Voluntary assisted dying, also known as voluntary euthanasia or physician-assisted suicide (though all these terms have their own nuances), is a perennial issue dividing religious conservatives from secular liberals. In Australia, several legal jurisdictions have been engaging with the issue since the 1990s, and it is currently under consideration by the parliaments of two states. Meanwhile, the Voluntary Assisted Dying Act 2017 came into operation in Victoria, Australia’s second most populous state, on June 19, 2019. Victoria now provides a scheme for medical assistance in dying, though the legislation is highly bureaucratic and restrictive with more safeguards and hurdles than comparable laws in European and North American jurisdictions.
The main opposition to voluntary assisted dying comes from religious conservatives. Often their arguments are framed in terms of psychological pressures on vulnerable people. There are also references to violating—or undermining our sense of—the (alleged) mystery, dignity, and sanctity of human life. More surprising, perhaps, is the opposition from many disability rights activists. Again, we find references to human dignity and to the circumstances of vulnerable people, though the argument is also framed as involving invidious discrimination. Put briefly, the assumption is that laws against suggesting or assisting suicide provide us all with a valuable protection. If the protection is watered down for people who suffer from terminal illnesses, it’s said, they are being discriminated against relative to the rest of us. Not only that, it’s claimed that their inherent human worth is thereby denied or disparaged.
I find it hard to restrain my impatience with all such arguments; they strike me as contrived and even absurd. At the same time, it’s not an easy job sorting out exactly what is wrong with them. Individuals who rely on these arguments begin from assumptions so remote from my own that changing their minds on the issue might require changing their entire worldviews. Entire worldviews are, however, very difficult to overthrow—it usually requires someone going through a period of doubt, self-searching, and anxiety triggered by something more than a single counterargument. To be fair, opponents of voluntary assisted dying are unlikely, for similar reasons, to persuade me to change my mind. My support for voluntary assisted dying is embedded within a range of beliefs and values that I am unlikely to abandon easily.
I won’t try, in this short opinion piece, to change anyone’s mind about the fundamentals. It’s worthwhile, however, reflecting briefly on why we have laws against suggesting or assisting suicide in the first place, whether those reasons justify that there be no exceptions, and what exceptions, if any, might be desirable.
These are paternalistic laws protecting us from our own decisions. At least where the person committing suicide is a competent adult, all such laws are in tension with traditional liberal ideas that rule out legal paternalism. Consider, for example, the prohibition of murder, robbery, rape, and other actions forbidden by the core criminal law. Here, the policy rationale is not in any sense paternalistic. Instead, the law seeks to protect us from the acts of others whose choices lie outside our control. By contrast, merely suggesting or assisting suicide is not obviously something from which we need protection. We can protect ourselves simply by deciding not to commit suicide! So why do laws against suggesting suicide, assisting in suicide, and the like persist in modern liberal democracies?
The Canadian courts have produced a rich and impressive body of jurisprudence relating to voluntary assisted dying, culminating in a landmark 2015 case decided by the Supreme Court of Canada, Carter v. Canada (AG). Here, the court held that a blanket prohibition breached the Canadian Charter of Rights and Freedoms. The court’s judgment mandated reforms to allow for appropriate exceptions. Throughout the long-running debate in Canada, the courts have maintained that the purpose of laws against suggesting, inciting, assisting, or otherwise abetting acts of suicide is to protect individuals from being induced to kill themselves at a time of weakness. On reflection, this might be the best analysis. It might justify a narrow exception to the background presumption against legal paternalism. Where a bad decision has the enormity and finality of an act of suicide, it might seem especially important to have laws that tie our hands to some extent even if we are, in general, autonomous and competent people.
At the same time, laws such as this, even as they give us protections from our own bad decisions in our weaker moments, also intrude on our autonomy. We might hope, then, that they’d be framed no more broadly than is needed to achieve their purpose and/or that there would be a relatively low threshold for justifying exceptions to them.
When we reflect on the worst situations of terminally ill patients and the possibility of ending up in such situations ourselves, it is reasonable to fear too much protection against ourselves. Thus, public policy in a liberal-democratic society seems to favor some legal protection against our own suicidal thoughts and impulses at moments of weakness but also some relief from the relevant protections where they operate oppressively. It is not even obvious that a scheme of exemptions from the general law should be restricted to terminal illness: there might be other relevant situations, and this is currently a hot topic for debate in bioethics journals. At a minimum, however, we should try to ensure any framework applying to people with terminal illness is not too bureaucratic to be useful.
Many suicides are tragedies, and public policy needs to acknowledge and respond to this. In some situations, though, overly cautious lawmaking might hinder too many suicides that would not be tragic. This is a painful topic, but it’s unavoidable. It requires honest, if uncomfortable, discussion on where the lines should be drawn.