia and physician-assisted suicide.
Physicians have the duty to safeguard human life, especially the lives of the
most vulnerable members of our society–the sick, the elderly, the disabled, the
poor, ethnic minorities and those whom society may consider unproductive and
burdensome. Physicians should use their knowledge, skills and compassion in
caring for and supporting their patients. The practice of medicine should never be
used intentionally to cause death. The relationship of trust between physician and
patient is the most important asset of physicians and is intended for the protection
of their patients.
3
Physicians for Compassionate Care Education Foundation opposes
physician-assisted suicide. The legalization of physician-assisted suicide would
undermine trust in the patient-physician relationship; change the role of the
physician in society from the traditional one of healer to that of one who facilitates
killing; and endanger the value that society places on life, especially for those who
are most vulnerable and who are near the end of life.
4
Summary of Argument
This appeal presents the stark and somber question whether Montana shall
become the first State in the Nation to authorize the practice of physician-assisted
suicide by judicial fiat, not by a vote of the people or their elected representatives.
The district court held that the prohibition of physician-assisted suicide, in the
case of terminally ill, mentally competent patients, violates the right of privacy
guaranteed by art. II, § 10, of the Montana Constitution, when considered together
with the recognition of human dignity set forth in art. II, § 4. Amicus curiae
strongly disputes that holding.
First, nothing in the state constitutional right of privacy (art. II, § 10)
secures a right to assistance in committing suicide. The district court’s reliance
upon this Court’s decision in Armstrong v. State, 1999 MT 261, 296 Mont. 361,
989 P.2d 364, in support of its holding was misplaced. The narrow holding in
Armstrong upheld the right of a patient to obtain an otherwise lawful procedure
(an abortion) from a health care professional (a physician’s assistant) who was
licensed and trained to perform the procedure. Assisted suicide, however, is
unlawful and physicians are not licensed or trained to assist their patients in killing
themselves. Physician-assisted suicide is antithetical to the nature of medicine as
a healing profession.
5
The broader holding of Armstrong, recognizing a person’s right “to make
medical judgments affecting his or her bodily integrity and health in partnership
with a chosen health care provider free from government interference,” ¶ 14, does
not extend to a decision to kill oneself with the assistance of a physician. The State
has an overriding interest in “interfering” with an individual’s privacy right to
obtain a particular treatment or procedure when there is a “medically-recognized,
bona fide health risk.” Armstrong, ¶ 62. Assisting a person in committing suicide
obviously presents such a risk.
Second, the district court’s reliance upon the “dignity” language of art. II,
§ 4, was also misplaced. The first sentence of § 4, which recognizes the dignity of
human beings as “inviolable,” expresses a core constitutional value. Protection of
that value is secured by the language of § 4 guaranteeing equal protection of the
laws (second sentence) and prohibiting discrimination in the exercise of civil and
political rights on the basis of specified categories (third sentence). The
constitutional history of § 4, as reflected in the proceedings of the Montana
Constitutional Convention, leaves no doubt that the operative language of § 4 is
embodied in the equal protection guarantee and the prohibition of certain forms of
discrimination, neither of which is implicated by the prohibition of assisted
suicide. Accordingly, the judgment of the district court should be reversed.
6
ARGUMENT
I. THE PROHIBITION OF ASSISTED SUICIDE DOES NOT VIOLATE
ART. II, § 10, OF THE MONTANA CONSTITUTION.
The district court held that the prohibition of physician-assisted suicide, at
least with respect to terminally ill, mentally competent patients, violates the right
of privacy secured by art. II, § 10 of the Montana Constitution, when considered
together with the recognition of individual dignity set forth in art. II, § 4. Decision
& Order at 17, 19, 23. Amicus submits that neither art. II, § 10 nor art. II, § 4,
considered separately or together, supports a right to assisted suicide, even in the
limited circumstances proposed by plaintiffs.
Article II, § 10, provides: “The right of individual privacy is essential to the
well being of a free society and shall not be infringed without the showing of a
compelling state interest.” MONT. CONST. art. II, § 10 (2008). The district court’s
privacy analysis relied principally upon this Court’s decision in Armstrong v.
State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364. Decision & Order at 15-19.
Armstrong, however, does not support a right to physician-assisted suicide.
First, the narrow question decided in Armstrong was that art. II, § 10,
“protects a woman’s right of procreative autonomy–i.e., here, the right to seek and
to obtain a specific lawful medical procedure, a pre-viability abortion, from a
7
health care provider of her choice.” Armstrong, ¶ 14 (emphasis added). Id. at ¶ 62
(referring to an “individual’s fundamental privacy right to obtain a particular
lawful medical procedure”) (emphasis added). Unlike abortion, however, assisted
suicide is not a “lawful” medical procedure.
Second, the broader formulation adopted in Armstrong, that art. II, § 10,
“guarantees each individual the right to make medical judgments affecting his or
her bodily integrity and health in partnership with a chosen health care provider
free from government interference,” Armstrong, ¶ 14, does not support the district
court’s holding, either. Protection of the individual’s right “to make medical
judgments affecting his or her bodily integrity and health” differs radically from
an asserted right in self-destruction where not health, but death, is the desideratum.
Armstrong itself recognized that the State has an overriding interest in
“interfering” with an individual’s privacy right to obtain a particular medical
procedure or treatment when there is a “medically-recognized, bona fide health
risk, clearly and convincingly demonstrated.” Id., ¶ 62. It would be difficult to
imagine a more “bona fide health risk” than prescribing a drug that is intended to
cause the death of the patient.
Third, “it does not necessarily follow from the existence of the right to
privacy that every restriction on medical care impermissibly infringes [upon] that
See State v. Nelson, 1 2008 MT 359, ¶¶ 21-37, 346 Mont. 366, ¶¶ 21-37, 195
P.3d 826, ¶¶ 21-37, interpreting the Medical Marijuana Act, MONT. CODE ANN.
§ 50-46-101 et seq. (2008).
2 See Raich v. Ashcroft, 248 F. Supp.2d 918, 928 (N.D. Cal. 2003)
(constitutional rights of privacy and personal liberty did not afford plaintiff the
right to obtain and use marijuana for medical purposes in violation of the federal
Controlled Substances Act), rev’d and remanded, 352 F.3d 1222 (9th Cir. 2003),
vacated and remanded, 545 U.S. 1 (2005), on remand, 500 F.3d 850, 866 (9th Cir.
2007) (same).
3 See Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir. 1980)
(cancer patient had no privacy right “to obtain laetrile free of the lawful exercise
of government police power), cited with approval in Wiser, ¶ 17 fn. 1.
8
right.” Wiser v. State of Montana, Dep’t of Commerce, 2006 MT 20, ¶ 15, 331
Mont. 28, ¶ 15, 129 P.3d 133, ¶ 15. For example, whether marijuana may be used
for medical purposes is a policy matter for the legislature to address,1 not a legal
right to be conferred by the courts under the rubric of privacy.2 Similarly, there is
no privacy right to use laetrile to treat cancer.3 So, too, whether physician-assisted
suicide should be allowed is a legislative choice, not a judicial imperative.
Fourth, while recognizing that the right of privacy is implicated in health
care choices, this Court “specifically defined the right as guaranteeing access to a
chosen health care professional who had been determined ‘competent’ by the
medical community and ‘licensed’ to perform the procedure desired.” Wiser, ¶ 15,
quoting Armstrong, ¶ 62. But physicians are not “licensed” to assist their patients
4 The problematics of sanctioning a regime of physician-assisted suicide are
aggravated by the nature of the relief plaintiffs sought in this case. Plaintiffs
challenged the homicide statutes which, when construed together with the statute
on causation, MONT. CODE ANN. § 45-2-201(a) (2008), prohibit assisted suicide.
See Complaint, Prayer for Relief, ¶¶ 2, 3. Plaintiffs, however, did not challenge
the statute prohibiting aiding or soliciting suicide, MONT. CODE ANN. § 45-5-105,
which applies when “such suicide does not occur.” Under the relief sought by
plaintiffs, therefore, physicians would not be subject to prosecution if their
patients succeeded in committing suicide with their assistance (by ingesting the
lethal drugs prescribed for them), but they would be subject to prosecution if their
patients chose not to take those drugs (or died of other causes first). As a result,
physicians would have a direct personal and professional interest in ensuring that
patients for whom they prescribed lethal drugs committed suicide. Needless to say,
that interest would fatally undermine the integrity of the medical profession.
9
in killing themselves. Such assistance not only violates the criminal law, but also
contravenes ethical standards governing the profession of medicine that go back to
the time of Hippocrates. The American Medical Association, the American
Psychiatric Association, the American College of Physicians, the American
Academy of Geriatrics and the American Pain Society, among other health care
associations, have all issued position statements against physician-assisted suicide.
Defendants’ Motion for Summary Judgment, Exhibit No. 1 (Affidavit of Dr.
Thomas V. Caughlan, ¶ 18). Indeed, the concept of physician-assisted suicide is
antithetical to the very nature of medical practice. See John M. Dolan, Is
Physician-Assisted Suicide Possible?, 35 DUQUESNE L. REV. 355 (1996).4
Finally, as the district court itself recognized, Decision & Order at 9-10,
10
three state reviewing courts, interpreting express privacy language in their state
constitutions, have held that there is no right to assistance in committing suicide,
even for terminally ill, mentally competent patients, and that any such right, if it
does exist, is outweighed by the State’s interests in preserving human life,
preventing suicide, protecting innocent third parties and maintaining the ethical
integrity of the medical profession. Sampson v. State, 31 P.3d 88, 91-98 (Alaska
2001), Donaldson v. Van de Kamp, 4 Cal. Rptr. 2d 59, 61-65 (Ct. App. 1992), and
Krischer v. McIver, 697 So.2d 97, 100-04 (Fla. 1997). Together with the other
factors discussed above, those decisions are persuasive precedents that the right of
privacy guaranteed by art. II, § 10, does not extend to physician-assisted suicide.
II. THE PROHIBITION OF ASSISTED SUICIDE DOES NOT VIOLATE
ART. II, § 4, OF THE MONTANA CONSTITUTION.
The district court, as previously noted, held that the prohibition of assisted
suicide, at least in the circumstances sought by plaintiffs, violates the right of
privacy of the Montana Constitution (art. II, § 10), when considered together with
the recognition of individual dignity in art. II, § 4. Decision & Order at 17. The
privacy guarantee of the state constitution, as interpreted by this Court in
Armstrong, does not secure a right to physician-assisted suicide. Nor does the
constitution’s recognition of individual dignity.
“It is . . . this addition of 5 the personal integrity clause to the privacy clause
that distinguishes the analysis in this case from that of the Florida, Alaska and
California decisions.” Decision & Order at 17.
11
Article II, § 4, provides:
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.
MONT. CONST. art. II, § 4 (2008).
The district court recognized that three States “that have an explicit right to
privacy in their state constitutions” have rejected privacy-based challenges to their
statutes prohibiting assisted suicide. Decision & Order at 9-10, citing Sampson,
Donaldson and Krischer. The court sought to distinguish these authorities,
however, noting that, unlike the Montana Constitution (art. II, § 4), there is no
explicit guarantee of individual dignity in the constitutions of Alaska, California
and Florida.5 The persuasive value of these opinions, however, cannot be so easily
dismissed. Although there is no explicit guarantee of individual dignity in their
constitutions, the supreme courts of all three States have recognized human
dignity as an implicit value their privacy guarantees are intended to protect. The
Alaska Supreme Court has explained that “the primary purpose of this section
The majority opinion is replete 6 with references to “dignity” as a value the
state privacy and due process guarantees were intended to protect. See In re
Marriage Cases, 182 P.3d at 399-401, 428-29, 434, 444-46, 452.
12
[referring to the privacy guarantee of art. I, § 22] is to protect Alaskans’ personal
privacy and dignity against unwarranted intrusions by the State.” State v. Planned
Parenthood of Alaska, 171 P.3d 577, 581 (Alaska 2007) (citation and internal
quotation marks omitted) (emphasis added). In its recent decision requiring the
State to recognize same-sex marriages, the California Supreme Court held that one
of the “core elements” of the state constitutional right to marry guaranteed by the
privacy (art. I, § 1) and due process (art. I, § 7) provisions of the state constitution
is “the right of same-sex couples to have their official family relationship accorded
the same dignity, respect, and stature as that accorded to all other officially
recognized family relationships.” In re Marriage Cases, 183 P.3d 384, 434 (Cal.
2008) (emphasis added).6 And in a decision striking down the State’s parental
consent statute, the Florida Supreme Court held that the state right of privacy (art.
I, § 23), protects “individual dignity and autonomy.” In re T.W., 551 So.2d 1186,
1193 (Fla. 1989) (citation and internal quotation marks omitted) (emphasis added).
The Alaska Supreme Court, the California Court of Appeal and the Florida
Supreme Court have all refused to recognize a privacy-based right to physicianassisted
suicide, even though the constitution of each State has been interpreted to
See Washington v 7 . Glucksberg, 521 U.S. 701 (1997); Rodriguez v. British
Columbia (Attorney General) [1993] 3 S.C.R. 519; R. v. United Kingdom, App.
No. 10083/82, 33 Eur. Comm’n H.R. Dec. & Rep. 270 (1983).
8 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (referring to the
“choices central to personal dignity and autonomy [that] are central to [the] liberty
protected by the Fourteenth Amendment”) (reaffirming right to choose childbirth
or abortion).
9 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519,
542 (Can.) (“[r]espect for human dignity underlies many of the rights and
freedoms in the Charter”); R. v. Morgentaler, [1988] 1 S.C.R. 30, 164 (Can.)
(Wilson, J., concurring) (“[t]he Charter and the right to individual liberty
guaranteed under it are inextricably tied to the concept of human dignity”).
10 SW v. United Kingdom, 21 Eur. Ct. H.R. 363, 402 (1996) (identifying
“respect for dignity and human freedom” as the “very essence” of the Convention).
13
protect human dignity as a core constitutional value. The Supreme Court of the
United States, the Supreme Court of Canada and the European Court of Human
Rights have also rejected privacy-based challenges to laws prohibiting physicianassisted
suicide,7 even in the circumstances proposed by plaintiffs, despite their
recognition (in the same or other cases) of human dignity as a value protected by,
respectively, the United States Constitution,8 the Canadian Charter of Rights and
Freedoms,9 and the European Convention for the Protection of Human Rights and
Fundamental Freedoms.10 Washington v. Glucksberg, Rodriguez v. British
Columbia and R. v. United Kingdom are all persuasive precedents that the
constitutional value of human dignity does not require recognition of physicianNor,
for that matter, 11 has this Court in the few decisions to date in which it
has discussed the “dignity” language of art. II, § 4. State v. Herrick, 2004 MT
323, ¶ 35, 324 Mont. 76, ¶ 35, 101 P.3d 755, ¶ 35 (dignity of criminal defendant
was not violated by being forced to wear leg restraints at his trial where there was
no evidence that the jurors ever saw the restraints); Walker v. State, 2003 MT 134,
¶¶ 52-84, 316 Mont. 134, ¶¶ 52-84, 68 P.3d 872, ¶¶ 52-84 (behavior modification
program used in a prison setting violated both the dignity clause, art. II, § 4, and
the prohibition of cruel and unusual punishments, art. II, § 22); In re Mental
Health of K.G.F., 2001 MT 140, ¶¶ 45-60, 306 Mont. 1, ¶¶ 45-60, 29 P.3d 485, ¶¶
45-60 (dignity of persons subject to involuntary mental health commitment
requires effective assistance of counsel and appropriate due process); Armstrong,
¶ 72 (dictum); Oberg v. City of Billings, 207 Mont. 277, 280, 674 P.2d 494, 495
(1983) (right not to be subjected to a polygraph examination as a condition of
employment). None of these decisions rested solely on the “dignity” language of
art. II, § 4.
12 Whether the “individual dignity” language of art. II, § 4, provides
meaningful guidance for judicial enforcement was debated by Justices Nelson and
Rice in their concurring and dissenting opinions in Snetsinger v. Montana
University System, 2004 MT 390, 325 Mont. 148, 104 P.3d 445. Compare
Snetsinger, ¶¶ 71-79 (Nelson, J., specially concurring) (first sentence of art. II, § 4,
is enforceable independently of the two sentences guaranteeing equal protection
and prohibiting discrimination), with ¶¶ 157-58 (Rice, J., dissenting) (contra).
14
assisted suicide.
Neither the parties, in their trial briefs, nor the district court examined the
constitutional history of the individual dignity language of art. II, § 4.11 That
history, however, demonstrates that the first sentence of § 4 expresses a
constitutional principle (or value) that is given effect by the two sentences that
follow.12 In other words, “[t]he dignity of the human being” is secured by treating
him or her equally with others and by prohibiting discrimination. Properly
As is the “Right 13 to Individual Dignity” guarantee of the Louisiana
Constitution, LA. CONST. art. I, § 3 (West 2006), the operative clauses of which
guarantee equal protection and prohibit discrimination. See State v. Granger, 982
So.2d 779, 788-89 (La. 2008) (discussing standards of review under art. I, § 3).
14 Larry M. Elison and Fritz Snyder, THE MONTANA STATE CONSTITUTION
35 (Westport, Conn. 2001) (“[t]he language [of art. II, § 4] is unique to the extent
that it recognizes human dignity as a dimension of, or corollary to, the concept of
equal protection of the law”) (emphasis added); Tia Rikel Robbin, Untouched
Protection from Discrimination: Private Action in Montana’s Individual Dignity
Clause, 51 MONT. L. REV. 553, 559-62 (1990) (intent of framers of art. II, § 4, was
to eradicate discrimination).
15
understood, therefore, § 4 should be regarded as a general guarantee of equal
protection, combined with a prohibition of discrimination on specified grounds,13
as several commentators have noted.14
What ultimately became art. II, § 4, was proposed by Delegates Richard J.
Champoux, William A. Burkhardt and Marshall Murray. MONTANA
CONSTITUTIONAL CONVENTION 1971-1972 (hereinafter MCC), Vol. I, p. 161
(Delegate Proposal No. 61). Their proposal, slightly modified, was adopted by the
Bill of Rights Committee. MCC, Vol. II, pp. 620, 628. As modified, § 4 stated:
The dignity of the human being is inviolable. No person shall
be denied the equal protection of the law, nor be discriminated
against 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, by any person, firm, corporation, or institution; or by
the state, its agencies or subdivisions.
Id.
16
The Bill of Rights Committee adopted § 4 “with the intent of providing a
Constitutional impetus for the eradication of public and private discrimination
based on race, color, sex, culture, social origin or condition, or political or
religious ideas.” MCC, Vol. II, p. 628. “The provision,” the Committee explained,
is aimed at prohibiting private as well as public discrimination in civil and
political rights.” Id. The Committee heard “[c]onsiderable testimony” on “the
need to include sex in any equal protection or freedom from discrimination
provisions.” Id. The word “culture” was added to the proposal “to cover groups
whose cultural base is distinct from mainstream Montana, especially the American
Indians.” Id. “Social origin or condition” was included “to cover discrimination
based on status of income and standard of living.” Id. Finally, the language
“political or religious ideas” was added “to prohibit public and private concerns
discriminating against persons because of their political or religious beliefs.” Id.
After noting that the wording of § 4 was derived “almost verbatim from Delegate
Proposal No. 61,” the Committee expressed the view that the proposed language
“incorporated all the features of all the Delegate Proposals . . . on the subjects of
equal protection of the laws and the freedom from discrimination.” Id.
It is apparent from the Bill of Rights Committee Report that “[t]he dignity
of the human being” recognized as “inviolable” in the first sentence of art. II, § 4,
As noted below, the second s 15 entence was later divided into two separate
sentences by the Committee on Style and Drafting.
16 There is nothing novel or even particularly unusual about a constitutional
provision expressing a principle that, in itself, does not create any judicially
enforceable rights. For example, it is clear from the convention debates that the
right “of pursuing life’s basic necessities,” art. II, § 3, is a “statement of principle”
that was not intended “to create a substantive right for all the necessities of life to
be provided by the public treasury.” MCC, Vol. V, pp. 1636 (remarks of Delegate
Monroe). See Butte Community Union v. Lewis, 219 Mont. 426, 430-31, 712 P.2d
1309, 1311-12 (1986) (citing debates).
17
was to be secured by the second sentence, as proposed,15 which guarantees every
person the equal protection of the law and prohibits discrimination against anyone
“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.” Thus, the first
sentence of § 4 expresses a principle (or constitutional value) which was to be
given effect by the second sentence (as proposed).16 If a given statute does not
deny equal protection of the law and does not discriminate on any of grounds
identified in § 4, then the dignity of the person has not been violated. This is
confirmed by a review of the debate on art. II, § 4, in the Committee of the Whole.
In introducing § 4 of the Bill of Rights Committee Proposal, Delegate
Mansfield reiterated that the Committee had adopted this section “with the intent
of providing a constitutional impetus for the eradication of public and private
discrimination based on race, color, sex, culture, social origin or condition, or
18
political or religious ideas.” MCC, Vol. V, p. 1642 (remarks of Delegate
Mansfield). After Delegate Mansfield recited the Bill of Rights Committee
Comments on § 4, the Committee of the Whole considered and rejected an
amendment proposed by Delegate Habedank to strike the words “by any person,
firm, corporation or institution; or” from the second sentence, as proposed. Id.,
Vol. V, pp. 1642-46. In the course of the debate over the proposed amendment,
Wade Dahood, Chairman of the Bill of Rights Committee, stated that “[t]he intent
of Section 4 is simply to provide that every individual in the State of Montana, as
a citizen of this state, may pursue his inalienable rights without having any
shadows cast upon his dignity through unwarranted discrimination.” Id., Vol. V,
p. 1643 (emphasis added). The Committee of the Whole thereafter recommended
that the Convention adopt § 4. Id., Vol. V, p. 1646.
The Committee on Style and Drafting recommended revising § 4 of the
proposed Bill of Rights by splitting the second sentence into two sentences,
rephrasing the section and deleting unnecessary language. MCC, Vol. II, pp. 957,
962, 967, 969. The Committee of the Whole accepted these revisions, id., Vol.
VII, pp. 2477, 2501, 2630-31, 2921, which put § 4 into its current form. The
Convention thereafter adopted art. II, including § 4. Id., Vol. VII, pp.2933-34.
Given the Comments of the Bill of Rights Committee, as well as Chairman
17 That may also have represented the understanding of the voters who were
informed that art. II, § 4, was a “[n]ew provision prohibiting public and private
discrimination in civil and political rights.” Proposed 1972 Constitution for the
State of Montana, Official Text with Explanation, p. 6.
18 The prohibition of assisted suicide does not violate the equal protection
guarantee of the second sentence of § 4. See Decision & Order at 11-13; Vacco v.
Quill, 521 U.S. 793 (1997). The third sentence (prohibiting discrimination) is not
implicated. The Bill of Rights Committee rejected a proposal (Delegate Proposal
No. 103) that would have recognized the right of the “incurably ill” not to be “kept
alive” by “extraordinary means,” MCC, Vol. I, p. 223; Vol. II, p. 649, which
suggests that the Committee did not intend to create a right to assisted suicide.
19
Dahood’s statement that § 4 was intended to allow Montanans to pursue their
“inalienable rights” without having their dignity overshadowed by “unwarranted
discrimination,” the Convention would have understood that the operative
provisions of § 4 guaranteed equal protection and prohibited discrimination.17
Those provisions are the judicially enforceable means by which the end of
preserving human dignity is achieved.18
Article II, § 4, was derived from art. II, § 1, of the Puerto Rico Constitution.
MCC, Vol. V, p. 1642. Art. II, § 1, provides:
The dignity of the human being is inviolable. All men are
equal before the law. No discrimination shall be made on account of
race, color, sex, birth, social origin or condition, or political or
religious ideas. Both the laws and the system of public education
shall embody these principles of essential human equality.
P.R. CONST. ANN. art. II, § 1 (2008). The last sentence of this section expresses
See Juan M. Garcia-Passalacqua, P 19 UERTO RICAN CONSTITUTIONAL LAW
41 (1974) (concept of the dignity of the human being is “the moral basis for
democratic government,” and implies the “essential equality” of all people before
the law”).
20 “In our jurisdiction the concept of privacy of the human being has an
express constitutional origin.” People v. Duarte Mendoza, 9 P.R. Offic. Trans.
797, 802 n. 5 (1980), citing P.R. CONST. ANN. art. II, § 8 (2008), which provides:
“Every person has the right to the protection of law against abusive attacks on his
honor, reputation and private or family law.” P.R. CONST. Ann. art. II, § 8 (2008).
21 Contrary to the suggestion of some, see Matthew O. Clifford and Thomas
P. Huff, Some Thoughts on the Meaning and Scope of the Montana Constitution’s
“Dignity” Clause with Possible Applications, 61 MONT. L. REV. 301, 323-24
(2000), the Puerto Rico Supreme Court’s decision in Puerto Rico Urban Renewal
& Housing Corp. v. Pena Ubiles, 95 P.R.R. 301 (1967), was not based on the
“dignity” language of art. II, § 1, which was not even cited in the opinion, but
upon due process. Id. at 306. The same court’s decision in Figueroa Ferrer v.
Commonwealth, 7 P.R. Offic. Trans. 278 (1978), which recognized a right to nofault
divorce, was principally based on art. II, § 8, not art. II, § 1. Id. at 281-87.
20
the understanding of the drafters that § 1 sets forth “principles of essential human
equality.”19 Consistent with that understanding, and apart from privacy interests
separately protected by art. II, § 8,20 the case law interpreting § 1 has largely
involved claims of discrimination. See, e.g., Comm’n for Women’s Affairs ex rel.
A.I.A.R v. Secretary of Justice, 9 P.R. Offic. Trans. 954, 975 (1980) (striking down
rule of procedure requiring, in certain rape prosecutions, corroboration of the
victim’s testimony).21
Amicus concurs with Justice Rice’s understanding of the “individual
22 Justice Rice was addressing an alternative argument advanced by Justice
Nelson in support of the majority opinion. See Snetsinger, ¶¶ 71-79 (Nelson, J.,
specially concurring).
21
dignity” language of art. II, § 4:
Of course, dignity undergirds the Constitution and is part of the
philosophical foundation of our Constitution. We would desire that
all would be treated with dignity and work toward such end under the
law, but that is something far different than interpreting the law to
require all outcomes to be consistent with dignity–whatever that
would mean, and this is the problem. Elevating the dignity provision
to such a place would inevitably require that a judge’s subjective
feelings about how a person should be treated be enshrined in law,
and that without limits, because “human dignity may not be violated–
no exceptions.”
Snetsinger, ¶ 158 (Rice, J., dissenting) (quoting Nelson, J., specially concurring,
¶ 77).22
Neither the right of privacy guaranteed by art. II, § 10, nor the recognition
of individual dignity set forth in art. II, § 4, protects a right to physician-assisted
suicide. Accordingly, the judgment of the district court should be reversed.
22
CONCLUSION
For the foregoing reasons, amicus curiae respectfully requests that this
Honorable Court reverse the judgment of the district court.
Respectfully submitted,
__________________ ___________________
Lance Lovell Paul Benjamin Linton
Law Offices of Lance Lovell Special Counsel
175 N. 27th Street, Suite 1206 Thomas More Society
P.O. Box 1415 921 Keystone Avenue
Billings, Montana 59103-1415 Northbrook, Illinois 60062-3614
(406) 256-9300 (tel) (847) 291-3848 (tel)
(406) 256-9301 (fax) (847) 412-1594 (fax)
law@lancelovell.com PBLCONLAW@AOL.COM
Admitted Pro Hac Vice
Counsel of Record for the Amicus Of Counsel
__________________
Thomas Brejcha
President & Chief Counsel
Thomas More Society
29 S. La Salle Street, Suite 440
Chicago, Illinois 60603-1599
(312) 782-1680 (tel)
(312) 782-1887 (fax)
brejcha@AOL.COM
Admitted Pro Hac Vice
Of Counsel
Proof of Service
I hereby certify that on April 2, 2009, one copy of the Brief Amicus Curiae
of Physicians for Compassionate Care Education Foundation was served on the
following counsel of record, by depositing the same in the United States Post
Office, first class postage prepaid, Northbrook, Illinois:
Mark S. Connell Steve Bullock
Connell Law Firm Montana Attorney General
502 West Spruce Street Jennifer Anders
P.O. Box 9108 Anthony Johnstone
Missoula, Montana 59807-9108 Assistant Attorneys General
215 North Sanders
Kathryn L. Tucker P.O. Box 201401
c/o Compassion & Choices Helena, Montana 59620-1401
P.O. Box 6404
Portland, Oregon 97228-6404 Counsel for Defendants-Appellants
Counsel for Plaintiffs-Appellees
__________________________
Paul Benjamin Linton
Certificate of Compliance
Pursuant to Rule 11(4)(d) of the Montana Rules of Appellate Procedure, I
hereby certify that the Brief Amicus Curiae of Physicians for Compassionate Care
Education Foundation in Support of Defendants-Appellants is double-spaced,
proportionately spaced, using Times New Roman typeface and 14-point type, and,
according to the word count of the processing software used to prepare the brief
(Word Perfect 12.0), contains 5,000 words, exclusive of the cover, inside cover,
table of contents, table of authorities, proof of service, certificate of compliance
and the signature block.
__________________________
Paul Benjamin Linton

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