I don’t know Gloria Taylor of Kelowna, B.C., but I would have to be heartless not to sympathize with her. Taylor has amyotrophic lateral sclerosis (ALS), which is a disease that causes the degeneration of muscles, so that the person with ALS loses the ability to walk, eat, speak and finally breathe on their own. It’s a disease Taylor knows will kill her if something else doesn’t end her life first. Each day she lives, she experiences greater agony of body and mind.
“I intend to get every bit of happiness I can wring from what is left of my life,” she has said, “so long as it remains a life of quality; but I do not want to live a life without quality. There will come a point when I will know that enough is enough … There is no pre-set trigger moment. I just know that, globally, there will be some point in time when I will be able to say—‘this is it, this is the point where life is just not worthwhile.’ ”
Because Taylor has not been content simply to tolerate her decline, she has made Canadian history. She has gone to court, and for the first time ever, a Canadian court has ruled that a physician—Taylor’s physician, specifically—may intentionally and knowingly cause the death of his or her patient, with legal impunity. In a case known as Carter vs. Canada, the British Columbia Supreme Court said that her doctor may give her a “physician-assisted death.” If she is able to swallow a lethal dose of medication her physician supplies, she is to do that; but if that is beyond her physical capability, the physician may complete the act for her.
This would not be the first time a Canadian doctor caused his or her patient’s death. Sue Rodriguez, another B.C. woman, died a “physician-assisted death” in 1994. In that case, however, the doctor acted secretly and anonymously, because the Supreme Court of Canada had declared that such an action would be illegal. The doctor would have risked charges of homicide or assisting suicide if she or he had come forward.
But if this year’s lower court decision is not overturned, Taylor’s physician will not have to hide. He or she will—for the very first time in Canadian law—be able to say, “My patient wants to die and I am willing to make her death the goal of my action. I do not have to stand aside any longer and let her suffer. I do not have to palliate the symptoms of her disease. The court will let me end her agony by ending her life.” (A curious addendum: The court has said that if the doctor does this, he or she can sign the death certificate saying that Taylor died of ALS, not a dose of pills or a lethal injection. Why this should be a part of the judgment, I do not know. It seems to obscure precisely what the rest of the judgment wants to make clear.)
I am not a lawyer, but so far as I can tell, not much has changed in Canadian law since Rodriguez day, but we have seen changes in public attitudes, aided perhaps by (contested) reports that legalizing assisted suicide in Oregon, U.S.A., Switzerland, Belgium and a few other places has not created social chaos.
The judgment of the British Columbia Supreme Court is lengthy. At the risk of misrepresenting it, I will try to distill its key points.
The bottom line is that it holds that the present blanket prohibitions on homicide and assisted suicide in the Criminal Code of Canada are unconstitutional; that Parliament has one year to change the law; and that, in the meantime, Taylor is granted the legal right to protect a physician who causes her death at her request.
The court acknowledges that the lives of “vulnerable persons” (e.g. the young, the suggestible, the mentally ill) need very strong legal protection, but it does not think that everyone is “vulnerable” (Taylor being one example), and that non-vulnerable people do not need the state butting in on decisions about how they live and die. An absolute prohibition on causing a person’s death or helping them to end their own life is, the court ruled, overly broad.
In 1972, the laws against suicide and attempted suicide were removed from Canada’s criminal code. To those reviewing the law, it seemed ludicrous to set criminal penalties for suicide. Who, after all, is the state going to punish if the person who commits suicide is already dead? The reason for decriminalizing attempted suicide was different. By 1972, we had come to sympathize with those who tried to take their own lives. We ceased to regard them as deserving punishment. We saw them instead as unfortunate souls whose suicidal gestures were cries for help. We pitied those who no longer wanted to go on living, and thought we should offer them therapy, counselling and a change-of-life prospect in the hope that would bring them happiness. In Canada and elsewhere, The Salvation Army was among the first to offer suicide prevention helplines.
In the case before the courts now, what began as a compassionate response to suicidal unhappiness has been interpreted as a constitutionally protected permission to end one’s own life. Taylor’s lawyers presented suicide as a form of self-determination, a free choice about matters of deep personal significance. The sort of choice that a society such as Canada’s guarantees to its citizens. It may still be true, the argument goes, that many people who attempt suicide don’t really want to die, and that they should be protected in their vulnerability; but others like Taylor should be lauded for having the strength of will to do what others cannot.
Which brings us to a second part of the judgment in Taylor’s case. Not only is the present law unconstitutionally overbroad, it treats people unequally. The B.C. court said the laws against homicide and assisting suicide offend against the Charter of Rights and Freedoms’ promises that we will all be treated equally before the law.
Just how is Taylor being treated unequally? Here is my summary of what the court said. Each of us has a right to end our own lives at the time and in the way of our own choosing, but for people with ALS and similar disabilities, this is an empty right. Their bodies stand in the way of their doing what they have a legal right to do. We could as a society level the field, so the court determined, if only we let Taylor and others like her delegate their right and permit someone else to end their lives for them. (Why the court said the someone else must be a physician raises huge questions that cannot be addressed in this brief article.)
What shall we say? I believe the ruling that has come out of the British Columbia Supreme Court is profoundly flawed in many respects. Its flaw is not that it shows sympathy to people in excruciating torment. On that front, it is to be praised. Which of us would want to be confined to Taylor’s body? No one. Would that I had a solution for her that was easy or that would erase the agony she feels. I do not. Pray that God would provide an easier way.
My biggest problem with the ruling is that it denies the sanctity and inviolability of human life. It mistakenly equates the value of life with the quality of life. The relative balance of good and ill contained in a person’s life at any moment—important as it is—is not the whole of the story. If it were, it would not only be understandable but patently rational for Taylor’s doctor to say, “Here is a life I am prepared to end. I do not regret acting nor do I act under coercion. I do it on purpose. My patient’s life has been drained of its value, so her death is my goal.” But the life of a person is more than the quality of that person’s life. There is more to being human than that.
The Salvation Army’s position on euthanasia, assisted suicide and care at the end of life states that “human life is a sacred gift from God. Dignity is neither conferred nor withheld by human choice; it is inherent in each person.” Inherent value. Sacred gift. A trust from God. Is this language today’s public will understand or permit itself to use? I do not know. We are in uncharted territory. The mere assertion that human life is sacred, which the Supreme Court of Canada made as recently as their ruling in the case of Rodriguez, may no longer be persuasive on its own. How then shall we live? As our position statement goes on to say, we begin with ourselves: “As individuals and communities we are called to respect the sacred value of human life and at all times to show each other care.”
Dr. James E. Read is the executive director of The Salvation Army Ethics Centre in Winnipeg.