By Margaret Somerville
Bill 52, which defines euthanasia as palliative care and proposes adding it to end-of-life decision-making options, could be voted on later this month by the Quebec Legislative Assembly. And the Supreme Court of Canada has just given leave to appeal the Carter case, which involves a challenge to the constitutionality of the Criminal Code’s prohibition of assisted suicide.
Much ink has already been spilled on the pro– and anti-euthanasia arguments relevant to these initiatives, but there has been little discussion in the public square on the content of the “life concepts” that are informing this debate.
Justice Lynn Smith, the trial judge in the Carter case in the British Columbia Supreme Court, refers to seven of them: the right to life; respect for life; preservation of life; protection of life; sanctity of life; inviolability of life; and quality of life. These concepts are all related and some are often used interchangeably, but insights can be gained by examining her approach to each of them and their interaction with individuals’ right to autonomy.
Protecting and preserving life concern conduct in which we either must or must not engage. Sanctity of life and respect for it express our individual and societal values regarding life. Inviolability of life can mean all of these concepts, collectively, and establish them as absolute, that is, there are no exceptions.
In contrast, quality of life is used as a justification for exceptions both to the conduct these concepts require and to these values. The right to life upholds the individual’s claim to have his life protected and respected.
Justice Smith, however, converts the right to life, in section 7 of the Canadian Charter of Rights and Freedoms, to a right to assisted suicide. She rules the Criminal Code’s prohibition of assisted suicide “affects [Ms. Taylor’s] right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted.” (Italics used in all quotations to identify these concepts as mine.) On this basis, and that of discrimination against disabled people unable to commit suicide without assistance, she finds the prohibition unconstitutional.
The judge notes that “Canada says that the preservation of human life is a fundamental value in Canadian society and that respect for life transcends individual, religious and diverse cultural values. [But] Canada does not assert a state interest in the absolute protection of all human life.” She then concludes that the objective of the prohibition on assisted suicide “is the protection of the vulnerable who might be induced in moments of weakness to commit suicide.” This means, she says, that if vulnerable people don’t require this protection (as she rules Ms. Taylor does not) abandoning it in their cases does not contravene respect for life.
Justice Smith looks at respect for life almost entirely at the level of respect for the individual person’s life. She does not consider what is required to maintain respect for human life, in general, in society and at the institutional level, which could be quite different. For instance, how would legalizing physician-assisted suicide affect the institutions of law and medicine’s capacity to carry the value of respect for life for society as a whole?
Consistent with this approach, Justice Smith gives credibility only to the empirical evidence of the plaintiffs’ expert witnesses that the risks and harms to individuals of legalizing assisted suicide are negligible. (Note this is a factually wrong conclusion.) She dismisses most of the defendants’ expert witnesses’ testimony on the grounds it’s not empirically based.
Many of the risks and harms of legalized physician-assisted suicide and euthanasia at other than the individual level, are metaphysical (harms to values, beliefs, attitudes, norms and so on) not physical, and not necessarily assessable through empirical research. The exclusion of other valid and accepted research methodologies means that what can’t be measured or counted is disregarded.
Preservation of life can be distinguished from respect for life. The former is not always required, ethically or legally, and not preserving life by justifiably allowing a person to die a natural death, for instance, by withdrawing life-support, does not contravene the requirements of respect for life and is not euthanasia. Moreover, the prohibition of euthanasia does not imply a commitment to “vitalism”, the doctrine that life should be prolonged at all costs.
In both ethics and law, inviolability is often associated with consent. Inviolability of life could mean that one is not free to consent to having one’s life taken. The Criminal Code expressly enacts such a provision.
The judge sees prohibiting assisted suicide to protect “vulnerable persons from being induced to commit suicide at times of weakness”, as a valid goal grounded in “respect for and the desire to protect human life”. She states, however, that there is “no societal consensus supporting a principle of the absolute sanctity of human life but that there is a societal consensus supporting the principle of a person’s autonomy over his or her own body”. She rules that personal choice (autonomy) trumps sanctity of life.
Sanctity of life is, understandably, often associated with religion and that association is commonly used to dismiss claims based on it. Justice Smith notes that “the plaintiffs say that if the purpose of the law [prohibiting assisted suicide] is to uphold a particular religious conception of morality (about which there is not a consensus in Canadian society), it is an invalid purpose.”
The Report of the Committee of the National Assembly of Quebec on “Dying with Dignity”, like Justice Smith, adopts respect for individuals’ rights to autonomy and self-determination as the overriding value. One justification they give for this choice is the decline in adherence to religion. They write: “The value of the sanctity of life has undergone a significant transformation” relative to other values, which means that now it doesn’t necessarily take priority. They dismiss religion as having any valid role in the public square noting “that in a secular state like ours [in Quebec], the beliefs of some cannot be the basis for the development of legislation applicable to all.”
Whatever one’s views in that regard, respect for life (a preferable term to sanctity of life to avoid religious connotations and associations) is not just a religious value; it’s a foundational value of all societies in which reasonable people would want to live, as the Charter of Rights recognizes. It is foundational to what German philosopher Jurgen Habermas calls “the ethics of the [human] species” and I call “human ethics”, which must guide secular societies such as Canada.
Where we disagree in the euthanasia debate is what honouring respect for human life requires.
Those who equate loss of independence with loss of dignity believe that what they perceive as a quality of life not worth living justifies euthanasia. Those who see all humans as having dignity just because they are human, believe that respect for life requires that we do not intentionally kill another human being or help them to kill themselves, which means that euthanasia and assisted suicide must remain legally prohibited.
Margaret Somerville is the founding director of the Centre for Medicine, Ethics and Law at McGill University.