A judge in British Columbia has declared unconstitutional a ban on assisted suicide.
Striking down, as unconstitutional, the Criminal Code provision prohibiting assisted suicide, as the Gloria Taylor case does, in effect legalizing physician-assisted suicide, is a very bad idea for many reasons and a step backwards for Canada and Canadians and Canadian values, ethics and law. Not least because it will, inevitably, lead to legalizing euthanasia.
Legalizing assisted suicide/euthanasia raises issues not only at the level of individuals like Gloria Taylor who want access to assisted suicide – the micro level –which is the level of the majority of the arguments presented in court cases and in the media. But also, it will have profound impact at the meso or institutional level – impact on healthcare professions and hospitals; at the macro or societal level –impact on some of our most important shared values that provide the glue that binds us as society; and, even, impact at the mega or global level – the message and precedent it will broadcast about Canada outside our borders.
Taking all these levels into account, 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.
People who are anti-assisted suicide/euthanasia give priority to respect for human life. That value has two limbs: respect for each individual human life, and respect for human life in general. Even if we were to accept (which I do not) as the Taylor case would allow, that helping a competent, consenting, disabled adult to die does not contravene respect for individual human life, it still contravenes the second limb of the value, that is, respect for human life in general. Legalizing assisted suicide/euthanasia means that we cross the line that we have maintained for millennia in societies such as ours: that we must not intentionally kill each other, the only exceptions being where that is the only reasonable way to protect human life, as in self-defence.
People who support legalizing assisted suicide/euthanasia simply assume that individual autonomy is the value that takes priority. As in the Taylor case, their justification for taking that stance is made almost entirely at the individual level – the right of individuals to decide how and when and where they will die. This position is presented by pro-euthanasia advocates as a necessary means to relieve pain and suffering. Research shows, however, that is not the reason many people want assisted suicide/euthanasia. They are more likely to be fearful of being abandoned – dying alone and unloved – and of being a burden on others. Surely our response to such fears shouldn’t be an offer to help them to kill themselves or to give them a lethal injection.
It merits noting, as we can see in the Taylor case, that using the Canadian Charter of Rights and Freedoms to argue for legalizing assisted suicide/euthanasia strongly favours the case for these interventions, because the underlying raison d’être of the Charter and the basic presumption it enshrines is to protect individuals against state action they regard as oppressive and in breach of their rights. This presumption in favour of the individual can be rebutted under section 1, but showing, for instance, future harm to society and its values can be difficult, even when these are very credible concerns. In contrast, when, as in the Taylor judgment, “individual choice” is the value given priority – respect for autonomy and help in implementing one’s choices when one is disabled - the case for it is relatively easy to establish. I also note with respect to the impact of the Charter in the assisted suicide/euthanasia debate, that the Taylor case raises the issue of whether unelected judges or elected members of Parliament should make decisions on such matters of shared values and public policy. Just over a year ago the Canadian Parliament voted 228 to 59 against a private members bill that would have legalized euthanasia.
Strong arguments against legalizing assisted suicide/euthanasia at the individual level include a realistic and valid concern about their abusive use, especially in relation to old people in an aging population, and particularly when paired with increasing disquiet about health-care costs. And that is not just my opinion. Two Environics polls, one in 2010 that surveyed over 2000 Canadians and one in 2011, showed Canadians are very concerned about elder abuse if assisted suicide/euthanasia is legalized.
The 2011 poll expressly asked about "elder abuse" and 76 percent of respondents said they were concerned about it if euthanasia were legalized. The 2010 poll did not expressly ask about "elder abuse", but did ask a question where 78 percent of respondents said they were concerned that elderly persons (disabled and sick persons too) would be euthanized without consent. To another 2010 question, 63 percent said they were concerned elderly persons could be pressured to accept euthanasia in order to reduce health care costs.
I have spent around thirty years researching and writing on assisted suicide/euthanasia and I believe there are a series of questions we must address and that in answering them many more Canadians will come to the conclusion that legalizing assisted suicide/euthanasia is a very bad idea. These questions include the following:
Why are we debating assisted suicide/euthanasia now when there is so much more we can do to relieve pain and suffering than was ever possible in the past? I suggest the answers lie at a societal level, not the level of dying individuals, and include, for instance, factors such as an intense fear of death at both individual and societal levels and, with the loss of adherence to institutionalized religion, no straightforward way to deal with that fear; seeking a technological solution to all problems – assisted/euthanasia is an example of using a technical solution to address an existential issue; intense individualism - the rights of individuals, especially of “choice”, always take priority with insufficient weight given to the needs and claims of the community; materialism and consumerism – dying people are equated to out-of-date products to be disposed of; and so on.
Is confusion between ethically acceptable and ethically unacceptable interventions at the end of life being used as a strategy for legalizing assisted suicide/euthanasia? The answer is a clear yes, as the Taylor judgment shows. Central to the argument of advocates (as we can see in the Royal Society of Canada “Expert Panel on End-of-Life Decision Making” report and the Quebec Legislative Assembly Committee report on “Dying with Dignity”, both of which the Court cites approvingly) is that there is no ethical or moral difference between withdrawing life support to allow a terminally ill person to die and assisted suicide/euthanasia and there ought to be no legal difference. But there is a world of difference, long recognized by the law, between a person dying of natural causes, as happens when life support is withdrawn, and helping that person to kill herself or killing her. And both our emotions and moral intuition tell us there is a major difference. Recent research shows these are important factors in reaching good ethical decisions.
Would legalizing assisted suicide/euthanasia harm medicine and society? Again, the answer is a clear yes.For example, in a secular society such as Canada medicine and law are the principal institutions that carry the value of respect for life. They could no longer do so in an unambiguous way. People, especially old or disabled people, become afraid to enter hospital or give consent to pain relief treatment for fear they will be euthanized. And research in the Netherlands and Belgium shows those fears are not unjustified. It merits noting that increasing numbers of physicians are voting against legalizing assisted suicide/euthanasia. I believe that is because they see it as a breach of trust – a breach of their fiduciary obligations to their patients. And can we even imagine teaching medical students how to competently kill their patients?
If we legalized assisted suicide/euthanasia would it become the norm? Probably the most instructive analogy in answering that question is abortion. When it was first legalized, as we can read in Hansard, parliamentarians argued it would be rarely used. Now around one in four pregnancies result in abortion in Canada and comparable countries.
How do we want our great-great grandchildren to die? This is probably the most important question of all. And if we legalize assisted suicide/euthanasia what kind of society will they live in and what will be its shared values?
So, we must ask, what do dying people need to make death bearable and put into practice what we find. Researchers such as psychiatrist Dr Harvey Max Chochinov of Manitoba and his colleagues are helping us to gain knowledge in that regard. It includes having access to good palliative care, including fully adequate pain management. But it also includes existential matters such as helping dying people to feel that they are respected and that they have something to give us – that we have something to learn from them -- which they can leave as a legacy, and that even when we are dying we can have a sense of hope and avoid the slough of despair.
Margaret Somerville is Samuel Gale Professor of Law and Director of the McGill Centre for Medicine, Ethics & Law and is an international leader in the discussion of complex ethical questions in medicine.