Last week, the Supreme Court of Canada unanimously found a “right to die” in the Charter of Rights and Freedoms (the Canadian Bill of Rights). Under the ruling, the Canadian government now has 12 months to create a legal regime that allows patients suffering from grievous and irremediable medical conditions the right to end their lives with a doctor’s assistance.
It is arguably one of the most important decisions in the history of Canadian jurisprudence – but its impact in the United States is likely to be limited.
As in most “right to die” cases, the facts in Carter v. Canada are grim. The initial plaintiffs were Gloria Taylor, who suffered from ALS (amyotrophic lateral sclerosis, commonly known as Lou Gehrig’s disease) and Kay Carter, who suffered from degenerative spinal stenosis. Both are now deceased.
ALS is extremely rare, affecting only about 1 out of every 50,000 people per year. (To put this figure in perspective: That would equate roughly to one ALS sufferer out of the entire Yankee Stadium audience that watched Gehrig declare, on July 4, 1939, that he was “the luckiest man on the face of the earth.”) But sufferers of the disease have played an outsized role in Canadian right-to-die jurisprudence: In the early 1990s, an ALS-afflicted British Columbia woman named Sue Rodriguez launched a constitutional challenge against the ban on physician-assisted suicide. That litigation ended with a 5-to-4 Supreme Court decision upholding the prohibition.
The Rodriguez decision had been the law of the land in Canada for more than 20 years — until last week.
The slow, steady, agonizing manner by which ALS kills its victims helps explain why sufferers of this disease have been disproportionately prominent in the struggle for access to physician-assisted suicide.
As muscles degenerate during the initial stages of ALS, patients gradually lose the ability to initiate voluntary movement. After three or four years, bowel functions, eye movement and lung operation typically begin to fail, too — until such time as the patient dies by suffocation. During all this, brain and sensory function typically is unimpeded, so the patient experiences all of these horrors helplessly, but lucidly. It is not surprising that some ALS patients want to be spared these creeping horrors, and seek a way to die with dignity at a time of their own choosing.
It is this combination of mental competency with complete physical helplessness that makes ALS a grimly ideal case study for assisted-suicide proponents: Such patients can provide informed consent to their own death, but lack the means to accomplish the task on their own.
Taylor died peacefully from an acute bacterial infection in 2012 before her ALS proceeded to its final deadly phase. She was, in a morbid sense, “lucky.” As I have written elsewhere, her story shows how laws against physician-assisted suicide turn the act of dying into a bioethical lottery: Patients in the advanced stages of terrible diseases have to rely on some random pathogen to perform the mercy that a well-regulated medical corps should make available to us, if we wish it.
Last week’s Supreme Court of Canada ruling is persuasive precisely because it poignantly captures the wrenching dilemma faced by people who suffer from degenerative conditions such as ALS. The Court wrote that Taylor was left with the cruel choice “between killing herself while she was still physically capable of doing so, or giving up the ability to exercise any control over the manner and timing of her death.”
The Court continued, “[Other] witnesses described the progression of degenerative illnesses like motor neuron diseases or Huntington’s disease, while others described the agony of treatment and the fear of a gruesome death from advanced-stage cancer. Yet running through the evidence of all the witnesses is a constant theme — that they suffer from the knowledge that they lack the ability to bring a peaceful end to their lives at a time and in a manner of their own choosing.”
“Some [witnesses] describe how they had considered seeking out the traditional modes of suicide but found that choice, too, repugnant,” the Justices added.
By way of example, they quote one witness to the effect that “I was going to blow my head off. I have a gun and I seriously considered doing it. I decided that I could not do that to my family. It would be horrible to put them through something like that. I want a better choice than that.”
Legal developments in the United States contributed indirectly to this important moment in Canadian constitutional law. For many years, opponents of physician-assisted suicide have warned that patients may request to die at a moment of psychological weakness; or that they will overlook the possibility that their remaining time on earth will have meaning beyond that which they presently can imagine. (One example they might cite in this regard is Stephen Hawking, who suffers from a slow-progressing form of ALS.)
Perhaps most persuasively, assisted-suicide opponents have used the slippery-slope argument, claiming that any liberalizing in this area will lead to a nightmare society in which the old and infirm will be pressured by greedy, uncaring relatives to sign away their lives prematurely.
But the Supreme Court of Canada specifically cited Oregon, where physician-assisted suicide has been legal since 1997, to the effect that “a [regulatory] system can be designed to protect the socially vulnerable. Expert evidence established that the ‘predicted abuse and disproportionate impact on vulnerable populations has not materialized.’”
Will this Canadian Supreme Court decision help further the cause in the 46 states (all but Oregon, Vermont, New Mexico and Washington) where physician-assisted suicide is illegal?
In the short term, probably not.
First, Carter v. Canada was decided largely on the basis of Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to “security of the person.” There is no direct equivalent to that language in the U.S. Constitution (even if the due process clause of the 14th Amendment often has been stretched to cover this sort of bioethical terrain).
Second, in 1997, the U.S. Supreme Court stated clearly that assisted suicide is an issue for legislatures to resolve at the state level. And third, conservative U.S. judges generally are reluctant to give weight to foreign jurisprudence.
But in the long run, this month’s legal development in Canada can only help the cause. Opponents of physician-assisted suicide always have decried legalization as a reckless step into uncharted moral territory. But as more and more developed nations (Canada joins Switzerland, Netherlands and Belgium in legalizing the practice) permit the practice, that argument will lose its force.
In this way, a legal campaign started by two dying Canadians may have historic repercussions in legislatures, and hospital beds, all around the United States.
