Who needs a legislature when you’ve got a supreme court?
There’s something about social policy that entices judges to moonlight as legislators—and not just in the United States. On February 6, 2015, the Supreme Court of Canada ruled that Canada’s ban on assisted suicide violates the country’s Charter of Rights and Freedoms. Specifically, the Court held in Carter v. Canada that the criminal penalty of up to fourteen years' imprisonment for aiding or abetting a suicide interferes with a patient’s rights to life, liberty, security, and equal treatment under the law.
The court relied on arguments very similar to those rejected by the United States Supreme Court in a pair of unanimous rulings against a right to assisted suicide in 1997 (Washington v. Glucksberg and Vacco v. Quill). In all of these cases, assisted suicide advocates argued that legalizing assisted suicide was necessary to protect a fundamental—but unstated—right protected by the nation’s constitution. If this hypothetical right to die (or, more accurately, right to assistance in killing oneself) is acknowledged, the government must overcome a high hurdle to justify infringing it. Claimants also argued that a violation of this right results in an unreasonable loss of equal protection or treatment.
In Carter, assisted suicide advocates won on both counts, and the result is a sweeping change in Canadian social policy.
A Lack of Clear Definitions Endangers the Depressed
Troublingly, although it makes sweeping changes that parliament has repeatedly refused to codify in law, the judgment of the Carter Court does not define the terms it uses to mark the lines between life and death:
We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
The word “irremediable” would seem to mean “not treatable,” but this takes on a much broader meaning than it has in the three assisted suicide regimes in the United States. In Oregon, Washington, and Vermont, assisted suicide is limited to those with a terminal diagnosis (usually given six months or less to live). In Carter, however, eligibility for assisted suicide is not tied to a severely curtailed life expectancy. Rather, it is triggered whenever an illness, disease, or disability is present that can’t be fully cured.
It gets worse. The Carter Court explicitly states that either “physical or psychological suffering” merits access to assisted suicide. If such suffering becomes “intolerable” to a person, she can get help killing herself merely because she can’t bear the thought of a diminished life, however she defines it. As Wesley J. Smith puts it, “a treatable condition can qualify as ‘irremediable’ if the patient chooses not to pursue available remedies. So an ‘irremediable’ condition that permits life-termination may actually be wholly remediable, except that the patient would rather die than receive care.”
Opening the door to assisted suicide for those suffering from psychological distress poses a serious risk to people battling depression. Many who receive a diagnosis of a serious disease go through a period of depression. The same is true for those sustaining a permanently disabling injury. Making doctor-assisted suicide an acceptable legal option threatens to rob these people of the care and treatment they deserve. As one Canadian psychiatrist warns,
severe depression is not like late-stage pancreatic cancer, for which no known treatments available today will ultimately stop the “downward spiral to death.” Our field is moving forward, and I would not want to be in the position of saying, “if we hadn’t assisted death and dying in this person five years ago, they could have had a particular treatment that we now see works.”
The Court seems to have no such qualms.
Judicial Usurpation of the Legislative Function
In deciding to strike down the Canadian prohibition on assisted suicide, the Carter Court overturned its own precedent in Rodriguez v. British Columbia (1993). The move was justified, the Court said, in part because of an evolved “matrix of legislative and social facts” that gave the Court leeway to change its mind.
This is a bold claim, since the federal parliament—which has access to the same contemporary “matrix” the Court has at its disposal—has repeatedly refused to change the law. In its written opinion, the Court acknowledges that “between 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide. None was passed.” In addition, “the Senate considered the matter as well, issuing a report on assisted suicide and euthanasia in 1995. The majority expressed concerns about the risk of abuse under a permissive regime and the need for respect for life.”
It bears noting that elected representatives, unlike judges, must weigh competing considerations when deciding whether to support or oppose proposed legislation. Committees engage in extensive fact-gathering to get a sense of the problem, the potential consequences of a proposed solution, and the level of public support. All of this has to be balanced against other issues that vie for attention on a crowded legislative docket, the fruits of which are judged on Election Day.
Through this process, the people who must live under the law can hold their representatives accountable. The Canadian parliament has been unable to reach a consensus that the criminal prohibition on assisted suicide should be changed. Thus, it seems clear that the governmental branch best suited to decide has chosen to keep the law as it is. The closest the Carter Court comes to acknowledging the challenging tradeoffs in policymaking occurs in the second paragraph of its opinion:
This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.
This is precisely the tension facing the Canadian parliament and every legislative body considering whether to legalize assisted suicide. The absence of change to Canadian law thus far does not imply a failure to act on the part of legislators, but rather the failure by advocates to persuade a majority in parliament that legalizing assisted suicide will protect the vulnerable as well as the prohibition does.
Not content with parliament’s response, the Canadian judiciary stepped in. The trial judge in Carter is praised twice by the Supreme Court for “extensive” efforts to act as a parliament of one. An excerpt from paragraphs 104 and 105 of the Supreme Court’s opinion shows just how far the judiciary is willing to wrest away legislative decision-making:
the trial judge heard evidence from scientists, medical practitioners, and others who were familiar with end-of-life decision-making in Canada and abroad. She also heard extensive evidence from each of the jurisdictions where physician-assisted dying is legal or regulated. In the trial court’s view, an absolute prohibition would have been necessary if the evidence showed that physicians were unable to reliably assess competence, voluntariness, and non-ambivalence in patients; that physicians fail to understand or apply the informed consent requirement for medical treatment; or if the evidence from permissive jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope, leading to the causal termination of life.
The trial judge, however, expressly rejected these possibilities. After reviewing the evidence, she concluded that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them.
And yet, despite all this extensive evidence and deliberation neither the trial judge nor the Supreme Court justices give any indication which “permissive regime with . . . properly designed and administered safeguards” the Canadian parliament should adopt. In place of details, the courts impose a twelve-month deadline for legislative action. After that, assisting suicide will no longer be a crime. If parliament does not enact a regulatory regime to the judiciary’s liking, responsibility for deciding who gets to exercise the right to die could fall to professional medical associations.
Unless the Canadian parliament reasserts its primacy to make the law, the Canadian Supreme Court may cut it out of many of the nation’s life-and-death decisions.
Dangerously Naïve about the Potential for Abuse
To put it charitably, the Carter Court is dangerously naïve to imply that regulatory regimes that allow assisted suicide are working fine. A Newsweek cover story published barely a week after the Carter decision chronicles how quickly medicalized killing can expand once legalized. The article includes interviews with experts on both sides of the debate as well as official governmental statistics from the jurisdictions where assisted suicide is legal.
In the Netherlands, for example, assisted suicide has been permitted in some form since the 1970s. In 2002, euthanasia—in which a doctor or nurse directly administers the lethal agent—was decriminalized. By 2013, one in every twenty-eight deaths in the Netherlands was due to euthanasia—triple the number since 2002. In 2005, the Dutch government decriminalized euthanasia for babies, and some doctors are working to lower the age limit for requesting death on demand. The current cut-off is twelve years of age.
Thanks to a permissive regulatory regime that allows citizens to get help dying for an ever-expanding number of reasons, “the Dutch can now choose death if they’re tired of living.”
A look at Belgium should have given the Carter Court even greater pause. There, people suffering from depression and the psychological fallout of a botched gender reassignment surgery have been killed at their request under the country’s permissive regulatory regime.
The lack of prosecution in both Belgium and the Netherlands for doctors who assist suicides outside the law is a clear sign of a slippery slope sliding out of control. Regrettably, although the Court did receive an affidavit from an expert spotlighting these and other abuses, it was to no avail. The Court dismissed concerns about the potential for abuse by simply opining that “the permissive regime in Belgium is the product of a very different medico-legal culture. Practices of assisted death were ‘already prevalent and embedded in the medical culture’ prior to legalization. The regime simply regulates a common pre-existing practice.”
Missing from the Carter Court’s distinction is the acknowledgment that its decision creates an entirely different medico-legal culture in Canada by replacing a criminal prohibition of assisted suicide with a vague yet expansive right to die. If Canadian medicine is to escape the same fate as its Belgian and Dutch counterparts, it needs Canadian law to stand as an impregnable shield against abuse and error. Sadly, the nine people most responsible for standing guard have abandoned their post.
Ashton Ellis is a PhD candidate in political science at Claremont Graduate University. Previously he taught at Pepperdine University’s School of Public Policy.