Why Choice is an Illusion?

Wednesday, May 18, 2016

Canada: Andrew Coyne: Who says the Supreme Court won’t change its mind on doctor-assisted suicide — yet again?


If the court could reverse its decision before, it may again
Suppose Bill C-14, legalizing euthanasia and assisted suicide, were to pass its expected vote in the House of Commons this week. What then?
Assuming it then passed in the Senate — perhaps a dangerous assumption — Canada would become one of the very few countries on Earth to make it lawful (that is by legislation) to kill someone with their consent. For now, eligibility to receive this service is restricted to mentally competent adults whose condition is “grievous and irremediable,” whose suffering, physical or mental, is “intolerable to them,” whose request is “voluntary,” and so on. For now.
But that would hardly be the end of it. Advocates of assisted suicide have already served notice they will challenge the legislation in court: because it does not apply to children, or the mentally incompetent; because it defines “grievous and irremediable” to mean, in part, that the patient’s “natural death has become reasonably foreseeable;” even for imposing a 15-day waiting period (since amended to 10).
They will not rest, in short, until there is an unrestricted right to [kill other people] death on demand. The question is what those opposed will do. Will they, at a minimum, resist these attempts to expand assisted suicide from the beachhead just established? To push further, will they be content, as their opponents are not, with the status quo as defined by C-14? Will they accept that assisted suicide should remain lawful in Canada, or will they assert the same right to relitigate the issue as its advocates?

There were some attempts in committee, notably by its Conservative members, to amend the bill: to protect the rights of doctors who refuse to take part, for example, or to set a higher bar for approving requests, such as a judge’s order. But it is far from clear what the party would do if elected. Already there is a motion before this month’s convention that would repeal the party’s previous stand against assisted suicide. Would dissenters later, as on other issues, be forbidden from bringing it up?
The argument will be made, as it has been before, that the Supreme Court has spoken, and that therefore there is nothing that can be done. That was not true when it came to abortion — the Court, far from decreeing that no abortion law could pass constitutional scrutiny, outlined precisely the sort of law that would — and it is not true now. Yet already the mythologizing has begun. It is asserted, for example, that although the Court, in Carter v. Canada, said nothing about whether “grievous and irremediable” meant terminal, it in fact meant that it could not be so defined; that the minimum condition was intended also to be the maximum.
This does not follow, but in any case it is bizarre to see the same people discover, in a ruling that was expressly limited to mentally competent adults, a right to assisted suicide for children and the mentally incompetent. Bizarre, but not necessarily wrong. It is difficult to say how this Court will rule on any given question, and indeed the Court’s own logic, in finding in the Charter’s “right to life” a right to death, redefined as relief from suffering, would leave it little room to refuse that relief on the basis of age or infirmity, when the case is brought. 
But that is not foreordained. For that matter, it is not a given that a law restoring the previous blanket ban on assisted suicide would be unconstitutional. I grant that the looseness of the Court’s reasoning in Carter would suggest it was determined to toss out the law, come what may, notwithstanding its own ruling upholding the law of just 20 years before, in the Rodriguez case. But pretending for the moment that Carter was based on legal grounds: if the problem with the old law was that it was overbroad — that is, that it went further than what was required to achieve its stated purpose — then either its means must be trimmed to fit its purpose or, as others have argued, its purpose might be restated in such a way as to fit its means. For it is not the Court’s business, as it has said many times, to inquire into a law’s purpose.
If, likewise, the court could reverse its own decision before, it may be persuaded to do so again. The justification offered for overturning Rodriguez was that in the interval the “matrix of legislative and social facts” had changed; that the fear that had justified the law then, namely that assisted suicide would otherwise come to be applied to a wider and wider expanse of the population, had been disproved by experience; or at any rate that whatever might have happened in Belgium and the Netherlands — where the numbers of those euthanized annually has skyrocketed, and where it is now available not only to children and the mentally ill but for the relief of all manner of ailments — could not happen here, on account of our differing “medico-legal cultures.”
But even if that were true at the time of the court’s ruling, it is clearly not true any more. The notion of extending assisted suicide to children and the mentally incompetent, once derided as “slippery slope” alarmism, is now the next item on the agenda. So it would be entirely open to the Court to find that the matrix of legislative and social facts had shifted again. 
I’m not saying it will. But it certainly won’t if it is not asked.