Autonomy and the 6th Commandment: Reflections on the Carter case (euthanasia at the Supreme Court)

21 October 2014

By EFC President Bruce J. Clemenger

Originally published 21 October 2014

First, Parliament has not been paralyzed. Several private members bills and several Parliamentary committees have looked at the issue over the past 20 years. None have concluded the law should be changed. Second, no one was contending religious views should trump rights; indeed the Supreme Court has previously ruled that laws specifically rooted in a sectarian belief are unconstitutional.

Yet the fear of the imposition of religious views is often raised in cases like these, often in an attempt to dismiss the arguments made by religious voices, arguments that have appeal beyond the faithful.

Of course it’s not religions that have the power to impose on the choices available to Canadians – it is the state in the form of the Criminal Code, which is itself a moral code. Instead of raising unfounded fears about religions imposing their views on society, it would be better to open public discussions on what principles will shape this moral code. In this debate about principles, religious voices certainly have a legitimate role to play in a free and democratic society, bringing their reflection, wisdom and practice to the stage of public and political discourse.

One of those principles that has been formative in Canadian law is the 6th commandment, not as a religious injunction but as a public principle that people from various traditions, religious and non-religious, affirm. Yet when “you shall not kill” is cited in this debate, it is usually heard as the imposition of a religious commandment upon a secular and post-Christian society; a rule based on a belief in God that violates the autonomy of the human person.

The commandment is not only designed to prevent us from killing others, but to protect all of us from being killed. “You shall not kill” is a warning to those who are angry with someone or who consider another to be an impediment to their aspirations, and at the same time solace to those who are vulnerable to someone else’s anger or being considered to be of lesser worth or value than someone else.

Some see permitting assisted suicide as enabling them to control the circumstances of their death. For them the issue is about their autonomy. They contend that exceptions to the law against assisting someone to commit suicide should be made for those who are near death, do not want to endure life and are physically unable to kill themselves.

Offering this exception is portrayed as a merciful response. However, to many who live with disabilities, who experience chronic pain and deteriorating conditions, they see the offer of an exception as a threat to their security – a a not-so-subtle expression of a conclusion that some lives, their lives in particular, are really not worth living and not worth the full protection offered everyone else.

The core argument for those seeking to change the law is the argument of autonomy for those who seek death. But it is not for the able-bodied that we are considering an exemption, though even the able bodied may desire death for a variety of reasons. Why create the exemption only for those with disabilities?

This point about the logical conclusion of the argument of autonomy was made by a few lawyers. Autonomy is about being sovereign and making your own choices about how to live your life. And, the argument went, since death is a part of life, autonomy is about making decisions about the how and when of your death.

The implication is that if the Court grants an exception to people with severe disabilities who are terminally ill and who decide their life is not worth living, what about anyone else who believes their life is no longer worth living and desires death?

On what grounds will you establish conditions for who qualifies if the primary reason for acceding to the demand is respect for the autonomous choices of the individual? Why should some have medical assistance in exercising their autonomy and others not? Would this not violate the equality rights of all Canadians?

And what of others who have a stake in the decision? The argument of autonomy is a very individualistic one that can marginalize the voices of family and friends.

The debate is currently about assisting in the suicide of someone who is terminally ill, near death and in pain. Yet in countries where it is permitted, the criteria used to decide who qualifies for the exemption inevitably expands to those who are not terminally ill but whose condition is deemed by others to warrant death. The claim to autonomy will challenge every barrier.

The import of the 6th commandment is to promote the preservation of life and the protection of the vulnerable. It conflicts with arguments of autonomy as it is premised on the understanding that complete autonomy is not part of the human condition. This debate is contentious because it goes to the very heart of our understanding of our humanity and the nature of a society.

Author: Bruce J. Clemenger