B.C. ruling reopens assisted suicide debate
the Globe and Mail reports that
Nineteen years after Sue Rodriguez lost her fight in Canada’s highest court, the country has been thrust back into the debate over physician-assisted suicide.
British Columbia’s Supreme Court on Friday declared unconstitutional Criminal Code provisions that prohibit doctors from helping their patients commit suicide. In the landmark decision, Madam Justice Lynn Smith said the provisions discriminate against people who are too ill to take their lives. [my italics]
No doubt Canada has been thrust back into debate — since the religious opposition to assisted dying will not simply die a natural death; however, the decision of Madame Justice Lynn Smith is not a debatable proposition. Madame Justice Smith gave the government a year to draft new legislation which will provide the framework for legalised assisted dying in this country. According to a Globe and Mail editorial this morning,
The federal government should have addressed this socially explosive issue long ago, but in the absence of political leadership, the court is correct to reform the law.
And, while I agree with the general tenour of the editorial, the claim that the right to die should be framed “as narrowly as possible” misses the point of the decision of Madame Justice Smith, that the refusal of legalised assistance in dying violates the charter rights of citizens.
In accompanying “for” and “against” articles — the latter of which, unsurprisingly, written by Margaret Somerville, Canada’s leading Roman Catholic opponent of assisted dying — the decision of the BC Supreme Court is alternately praised and vilified. Somerville claims, falsely, that
… the assisted suicide/euthanasia debate comes down to a direct conflict between the value of respect for human life, on the one hand, and individuals’ rights to autonomy and self-determination – the value of “choice” – on the other.
This is untrue. Those who support assistance in dying do not hold human life in contempt, as this suggests. Indeed, we honour it so much that we believe those who are living, competent, and suffering, should be able to make their own choices about dying. It is a travesty to speak of this respect for personal autonomy as disrespect for the value of life. Life will remain a great value, which is why we need legislation to govern something so sensitive as assisting people to die; but it is not an absolute value, which reigns supreme even over those who are suffering, and find life a burden too great to bear. Somerville goes on to say that
… research shows that the most likely reasons people want assisted suicide/euthanasia are fear of being abandoned – dying alone and unloved – and of being a burden on others. Surely our response to such fears shouldn’t be to help them to kill themselves or to give them a lethal injection.
To my knowledge, this is simply false. I am not familiar with any such research. Certainly, for those who do fear being abandoned, or are afraid of dying alone and unloved, there are remedies in place in palliative and hospice care which should be able to overcome these fears, and there is no reason why, in law, the possibility of such reasons should not be taken into account. It is simply a scare tactic to suggest that these are amongst the “most likely reasons” for people asking for help to die.
Somerville, as usual, bringing all the lazy old familiar arguments to bear, suggests that:
Strong arguments against legalizing assisted suicide/euthanasia at the individual level include a valid concern about their abusive use, especially in relation to old people, and particularly when paired with increasing disquiet about health-care costs.
Of course, no law is going to be such as to prevent absolutely all abuse. One parliamentarian, in the last round of debate on an assisted dying bill in Canada (2009-2010), said that, if only one person, who should not have died, should die as a result of an assisted dying bill, then assisted dying should not be legalised. But, as one of the witnesses, to BC Supreme Court Taylor-Carter challenge, to which Madame Justice Smith’s decision is a response, asked, are we sure that Canada’s present laws are never abused? We have no way of regulating end-of-life decisions now, and there is no accountability now, so we do not know how many people have been helped to die by compassionate physicians, or, by the same token, by relatives eager to benefit from their bequests. No doubt laws will be abused. There is no way to prevent this, draft our legislation how we will, except to make the penalties for abuse unacceptably high for most people. But there are ways to regulate and minimise the danger of the abuse of assisted dying legislation, and we have several jurisdictions now — for example, the Netherlands, Luxembourg, Belgium, Switzerland, Oregon State, Washington State, Columbia – whose experience can contribute to the drafting of careful legislation.
As Arthur Schafer (Director of the Centre for Professional and Applied Ethics at the University of Manitoba) says, in an article in favour of Madame Justice Smith’s decision:
After reviewing the evidence presented by both sides, including evidence based on experiences in Oregon and the Netherlands, the B.C. court concluded that none of it supports fears that mistake and abuse are more likely in a permissive but regulated regime. Mistake and abuse can and do occur in Canada as well as in Oregon. But in Canada, there are virtually no safeguards around end-of-life decision-making: deciding, for example, when to “pull the plug” or when to put a patient into “terminal sedation.” In Oregon, decisions are regulated and monitored; there is public accountability.
Nor are the usual old chestnuts of the anti-euthanasia camp of any probative value. The idea that the relationship between physicians and patients will be poisoned, or that palliative care will suffer: neither of these is borne out in either Switzerland, Oregon or the Netherlands — or, indeed, in other jurisdictions where assisted dying is legal. Indeed, as Schafer points out, relationships between patients and doctors who do not approve of assisted dying are the ones that suffer, since patients are suspicious of those who, for largely doctrinaire reasons, would refuse them help to die if suffering became too great to bear.
Margaret Somerville asks an odd question, expecting that the answer will, of course, come out on the anti-euthanasia, anti-assisted dying side:
If we legalized assisted suicide/euthanasia would it become the norm? Abortion gives a clue in this regard. How do we want our great-great-grandchildren to die? This is probably the most important question of all.
How do we want our great-great-grandchildren to die? In peace, I should have thought, and in ways of their own choosing. Somerville obviously thinks that a society in which assisted dying becomes the norm would be a less human, and a less humane society. There is no reason to think this true. Forcing people to die in the way that their disease prescribes is no more human than refusing to set a broken arm, or to provide anaesthesia during surgery. My guess is that assistance in dying will not become the norm. In places where assisted dying is legal, most people to not die with assistance. However, there is no reason why, in a well-ordered society, where respect for human life is high, assisted dying should not become the norm. If that sounds scary – and it does not sound scary to me — that is because we think that this is an area into which we should not venture, that it is, as so many benightedly think, the province of God alone. I think assisted dying is in a sense the last frontier in modern medicine. Ludwig Minelli, of the organisation Dignitas in Zürich, where the World Federation of Right to Die Societies is meeting this week (details of the Congress are available here), calls assisted dying the Last Right. It is where we should have ended up a long time ago, and where we would have ended up but for the continued opposition of the religious forces that stand against the legalisation of assistance in dying.
Since Parliament has consistently opposed the legalisation of assisted dying — refusing even to send legislation to committee for closer inspection and public discussion — it was right for the BC Supreme Court to make this decision. Whether Canada’s Attorney General will take this matter to the Supreme Court of Canada remains to be seen. But even there, at the highest level, there is no obvious reason why Madame Justice Smith’s judgement should be overturned. Whether it is the religious forces of reaction that has rendered our politicians helpless in the face of increasing demands for right-to-die legislation, or some other cause, it had become clear that Canadian politicians were simply unable to make this decision for us. It is right, therefore, that the courts have taken it upon themselves to change the law. Given that within the last year the Québec commission on end-of-life decision-making, and the Royal Society of Canada’s expert panel on end-of-life decision-making have both argued strongly in favour of legalising assisted dying, there is very little, besides the institutional drag of the churches, to prevent this from happening. Churches, however, while they may have a right to prescribe for their own members, do not have a general right to see their moral priorities upheld in the law of the land. It is time for them to stop telling half-truths and lies in the effort to stall the legislation process. This is what Canadians want, and those who do not want it, need not receive assistance in dying. People are entitled to suffer as much as they believe they must as they die, but they should not be forced by the law to die in ways that they find intolerable.
The full decision of the BC Supreme Court in the case of Carter v. Canada (Attorney General), is available here.