Kaveny on the Montana assisted-suicide decision

My colleague, Cathy Kaveny, has a thoughtful and illuminating essay in Commonweal about the Montana Supreme Court's recent (and under-remarked) assisted-suicide decision.  A bit:

. . . [T]he majority recognized that in Montana (as elsewhere) public policy does not allow the victim to give legally valid consent to crimes destructive of the person, such as assault. The majority attempted to distinguish this situation from PAS by saying that the public-policy exception applied centrally to “violent, public altercations [that] breach public peace and endanger others in the vicinity.” In contrast, it argued, death by PAS is “peaceful and private.”

 This line of reasoning fundamentally misconstrues what counts as “private.” Our legal tradition has always recognized that when one member of the community seriously injures or takes the life of another, it is always an issue of public concern—no matter where it might take place or how serene the action itself might appear. The opinion’s requirement that the consensual attack be  “private” and  “peaceful” doesn’t hold up under examination. An assault consisting of a consensual strangling in a hotel room won’t spark a riot, nor will the consensual smothering of one sleeping spouse by the other. But these are still matters of public concern. . . .