Article first pubnlished in SPIKED ONLINE on the 19th fo FebruaryUsing the language of freedom to justify on-demand death is Orwellian and dangerous.
When parliament is paralysed, the courts must act.' So said lawyer Joseph Arvay, representing the appellants in a case about the legal status of assisted suicide, at the Supreme Court of Canada (SCC) last October. The SCC now apparently agrees; last week it struck down the ban on assisted suicide and gave the government 12 months to draft a replacement law.
The decision, made in relation to the Carter vs Canada case, was unanimous. This is surprising given the contested nature of this issue in Canada. The previous landmark ruling, in the 1993 Rodriguez vs British Columbia case, was split 5-4 against upholding motor-neurone-disease sufferer Sue Rodriguez's right to be assisted to die.
In another sense, though, the ruling is not surprising. The chief justice Beverley McLachlin argued for upholding Rodriguez's 'right to die' in the 1993 case, and is the only justice from that era who continues to serve in the SCC. Similarly, Justice Rosalie Silberman Abella has written about how a preoccupation with civil liberties can impede human rights - pre-empting the court's tortuous logic last week.
The ruling highlights the trend towards an 'enlightened' elite imposing what it thinks is right over the heads of political representatives. The SCC is hardly democratic - the justices are all appointees and are chosen to represent the various regions. None of them have been elected to any office outside of their profession.
However, this will not stop proponents of assisted suicide from claiming there is democratic mandate for legalisation, quoting various polls that claim the public agrees with them. It is true that, in Britain, between 70 and 80 per cent of those polled support assisted suicide - and the numbers are only slightly lower in Canada and the US. However, genuine democratic mandate is harder to come by than superficial, off-the-top answers to polls. For instance, Oregon and Washington remain the only US states with assisted suicide implemented by ballot - and Oregon did so 21 years ago. There have been five failed ballot initiatives since then, most recently in Massachusetts in 2012. In all, there have been 140 failed attempts to introduce assisted suicide in the US.
As ever, the results to a poll depend on what question is asked. A 2013 Gallup poll in the US gave an indication of how people responded to different questions. Seventy per cent agreed when the question was: 'When a person has a disease that cannot be cured, do you think a doctor should be allowed to end the person's life in law by some painless means if the patient and his or her family request it?' However, only 56 per cent agreed when the question was phrased: 'When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?' No wonder the euphemism 'assisted dying' is preferred by advocates.
What advocates of assisted suicide really fear is any real discussion of the issue; their case falls to pieces when subjected to any real scrutiny. They rely on sad stories, on our instantaneous response to suffering. But, in parallel to the fact that doctors and especially palliative doctors oppose legalisation, the public, when forced to consider the case more broadly, tend to reject assisted suicide. (For a demonstration that even the most sophisticated assisted-suicide advocates lose support in an open debate, see Peter Singer and Andrew Solomon vs Ilora Finlay and Daniel Sulmasy.)
Support for assisted suicide 'without restriction', according to a poll of Britons in 2009, was 13 per cent. But, strangely enough, that is precisely the implication of the SCC's ruling. The court specified that an individual should be able to have an assisted suicide if they consented and if they suffered a 'grievous and irremediable medical condition (including an illness, disease or disability)'. As many have pointed out, that presumably includes psychological as well as physical suffering. Rather than the Oregon model, the Canadian judgement resembles the model of the Netherlands and Belgium, at least in its expansive categories. The path is now clear for any lovesick teenager, disabled person or depressed individual to request an assisted suicide, so long as they claim to be suffering grievously.
What is perhaps most shocking about the judgement is that this potentially monumental decision was based on some fundamentally flawed arguments. One particular assertion made by the court beggars belief: 'The prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.' There is simply no evidence to support this. In fact, there is evidence presented by advocates of assisted suicide in the UK that indicates legalising assisted suicide will increase the suicide rate among the terminally ill three-fold. A study of Danish cancer patients between 1971 and 1999 found that an estimated average of 31 cancer sufferers per year took their lives. If assisted suicide was legalised, the Oregon statistics suggest that the number would rise to 67. In other words, all evidence indicates that suicides will increase by a factor of two or three should legalisation occur. This crucial point, on which the court's decision was based, is simply wrong.
Another example of the court's shoddy thinking was the assumption it made that autonomy implies that the state must assist people to die. It doesn't take a jurist to see that though it is right to legalise suicide, so that no one has a duty to live, that does not imply that the state has a duty to assist suicide. Autonomy and bodily integrity mean that we have the right to prevent interference, not to demand it.
The court also ignored the opposition to suicide inscribed in the 1993 Rodriguez case, which established that: 'Parliament's repeal of the offence of attempted suicide from the criminal code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts.' Elsewhere, the Rodriguez case states that: 'To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose.'
Last week's ruling completely ignored the fundamental values noted by the Rodriguez case. Using torturous, Orwellian logic, the SCC has now defined the right to die as a natural part of the right to life. Therefore, the logic of the ruling was based on the idea that death is a part of life - it's not, it is the end of it - and that we must protect Canadians' right to life, liberty and security by killing people on request. Wow.
Of course, the SCC ruling will not lead to an instant change in law. It has simply issued a challenge to the Canadian parliament to set out and to clarify regulations and processes. And, as the issue is passed on to parliament, there are a few crucial questions that politicians need to consider. Do all Canadians have a right to be assisted in suicide that is, as the court suggests, abrogated by the prohibition on assisted suicide? If not, who does and who does not have that right, and why? How will Canada reconcile the belief in the dignity and worth of every human person with assisted suicide for only some and not all? Should Canada bring back execution of prisoners so long as they want to die? Good luck, Canadian parliament.
With this ruling, the SCC has opened up a Pandora's box. However, it can easily be closed if parliament chooses to invoke the notwithstanding clause, whereby parliament can override a decision made by the SCC. This is not an easy decision to make, but one that is necessary if the Canadian government wishes to uphold the equal value of human life and to ensure that, though suicide is legal, it receives no moral approval or assistance from the state.
Kevin Yuill teaches American studies at the University of Sunderland. His latest book, Assisted Suicide: The Liberal, Humanist Case Against Legalisation, is published by Palgrave Macmillan.