Althouse: "The prohibition on physician‑assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice."

February 7, 2015

"The prohibition on physician‑assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice."

"The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad."

Says the Supreme Court of Canada, unanimously.

51 comments:

Sydney said...: The day they tell me I have to help people kill themselves is the day I quit medicine for good. I'll bag groceries for a living if I have to.; 2/7/15, 4:51 PM
Rob said...: Worthwhile Canadian initiative.; 2/7/15, 4:53 PM
MadisonMan said...: If a physician assists your suicide, what does your life insurer do?

I'm guessing there is no pay-out.; 2/7/15, 5:08 PM
Anonymous said...: They literally said that preventing doctors from helping people kill themselves infringes on the right to life? I don't know what astounds me more — the fact that we have now truly gone into Orwellian Newspeak territory. Or the fact that the phrase "right to life" was even allowed to stand anywhere, lest it remind people of... well... the right to life.; 2/7/15, 5:09 PM
Ann Althouse said...: "I'm guessing there is no pay-out."

The judgment is stayed for 12 months while the legislature regulates. I'm sure this will be on the agenda. Don't you think insurance companies want terminally ill people to opt to check out early?; 2/7/15, 5:12 PM
Ann Althouse said...: It's pretty easy to see this as part of the right to life... life as you, the autonomous individual, define it, which includes, necessarily, an end, and the ending of life is something that is done in life.; 2/7/15, 5:14 PM
ddh said...: The right to life requires a second person to kill you? So much for the Hippocratic oath.; 2/7/15, 5:18 PM
MadisonMan said...: Don't you think insurance companies want terminally ill people to opt to check out early?

Well sure, the medical insurer won't cry if you check out and stop charging for expensive procedures. I've always thought, though, that Life Insurance Policies were voided if a person killed themself. Is it different if a physician does it for you at your request?; 2/7/15, 5:25 PM
IgnatzEsq said...: "Don't you think insurance companies want terminally ill people to opt to check out early?"

This is in Canada though, the so insurance market is somewhat different. By and large health insurance is done by the state, so it's the Life insurance that is private. And paying money earlier (instead of collecting premiums) isn't in a Life Insurer's economic interest.; 2/7/15, 5:25 PM
Hagar said...: Do it yourself suicides tend to be messy.; 2/7/15, 5:26 PM
Ann Althouse said...: "Well sure, the medical insurer won't cry if you check out and stop charging for expensive procedures. I've always thought, though, that Life Insurance Policies were voided if a person killed themself. Is it different if a physician does it for you at your request?"

You just need the right legislation. What should it be? Life insurance policies are contracts. Contracts are subject to supervening law. These things must be worked out.; 2/7/15, 5:32 PM
Levi Starks said...: I fail to see the logic in the qualifying requirement that the person be suffering from a terminal illness.
Either the individual has the autonomy to end (with assistance) their life or they don't. Real rights don't come with caveats.; 2/7/15, 5:35 PM
Ann Althouse said...: "This is in Canada though, the so insurance market is somewhat different. By and large health insurance is done by the state, so it's the Life insurance that is private. And paying money earlier (instead of collecting premiums) isn't in a Life Insurer's economic interest."

These are good points. I don't know what the insurance market is like in Canada, but the point is, the regulations must iron this stuff out. Presumably, these suicides will only be permitted where the person has a terminal illness, so this will only involve people that had some misfortune, which is more like encountering other causes of death. You'd probably exclude people who already know they have the terminal disease when they buy the insurance.; 2/7/15, 5:36 PM
SteveR said...: Jack Kevorkian was unavailable for comment; 2/7/15, 5:36 PM
Michael K said...: The law allowing physician assisted suicide places great pressure on physicians. Twenty five years ago, when I last looked into the laws in Europe on this, a physician in Holland who admitted a chronic lung patient to ICU was fired. The patient was supposed to get a lethal dose of morphine IV in the ER.

Interestingly, assisted suicide was still illegal at the time but no one was ever prosecuted.

I have, with the agreement of the patient and family, allowed people to die. That is different. Those patients in Holland were not asked their opinion just as the Liverpool Pathway does not ask the patient for consent.; 2/7/15, 5:43 PM
mccullough said...: In the US, some argue the lethal drug dose is cruel and unusual punishment.

These will be the same people pushing for physician assisted suicide.

Soon enough it will be an over the counter drug.

I'm all for it, but think a bullet through the brain is a better way to do it.; 2/7/15, 5:54 PM
Hagar said...: Surer, and less hazardous to others than hitting a bridge abutment, but makes a mess on the carpet and may make the house difficult to sell.; 2/7/15, 5:59 PM
Lewis Wetzel said...: I am surprised that Althouse has not picked up on the word play involved in calling something "physician assisted suicide".
It's murder, plain and simple, the physician is killing the patient, the patient is not killing him or her self.
When a death row inmate assents to his exectution (I suppose that there are cases like that), we don't call it "physician assisted susicide". We call it execution.; 2/7/15, 6:02 PM
n.n said...: I wonder how many doctors will swear their honor and life to reject the Hippocratic Oath, or similar life-affirming ethical standard, and instead uphold the Pro-choice Oath.; 2/7/15, 6:05 PM
David said...: Althouse: "Presumably, these suicides will only be permitted where the person has a terminal illness, so this will only involve people that had some misfortune, which is more like encountering other causes of death."

In a world not so very long ago, it would have been presumed that in a democracy a policy decision like this would be made by the elected representatives of the people. Presumptions have always been mortal, but these days they die very easily.

It would be really interesting if the Canadian Parliament passed a law nullifying or contradicting the court's decision. We (and seemingly the Canadians too) presume that the highest court is the final say on constitutional issues. This presumption is also subject to revision, and at some point the courts may cross a line that subjects this presumption to overwhelming attack.; 2/7/15, 6:08 PM
Paul said...: LEAGALY you have a right to end your life if you want to but no right to expect someone to help you.

Morally, well that depends on your morals.

I'll try to talk you out of it, might even hide the weapon you intend to use from you, but ultimately it is up to you and YOUR God (if you have one.); 2/7/15, 6:13 PM
n.n said...: Terry:

It's a contractual murder supported and promoted by the State. One of two forms of legal contracts to assist the commission of premeditated murder. It's reminiscent of shooting a lame horse to put it out of its misery, or a crying baby that is unwanted and burdens its mother's lifestyle. Still, whereas the former may be an imbecile, the latter is wholly innocent.

Of course, even with moral principles recorded in law, the individual is still at liberty to end their life or smother the crying baby, in the "back-alley", with or without society's blessing and assistance.; 2/7/15, 6:19 PM
mtrobertsattorney said...: Suicide is "part of the right to life." And how "life" is defined will vary from one autonomous individuals to another.

But consider "A", he has a severe intellectual disability; he lacks any real autonomy. He is unable to define "life" for himself. So some other person will have to define "life" for him.

Since suicide is "part of the right to life", if this person choses assisted suicide for "A" based on his definition of life, he is simply respecting "A's" right to life.

Is there a problem with including suicide as "part of the right to life."; 2/7/15, 6:31 PM
David said...: The decision indicates that the Canadian Parliament had given close attention to this issue on several occasions since the Rodriguez decision 22 years ago. Based on the description, these appear to have been serious and open considerations of the issue. In each case the legislature declined to change the law.

I understand the logic of the decision. But we are headed in the wrong direction as we allow the courts to supplant the legislature in matters of important social policy. I realize that this point of view is increasingly quaint. However, as we have seen in the abortion dispute in this country, effectively eliminating the legislatures from the debate. The overall political and social consequences of this development have been corrosive.; 2/7/15, 6:38 PM
Anonymous said...: What evil this world contains. And we wonder at why a Holy God would flood it and kill the animals living here.; 2/7/15, 6:49 PM
Unknown said...: As a Canadian I can't help but wounder when my Government will decide to start thinning the herd. Each province is responsible for medicare, and will totally start offing people who are to old or sick to save money. In Quebec, they kind of do it know with waiting list.; 2/7/15, 6:49 PM
Mark said...: The prohibition on physician‑assisted dying infringes the right to life, liberty . . .

Since a dead person has no rights, what they are saying is that there is a right to have no rights?; 2/7/15, 7:08 PM
Lewis Wetzel said...: Althouse wrote:
"Presumably, these suicides will only be permitted where the person has a terminal illness . . ."
In the long run we are all terminal. Alzheimers is fatal. Average life expectancy following diagnosis is six years or so. Those six years are characterized by loss of cognition, isolation, etc.
At some point the state will decide that you are not capable of making the life/death choice yourself, and it will make it for you, to protect your human rights.; 2/7/15, 7:37 PM
CWJ said...: Althouse and MadisonMan,

Suicide is already covered. After 2 years suicide can not be used as a reason to deny death benefits. It's a good rule. You need some period of time to preclude fraud, but after 2 years it's presumed that any subsequent suicide was not part of the original motivation to seek coverage.; 2/7/15, 7:48 PM
Christy said...: In the old days it was not physician assisted suicide. They called it heart failure on the death certificate.; 2/7/15, 7:50 PM
n.n said...: As long as it's not a one-child or planned retirement policy, or some other obvious contradiction of the secular profits, liberal society will welcome it hook, line, and sinker.; 2/7/15, 7:54 PM
Mark Caplan said...: In all human history, no suicide ever regretted his decision.; 2/7/15, 7:59 PM
ken in tx said...: Lots of attempted suicides have regretted it.; 2/7/15, 8:10 PM
Marc in Eugene said...: There will be an effort by Catholics and others to attempt to defeat the purposes of the Court's decision but I'm not much hopeful that it'll succeed. 'Fundamental justice', pft. These man-made so called 'human rights', quite apart from their inherent immorality, deceive people into thinking that their 'fundamental rights' come from human legislators and jurists: but of course were that the case what was once given can be taken away.; 2/7/15, 8:54 PM
Anonymous said...: I think we the people are setting ourselves up for trouble when it will save the government money if you will just die already.

We won't have old people and we won't have babies. Just immigrants, I guess.; 2/7/15, 9:24 PM
Ann Althouse said...: "already covered. After 2 years suicide can not be used as a reason to deny death benefits"

Is that because of the government regulations or because it's in the terms of the policy?

I'm guessing it's the law.; 2/7/15, 9:34 PM
pm317 said...: I do support the idea of euthanasia (for myself if that is what I want) but am uncomfortable involving a second person like a doctor or other in it.; 2/7/15, 9:50 PM
Michael K said...: "how many doctors will swear their honor and life to reject the Hippocratic Oath,"

I think all medical schools have dropped the Oath from their curricula and ceremonies.; 2/7/15, 10:32 PM
Michael K said...: "In all human history, no suicide ever regretted his decision."

That is not actually true. Successful suicides is what you meant. There is pretty good evidence that most attempted suicides regret it.

My students, a few years ago, had the interesting experience of talking to a patient who shot himself in the head and missed ! The bullet was in his frontal sinus. He said he would not do it again.; 2/7/15, 10:35 PM
CWJ said...: It's in the terms of the policy, usually part of the incontestibility clause. Why are you pursuing this distinction? The important point is that the issue has been addressed.; 2/7/15, 10:40 PM
Ambrose said...: Makes sense from the country that invented hockey..; 2/7/15, 10:42 PM
retired said...: The US is not far behind. I'll make sure my hospital bed has a holster.; 2/7/15, 11:46 PM
Quaestor said...: It's pretty easy to see this as part of the right to life... life as you, the autonomous individual, define it, which includes, necessarily, an end...

Given the history of Jonestown, the Solar Temple, Heaven's Gate, and the Democratic Party I conclude that genuine autonomy isn't all that common. Too many people are far too easily led by the nose for me to be comfortable with even the oxymoronic concept of assisted suicide, let alone legislation to enable and regulate it.; 2/7/15, 11:51 PM
traditionalguy said...: The first tenant of Existentialism is that the final act of freedom is suicide.

No wonder Christianity is still popular among those that value their life. Anybody can kill themselves. It is not an act of courage.; 2/8/15, 12:02 AM
cb said...: " ...Presumably, these suicides will only be permitted where the person has a terminal illness,"

Nope.

The court’s ruling limits physician-assisted suicides to “a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
suffering includes either physical or psychological pain. The person’s condition need not be terminal.
http://news.nationalpost.com/2015/02/06/supreme-court-of-canada-strikes-down-ban-on-doctor-assisted-suicide/; 2/8/15, 1:31 AM
Quaestor said...: OK, here's a puzzler for the legal eagles: Suppose that our Supreme Court knocks down all state laws that prohibit assisted suicide. Now further suppose I give Ann Althouse permission to kill me because I'm in agonizing pain with no hope of improvement, and I trust no one else to do the job quickly and as painlessly as possible. I understand that she is an academic and not a qualified physician, yet no one else has my trust and confidence. Althouse refuses at first, but then relents out of the goodness of her heart, so she slays Quaestor with a 12 gauge slug right between the eyes at point blank range.

Is Althouse guilty of murder, or practicing medicine without a licence?; 2/8/15, 4:46 AM
Wince said...: The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness.

Is this a fundamental rights constitutional decision or a statutory interpretation/legislative intent case?

If the latter, where are the citations to the legislative history, etc.

If the former, framing the issue as a constitutional right to life-ending services provided by a third party seems nuts to me, whether it be abortion or physician-assisted suicide.

It seems a slew of activities are beyond regulation under that kind of constitutional logic.

For instance, did that constitutional principle have something to do with prostitution in Canada being legalized?

Now that I look it up, the answer, it seems, is yes.

And look at the confusing legal regime left behind:

On 20 December 2013, the Supreme Court of Canada found the laws prohibiting brothels, public communication for the purpose of prostitution, and living on the profits of prostitution to be unconstitutional. The ruling gave the Canadian parliament 12 months to rewrite the prostitution laws with a stay of effect so that the current laws remain in force. Amending legislation came into effect on 6 December 2014, which made the purchase of sexual services illegal, along the line of the Swedish Model.

While the prohibition of the activities surrounding the sex trade makes it difficult to practice prostitution without breaking any law, the act of exchanging sex for money has never been illegal in Canada, a situation which has created and continues to create confusion and controversy. The prostitution laws have been largely unchanged since the early 19th century despite frequent commissions, studies and constitutional challenges since the introduction of the Canadian Charter of Rights and Freedoms in 1982.

There is a general agreement that the status quo of prostitution in Canada is problematic, but there is no consensus on what should be done. There is an ideological disagreement between those who want to see prostitution eliminated (prohibitionism), generally because they view it either as an exploitative or unacceptable part of society, and those who view prostitution as a transaction between consenting adults and advocate decriminalisation. The term "sex work" is used interchangeably with "prostitution" in this article, in accordance with the World Health Organisation and the United Nations. However the Conservative majority Government of Canada is committed to a prohibitionist position, as laid out in its new legislation introduced in 2014.; 2/8/15, 5:44 AM
Roger Zimmerman said...: I support the right to contract with someone else to kill me, for the precise case where I am literally physically unable to perform the act myself. Of course, I should never be able to coerce (through state power) someone to do so.

But, assuming there are still some on this thread who disagree that I should have that right, but who broadly identify as libertarians, I would draw your attention to the pro-liberty judicial meta logic in this opinion: state power must not cast such a wide net as to limit the rights of those that are capable of independent thought and action. So much of today's do-gooder public policy is based on the opposite notion, that the government's role in protecting the vulnerable and incapable justifies limitations on everyone's freedom.

Were the Canadian Supremes' approach to take hold in America, I submit that whole classes of law and regulation would be candidates for narrowing, from drug laws, to insurance requirements to housing construction regulations (on one's own property).

I understand that our lawyers and judges are largely uninterested (and, possibly incapable, thanks to our concrete-bound educational system) in making inferences from principles such as this, but it's an intriguing thought, and a step in the right direction.; 2/8/15, 10:15 AM
Unknown said...: "Don't you think insurance companies want terminally ill people to opt to check out early?"
Ann in the case of Canada, the "insurer" is the govt & yes they too would want the terminally ill to check out early-reduce govt payout...; 2/8/15, 10:20 AM
Michelle Dulak Thomson said...: Since when is suicide a medical procedure?

It's not, honestly, all that difficult to kill yourself if you really want to. There are innumerable means. Guns, knives, poisons, drowning, single-vehicle car crashes, falls from high places ... Why must a second party be involved at all?

Oh, "dignity." Of course. The dead who haven't killed themselves with physicians' assistance are thereby "undignified."

The medicalization of this is like the medicalization of capital punishment. Radley Balko had an article the other day on that. He's against capital punishment, but nonetheless calls for bringing back the firing squad. I agree, both on the anti-capital punishment front and on the pro-firing squad one.

Screw "dignity" and focus on results. The result of a suicide is that someone is dead. And dead is dead.; 2/8/15, 1:46 PM
Patrick Henry was right! said...: All law is both over and under inclusive. Do they even have law school in Canada? More lefty death cult legislation from the folks who brought you eugenics.; 2/8/15, 9:46 PM