Yesterday, the Supreme Court of Montana heard argument in Baxter v. State of Montana (Case No. DA 09-0051), an appeal by the state of Montana against a decision by a district court judge, Judge Dorothy McCarter, recognizing a right to physician assisted suicide under the Montana state constitution. (The U.S. Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997) declined to recognize such a right as fundamental under the Due Process clause of the U.S. Constitution.)
How the Montana Court approaches this case will be an important test of how deep the current commitment is, in the U.S., to engagement with comparative constitutional experiences and materials. The Montana Constitution is the only constitution in the U.S. to contain an explicit guarantee of individual “dignity”, and that guarantee was the basis of the district court’s decision in the case. Given the importance of dignity-based reasoning in most international and many comparative contexts, as well as recent developments in this area globally, it is therefore hard to think of a more natural case for comparative engagement by a state court in the U.S., under a state constitution. (Vicki Jackson makes this point in a more general context in a great article, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 Mont. L. Rev. 15 (2004).)
Whether or not the Montana Court looks to recent global judicial developments, such as the decision of the UK House of Lords in R (Purdy) v. Director of Public Prosecutions (see Cheryl Saunder’s excellent summary of the decision in her post of 08.06.09), or broader comparative sources focusing on the nexus between dignity and the right to die, such as the South African Law Commission’s Report, Euthanasia and the Artificial Preservation of Life (1998) (http://www.saflii.org/za/other/zalc/report/1998/7/), will therefore be a key test of where we now stand in the U.S. when it comes to comparative engagement by U.S. courts after both Roper v. Simmons, 543 U.S. 551 (2005) and the Congressional debate that followed it.
If one looks at the amicus briefs filed in Baxter case, there is also, unfortunately, limited cause for optimism about what the result of this test will be. (For amicus briefs supporting the appellant, see e.g. http://www.compassionandchoices.org/act/legal_work/baxter; and for those supporting the respondent, see http://www.aul.org/MT_Baxter_v_State#AUL). On my admittedly brief reading of the briefs, it seems that while some mention foreign materials, none make use of such materials as a potentially persuasive source of argument. I would, of course, welcome being corrected by someone more versed in the details of the briefs.