After Sue Rodriguez launched a legal fight in 1992 for the right to die on her own terms, the Supreme Court of Canada upheld the law that prohibits assisted suicide. Its main concern was that a relaxation of the ban could put vulnerable people at risk. This fall, more than two decades later, judges will once again consider the matter, with the Supreme Court hearing arguments in a constitutional challenge to the laws prohibiting assisted suicide and euthanasia. One of those arguments, as odd as it may seem, is that the prohibition violates a terminally ill person’s right to life.
Since the Rodriguez v. British Columbia decision, nine jurisdictions worldwide—the Netherlands, Belgium, Colombia, and Luxembourg; and, in North America, Oregon, Washington, Montana, Vermont, and, most recently, Quebec—have legalized some form of medically assisted death. In June, Quebec’s National Assembly passed a bill dealing with end-of-life care; among other things, it allows patients to ask their doctors for assistance in dying. It received all-party support, reflecting public opinion in the province. Indeed, the view across the country has remained strongly favourable ever since Rodriguez brought the issue to prominence. In August, even the usually conservative Canadian Medical Association stated, in a striking change of tone, that it “supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether to provide medical aid in dying.” Quebec acted on its own partly because the federal government, despite public sentiment, remains staunchly opposed to changing the law.
From two of those nine jurisdictions, Oregon and the Netherlands, we now have more than a decade of data showing how legalization has played out. In a nutshell: most patients who request help suffer from end-stage cancer; the number of such requests is quite low; and giving patients a choice has not put others at risk of coercion or manipulation. Had such information been available in 1993, the Supreme Court might well have reached a different conclusion in the Rodriguez case.
The British Columbia Civil Liberties Association launched the current case three years ago. The lead plaintiff, Lee Carter, feared prosecution for having accompanied her eighty-nine-year-old mother to an assisted suicide in Switzerland in 2010. The suit is named for her—Carter v. Canada—but the better-known member of the plaintiff team is Gloria Taylor, a residential care worker from Kelowna. Like Sue Rodriguez, Taylor suffered from amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and was seeking the legal right to assistance in ending her life at the time of her choosing. She died two years ago of an infection, but her arguments live on.
One aspect of Taylor’s reasoning highlights a notable difference between this case and Rodriguez. Section 7 of the Canadian Charter of Rights and Freedoms protects the right to “life, liberty and security of the person.” Rodriguez argued that the law prohibiting assisted suicide impaired both liberty (since a physician providing such help risked criminal prosecution) and security of the person (since she would be forced to endure unnecessary suffering until dying of her illness). Taylor added the further, seemingly paradoxical, argument that prohibition violated her right to life.
On the face of it, the claim seems preposterous. Given that the purpose of the law is to protect the lives of the vulnerable, how could it violate anyone’s right to life? The argument goes as follows: Taylor had a progressive neurodegenerative condition and wished to control the manner and time of her death, instead of letting her illness dictate her fate. She knew that, as her motor functions deteriorated, she would eventually be unable to bring about her own death. At that point, however, she might not be ready to die, judging that her life was still worth living. Allowing her to request assistance from a physician would therefore empower her to live beyond that point of personal incapacity, while still retaining control over her own death. Denying her that option would, conversely, force her to end her life while she still had the physical ability to do so. The law would deprive her of weeks or months in which she could still enjoy a life worth living; therefore, it violated her right to life.
Legal prohibition of physician-assisted dying may also shorten life in another way. Although most people who request medical aid in dying have end-stage cancer, their reasons for seeking assistance often are not what you might imagine. Now that we have highly effective analgesics, intractable pain is not generally the issue. Instead, many individuals cite loss of control as their concern. Being able to request a medically assisted death restores their sense of autonomy. Yet many people whose request is granted do not act on it, dying instead of their illness. Sometimes that’s because the end comes sooner than expected, but there may be another explanation. Having control may enable people to prolong their lives by providing them with peace of mind in the face of their condition. If so, a law denying them this power unnecessarily shortens their lives.
When the Carter/Taylor case was first heard in the Supreme Court of British Columbia in 2011, Taylor’s unique pro-life argument was accepted by Justice Lynn Smith, who held that the law did indeed impair Taylor’s right to life. That conclusion played a part in Justice Smith’s judgment, which struck down the blanket prohibitions against assisted suicide and euthanasia as incompatible with the Charter. The BC Court of Appeal overturned that decision, but the appellate court’s ruling was based on technical and procedural grounds; it did not address the substantive issues, including Taylor’s invocation of her right to life.
When the Supreme Court hears the case this fall, it will, for the first time, have the pro-life argument before it. This novel approach gives justices abundant reason to reconsider the issues. The accumulation of empirical evidence, especially from Oregon and the Netherlands, is further reason for them revisit the matter. Many pro-choice supporters are hopeful that the outcome will be different this time around; we will learn whether their optimism is warranted sometime next year.
This appeared in the November 2014 issue.