In Ireland, Marie Fleming, onetime lecturer at University College Dublin, has just lost her bid for assistance in dying. According to the Irish Independent:
Today a three judge High Court, comprised of the President of the High Court, Mr Justice Nicholas Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan unanimously rejected Marie Fleming’s constitutional challenge against the ban.
In rejecting the ban the High Court justices said
that while Ms Fleming was in many ways “the most remarkable
witness any of the Judges had ever the been privileged to encounter,” but in the
interests of protecting the vulnerable in society the ban was justified and did
not amount to an interference with her rights.
This is a piece of nonsense, constantly repeated, which has no justification in fact. Study after study has shown that the so-called “vulnerable” are not at risk, and that assisted dying has been carried out in many jurisdictions without placing supposedly vulnerable groups at risk.
But the idiocy of the courts goes much further than this, for in the person of Ms. Fleming, suffering from advanced MS, so that she is now unable to move her limbs, and her swallowing is seriously compromised, the justices had, by their own admission, a remarkable witness, someone who, undoubtedly, would appear in any research as a supposedly “vulnerable” person, but quite able to make up her own mind regarding the way in which she would choose to die. The claim that vulnerable people would be put at risk, and that in refusing Ms. Fleming’s request for assistance in dying the court’s decision did not amount to an interference in her rights, is spurious. There is simply no empirical basis for the claim, which is based entirely on campaigns by the religious against the legalisation of assisted dying. They have even, by this process, raised anxiety in those who may consider themselves vulnerable. Yet the evidence we have, from Oregon, the Netherlands and Belgium, gives us no reason whatever to suppose that vulnerable people would be placed at risk, were assisted dying to be legalised with appropriate protocols. To treat the so-called “vulnerable” in this way is yet one more insult to their humanity.
Besides this, the Irish High Court had a perfect example, if example were needed, of a control mechanism that would prevent any risk to supposedly vulnerable individuals. To have anyone desiring assistance in dying put their case before the court, would provide an immediate check upon the use of assisted dying in ways that would jeopardise the vulnerable, yet they chose to ignore the plain facts of the case. Their decision need have created no precedent save the precedent that would provide, for anyone in a situations such as Ms. Fleming’s, the opportunity to put her case before an appropriate tribunal. To have met her, to have recognised that, though “vulnerable,” she would not have suffered abuse by being provided with assistance in dying, is already to have violated her rights. Why could they not see this?
It irritates me almost beyond endurance to have decisions such as this handed down without any awareness that there is an implicit contradiction in the decision itself. In Canada, for example, in the decision of the Canadian Supreme Court in the case of the Rodriguez case, the majority opinion of the court first of all denied that forcing Sue Rodriguez to die in the way dictated by her disease would violate Section 12 of the Charter of Rights and Freedoms, which provides that no one should be subjected to cruel or unusual punishment or treatment, would violate her rights under this section, even though, by forcing her to undergo such torment, was in fact to subject her to cruel treatment. Giving her no choice in the matter was already to subject her to treatment that she considered cruel and unusual. It cannot be a defence that this was the natural course of her disease, since it was precisely this that she wanted to avoid by receiving help to die. So, had no one come forward to help her die, anonymously, as someone in fact did, the government would have forced her to undergo such treatment. It is simply a masquerade to pretend otherwise.
The court then determined that, though the law did unfairly discriminate against those unable to die by their own hands, this was permitted under the Charter of Rights and Freedoms as something necessary in a free and democratic society. According to a Canadian government analysis of the written decisions of the court in this case, the majority invoked the “notwithstanding clause” of the Charter of Rights and Freedoms, and argued as follows:
To create an exception to the prohibition against assisted suicide for certain groups of persons would create an inequality and lend support to the notion that we are starting down the “slippery slope” toward full recognition of euthanasia. He considered the creation of safeguards to prevent abuse unsatisfactory and insufficient to calm fears of the likelihood of abuse.
Notice, again, reference to “fears of the likelihood of abuse.” Since there was not much evidence at the time regarding the effectiveness of safeguards in preventing abuse, Mr. Justice Sopinka, who wrote the majority decision, may be allowed some latitude with respect to the ability or inability to provide adequate safe-guards. This, however, should not be a default position, as it has almost universally become. The majority should have been required to educe adequate reasons for believing that such safeguards could not be provided.
It should, however, be noted that the issue of “the fears of the likelihood of abuse” will continue to be used, notwithstanding evidence to the contrary, no matter what safeguards are drafted. The religious will never let this particular issue go, and they will continue to stir up as much anxiety and fear amongst the general populace as possible in its efforts to see that assisted dying is not legalised. This is normal behaviour from the religious lobby, and it should no longer be taken seriously. That the Irish judges relied almost entirely on this religious argument is sufficient indication to demonstrate (to my satisfaction, at any rate) that the main opposition to the acceptance of Ms. Flemings plea was religious in orientation.
Judges must stop using religion as an excuse, and come to recognise that assisted dying is a fundamental issue of human rights. No state should have the right to prohibit assistance in dying for those who are competent to ask for such assistance, and whose suffering, in their opinion, has become intolerable. Governments really must come to recognise that forcing someone to live in conditions which they consider intolerable is equivalent to enslaving that person during the period of their enforced suffering. If governments can recognise that slavery should be prohibited, then they should be able to recognise that forcing a competent person to undergo intolerable suffering should also be prohibited, religious arguments notwithstanding. Religious believers must make up their own minds on this. Many of them, I think, are in favour of assisted dying. Justice will eventually come to the dying, despite the continuing religious death-cult filibuster designed to prevent its arrival.