Legalization of Assisted Suicide and Euthanasia: Foundational Issues and Implications

This paper takes a general approach by examining foundational issues, and the primary focus is on a single jurisdiction: Canada. It outlines the current legal criteria for euthanasia and assisted suicide in Canada, identifying differences in criteria for the procedures set by the Supreme Court of Canada, Quebec’s unique provincial euthanasia law, and the Criminal Code. Commentary drawing from anecdotal reports from eight dissenting physicians offers some insight into their experience since legalization of the procedures. Material from the public record provides additional context, and the commentary is informed by difficulties that have arisen in relation to morally contested procedures. The experience of dissenting physicians is affected by a number of variables, including cultural and social dynamics, differing beliefs, differing moral and social sensitivity and individual personalities. Four sources of stress are identified: the demand for collaboration in killing, the prospect of punishment, the continuing need to distinguish between cooperation and collaboration, and concern for their patients. Particular concerns of palliative care physicians are discussed, as well as concerns shared by other dissenting physicians. A detailed review of the moral underpinnings of the trial court decision in Carter v. Canada demonstrates that morality precedes and drives law. From this it is argued that a judge will either assume or construct a moral justification that supports a decision, even if this is not explicitly articulated in legal reasoning. These assertions are tested against the ruling of the Irish High Court in Fleming v. Ireland & Ors, which came to radically different conclusions about the risks presented by legalization of assisted suicide and euthanasia. An extensive discussion distinguishes the obligation to kill from the more familiar authorization or justification of killing. An obligation to kill can be based upon a contract model of obligation, a social contract (professional) model, and a fiduciary model, each with increasingly serious consequences. To allow the state to enforce an obligation to kill under any of the three models is subversive of life, liberty and security of the person, even before issues of freedom of conscience and religion are considered. In addition, the implications of an obligation to kill suggest that, in the long term, assisted-suicide only regimes are likely to be unstable. Legislative developments demonstrate that the government of Canada supports totalitarian claims seeking total domination of will and intellect in moral decision-making, even in matters of life and death. The ground for this was prepared by demands that dissenting physicians should be forced to refer for abortion and contraception, which established popular support for the erroneous and incoherent principle that there can be a moral duty to do what one believes to be wrong. The Carter ruling formally ratified a new establishment orthodoxy, according to which refusing to at least collaborate in killing in circumstances defined by Carter is unacceptable. This new orthodoxy can be expected to operate at a foundational level, exerting a significant influence that may not be immediately obvious. A defense of freedom of conscience and religion must take this into account. In particular, the medico-legal establishment sees the exercise of freedom of conscience and religion through the dogmatic lens of the new orthodoxy. Dissenting physicians are viewed as heretics threatening an establishment theory of social contract. This is dogmatic moral imperialism, and not less so because the dogmatists are not ecclesiastical theorists and functionaries. It should be identified as such. Again, foundational moral beliefs shape jurisprudence. Judges should be challenged to candidly acknowledge and precisely articulate the philosophical or moral premises underpinning their positions. Similarly, what lies at the root of current controversies about freedom of conscience and religion is fundamental disagreement about the nature of the human person. Thus, judges should clearly acknowledge the credal concept of the human person that informs the evaluation of evidence and legal reasoning. Finally, freedom of conscience is exercised in two different ways. The first is by pursuing some good that one thinks should be done; call this perfective freedom of conscience, because the pursuit of the good as one understands it is thought to be perfective of the human person. The second is refusing to do what one believes to be wrong; call this preservative freedom of conscience, or preservative of personal integrity. No polity could long exist without restrictions of some sort on human acts, so some limitation of perfective freedom of conscience is not unexpected. On the other hand, suppressing preservative freedom of conscience by compelling people to serve ends they find morally abhorrent reduces them to a form of servitude that cannot be reconciled with principles of equality. It is inconsistent with the best traditions and aspirations of liberal democracy, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom. It arguably imposes upon them a particularly odious form of involuntary servitude, which is all but forbidden by the Thirteenth Amendment to the Constitution of the United States. This does not mean that no restriction can ever be placed on preservative freedom of conscience. It does mean, however, that if the restriction can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

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