Option 1
Option 1 is “the confirmation of the present legal position”. This is the position favoured by the SALC Report – no change to the law – which rests on the following point of departure: “Since the right to refuse medical treatment is far removed from the right to request euthanasia [assistance with dying] the Commission strongly endorses the right of the competent patient to refuse consent to medical treatment but holds that a law to permit euthanasia is unacceptable.”
Let us call the SALC’s view that there is a significant, perhaps unbridgeable, moral difference between refusal of potentially life-sustaining treatment and a request for assisted dying (assisted suicide and voluntary euthanasia), where the former is legally justified but the latter not, the “difference thesis”.
The difference thesis stands in opposition to the “equivalence thesis”, supported in this Position Paper.
The difference thesis cannot be merely asserted but needs arguments in its support. Nor can the matter be decided by majority public opinion, for the very same reasons that termination of pregnancy and abolition of capital punishment were not so decided.
Having committed to the difference thesis, the SALC Report puts forward four arguments against legalising assisted dying.
First, the “Commission is of the opinion that the arguments in favour of legalising voluntary euthanasia [assisted dying] as set out above are not sufficient reason to weaken society’s prohibition of intentional killing as entrenched in section 11 of the Constitution and which is considered to be the cornerstone of the law and of social relationships.”
Certainly, the right to life in the Constitution needs to be interpreted, taking account of life being at an end or not worth living (devoid of quality), and of the free and legitimate preferences of the person whose life it is. If assistance with dying would be unconstitutional, a law legalising it might be overturned by the Constitutional Court, if tested.
But what evidence does the SALC have for the claim that legalising assistance with dying would undermine the legal prohibition of intentional killing in general, thus eroding society’s commitment to the special moral value of human life?
If withholding and withdrawal of potentially life-sustaining treatment does not have that consequence, why would assistance with dying? Surely, the decisive consideration is that all of these practices would take place in a compassionate, humane, merciful and controlled medical environment. It has nothing in common with killing people because one intends to harm them.
One can understand that widespread breakdown of the civil order, in which murder is unchecked and, in the public eye, would weaken society’s prohibition against killing. But why would assistance with dying in a medical context, where compassion and mercy are the driving elements, have such an effect?
Without any supporting evidence, this argument has no merit. In fact, we have good evidence suggesting quite the opposite, namely, that when public policy is disrespectful of human life, then, far from eroding society’s commitment to the special moral value of human life, society might rally to the defence of human life. Thus, civil society went right up to the Constitutional Court to force government to change its policy in respect of mother-to-child transmission of the HI virus.
Second, the SALC Report argues that “[w]hilst acknowledging that there may be individual cases in which euthanasia [assisted dying] may be seen by some to be appropriate, these cases cannot reasonably establish the foundation of a general pro-euthanasia policy”. At issue is not whether such cases are few, but that every human being will die and may die, in the absence of a protecting and merciful law, while suffering intractable and unbearable pain and distress. Although exceptions indeed make bad law, the constant presence of terminal suffering is hardly an exception but part of the human condition.
Third, the SALC Report contends that “[i]t would be impossible to establish sufficient safeguards to ensure that euthanasia were truly voluntary and would not inevitably lead to involuntary and compulsory euthanasia”. This is a factual or empirical claim, in fact it amounts to three empirical claims about the efficacy of safeguards against possible abuse of decriminalised assisted dying, namely, that there is no way to determine whether safeguards designed to eliminate bad consequences or abuse would (1) ensure that a choice is truly voluntary; (2) prevent involuntary euthanasia; and (3) prevent compulsory euthanasia.
These claims can be rebutted. Factual claim (1) – we cannot determine whether a choice is truly voluntary – could mean that we are never able to “get into another’s head”.
If this is what is meant, then, of course, the whole of criminal law, premised on voluntariness, accountability and liability, would have its foundation taken from underneath it. Our everyday understanding, even of those closest to us, as well as psychology, would be in trouble.
Or is there somehow a difference between voluntary and “truly” voluntary and, if so, what might that be? Truth and justice would be better served if we trust our tested criteria of understanding other minds and applying them to requests for assistance with dying, rather than to treat such requests as somehow exceptional and beyond the pale.
As for factual claim (2) that foresees a real risk of involuntary euthanasia, we now have significant data that was unavailable in 1998, most notably from the implementation of physician-assisted suicide in the state of Oregon, where meticulous records are being kept and annual reports are open for scrutiny.
And there is new data from Western Europe, where, among others, the Netherlands decriminalised assistance with dying following a tacit public-policy understanding of non-prosecution for assistance with dying.
Factual claim (3) cites compulsory euthanasia as a possible unpreventable consequence of legalising assistance with dying. It is hard to imagine what this could mean other than a possible Nazi “euthanasia” scenario, with “compulsory” referring to the power of the state. This alarmist claim requires supporting evidence. Again, even holocaust survivors dismissed a suggestion of a similarity between the Nazi programme
