This month, the Canadian Supreme Court trampled democratic deliberation by unanimously conjuring a constitutional right to “termination of life” for anyone who has an “irremediable medical condition” and wants to die. Note the scope of the judicial fiat is not limited to the terminally ill: The ruling grants competent adults a right to die if they have an “illness, disease, or disability that causes enduring suffering that is intolerable to the individual,” including “psychological” pain.
Even these broad words inadequately describe the truly radical social policy Canada’s Supreme Court has unleashed. For example, 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.
Imagine the hypothetical Sally, with diabetes (or HIV, heart disease, neuropathy, early-stage cancer, you name it) that can be fully controlled by medication. She decides she wants to die (for whatever reason) and claims that available treatments are “not acceptable” to her. Presto chango, her theretofore treatable illness is suddenly an irremediable condition. Ditto Harley, who becomes clinically depressed after his business fails—a diagnosable “illness, disease, or disability”—and refuses psychiatric treatment in order to seek death.
But there’s more: The Supreme Court not only invalidated the federal law prohibiting assisted suicide for those with an irremediable medical condition, but also the law that states, “No person is entitled to consent to have death inflicted upon him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.” Hence the court created a right in the Canadian Charter of Rights and Freedoms to Dutch-style active euthanasia.
<>Doctors who morally object to killing patients might be forced to participate. The court gave Parliament 12 months to pass legislation consistent with its sweeping opinion, stating that “the rights of patients and physicians will need to be reconciled” by such legislation or left “in the hands of physicians’ colleges.”
That may leave doctors who embrace Hippocratic values twisting in the wind. Quebec, which legalized euthanasia last year, requires all doctors asked for death by a legally qualified patient to give the lethal jab or refer to a doctor who will. Professional medical societies in Canada also appear ready to quash physician conscience. The College of Physicians and Surgeons of Saskatchewan, for example, recently published a draft ethics policy that would force doctors with a moral objection to providing “legally permissible and publicly-funded health services”—which now include euthanasia—to “make a timely referral to another health provider who is willing and able to . . . provide the service.” If no other doctor can be found to do the deed, the original physician will be required to comply, “even in circumstances where the provision of health services conflicts with physicians’ deeply held and considered moral or religious beliefs.” In other words, a willingness to kill patients who want to die may soon become necessary to practice medicine in Canada.
What does this mean for the United States? First, Dutch- and Belgian-style euthanasia—in which psychiatrists can euthanize the mentally ill and general practitioners lethally inject the elderly “tired of life” and people with disabilities—has invaded North American shores. Since many Americans see our northern cousins as more socially enlightened, the ruling could ease the advocacy burden of assisted suicide advocates who work like termites to undermine Hippocratic values here.
On the other hand, the decision does have the virtue of honesty—demonstrating unequivocally that assisted suicide is not about “terminal illness,” as domestic advocates mendaciously contend. Indeed, Barbara Coombs Lee, head of Compassion and Choices (formerly the Hemlock Society) lauded the ruling enthusiastically in a press release:
We applaud and thank the Canadian Supreme Court for placing the patient at the center of fundamental end-of-life decisions. The eloquence of this ruling will inspire everyone who believes in individual freedom at life’s end. We in the U.S. agree that denying people the ability to determine their own medical treatments and the degree of suffering they endure curtails liberty.
If Compassion and Choices really believed that assisted suicide should be strictly limited to the terminally ill, it would have criticized the decision as going too far. (Showing her true colors, Lee has also strongly implied she would support euthanasia for Alzheimer’s patients unable to make their own decisions, saying, “It is an issue for another day but is no less compelling” than legalizing euthanasia for the competent terminally ill.)
Finally, what are the prospects for a U.S. Supreme Court ruling forcing euthanasia down our collective throat? Not high in the short term. Advocates blundered in 1997 by seeking an assisted suicide Roe v. Wade before the issue was ripe culturally, culminating in two 9-0 decisions denying a constitutional right to doctor-facilitated death.
But that should not make us sanguine. I expect assisted suicide advocates to pursue a jurisprudential strategy intended to give the Supreme Court a pretext for revisiting the issue: Obtain rulings by several state supreme courts creating state constitutional rights to “aid in dying”—cases have just been filed in New York and California, and one is on appeal in New Mexico—while working to legalize assisted suicide through democratic means. Once a critical mass appears to have formed, argue that the changed social and legal circumstances justify a second Supreme Court review. Indeed, that is precisely the advocacy approach that convinced the Canadian Supreme Court to reverse its 1993 ruling against assisted suicide.
Twenty-two years ago, there was no right to assisted suicide in Canada. Now, with the flip of a judicial switch, there is a right to active euthanasia. The Canadian Charter of Rights and Freedoms didn’t change during that time. The arrogance of judges did.