Physician-Assisted Suicide

Prior to the Carter decision, it was a crime in Canada to assist another person in ending his or her life. As a result, Canadian citizens who were grievously ill could not seek a physician's assistance in dying. In the opinion of the court, the criminal law left such individuals with a cruel choice between taking their own life prematurely, or a life of suffering until death occurred from natural causes. Framing the issue on appeal, the supreme court considered whether the criminal law violated individual rights to life, liberty, security of the person and equal treatment under the law. The issue therefore required the appellate court “to balance competing values of great importance ' the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition ' [as against] the sanctity of life and the need to protect the vulnerable.”

In 1993, the Supreme Court of Canada upheld the broad prohibition on assisted suicide in a 5-4 ruling, Rodriguez vs. British Columbia (Attorney General). Interestingly, the plaintiffs in both Rodriguez and Carter included patients diagnosed with Amyotrophic Lateral Sclerosis (ALS or “Lou Gehrig's Disease”). Each court record included detailed descriptions of the medical diagnoses and the emotional testimony of plaintiffs who had made carefully considered decisions to end their own lives on terms of their choosing. In 1993, the Rodriguez majority justified its decision based on several factors, including its conclusion that there was “no halfway measure that could be relied upon with assurance” to protect the vulnerable. Two decades later, the same court found that reform movements worldwide suggested otherwise.

In 2011, the Royal Society of Canada published a report on end-of-life decision-making, which recommended that the Criminal Code be amended to permit assistance in dying in certain limited circumstances. A similar report and recommendation was issued one year later by a committee of the Quebec National Assembly. More broadly, however, the Carter court observed that, by 2010, at least eight jurisdictions permitted some form of assisted death: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Columbia. Only one year after the 1993 Rodriguez decision, for example, Oregon enacted legislation to permit aid in dying for persons suffering from a terminal disease. A decision from Columbia's constitutional court upholding such assistance came next (in 1997), followed by legislation permitting physician-assisted suicide in the Netherlands (2002) and Luxembourg in 2009. In Carter, the Supreme Court of Canada found that “these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.”

The Decision

The Carter decision was justified on several key points of agreement with the trial court judge. The trial court first concluded that the prohibition on physician-assisted death forced some individuals to end their lives prematurely, “for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.” On this basis, the trial judge found that the right to life was in issue, and the Supreme Court agreed. The trial court also concluded that the criminal law limited the plaintiff's right to liberty and security of the person, as it interfered with “fundamentally important and personal medical decision-making,” thereby increasing potential stress, physical pain and also depriving the plaintiff of control over her bodily integrity. The Supreme Court agreed, observing that the law since Rodriguez “allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician's assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like [the plaintiff] to endure intolerable suffering, it impinges on their security of the person.”

The Canadian statute had also been challenged as overbroad, given its objective of protecting vulnerable citizens from being induced to commit suicide during a moment of weakness. At trial, the Attorney General conceded that the law “catches people outside this class” and that one plaintiff, for example, was clearly a member of this group. The trial judge found the plaintiff to be competent, fully informed, and free from coercion and duress. As a result, the Canadian high court agreed that the criminal law's limitation on physician-assisted dying “in in at least some cases not connected to the objective of protecting vulnerable persons. The blanket prohibition sweeps conduct into its ambit that is unrelated to the law's objective.”

On these grounds, among others, Canada's Supreme Court struck down the prohibition on physician-assisted death in cases where a competent adult: 1) clearly consents to the termination of life; and 2) has a grievous, irremediable medical condition that causes enduring suffering, intolerable to the individual in the circumstances of his or her condition.

In the U.S.

Will the Carter decision impact American law? Clearly, international law is not binding on courts of the United States, but American courts have considered foreign law to inform interpretations of certain state and federal constitutional law. In 1997, the United States Supreme Court ruled that state laws banning physician-assisted suicide did not violate the Constitution. At the same time, however, the Court paid careful consideration to the evolving dialogue and concluded its opinion in Washington vs. Glucksberg, 521 U.S. 702 (1997), stating: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

Less than six months later, Oregon enacted its Death With Dignity Act. A similar initiative became law in the State of Washington in 2008. One year later, the Montana Supreme Court's decision in Baxter vs. Montana, 2009 WL 5155363 (Mont. 2009), held that a physician prescribing aid in dying was protected from liability under that state's Right of the Terminally Ill Act. In 2013, Vermont enacted the Patient Choice and Control at End of Life Act into law. And most recently, the issue once again emerged nationwide with Brittany Maynard's decision, at 29 years of age, to end her life in Oregon following her diagnosis of terminal brain cancer. No such law existed in her home state of California.

Conclusion

The clear trend of recent decisions and legislation suggests that public acceptance of physician-assisted dying is growing, both here and abroad. In the opinion of this writer, the decision of Canada's Supreme Court in Carter vs. Canada will be carefully studied, and followed, by state and federal courts throughout the United States ' and probably sooner than many expect.

Michael D. Brophy, a member of this newsletter's Board of Editors, is a partner with Goldberg Segalla LLP, practicing out of the firm's Philadelphia office.

On Feb. 6, 2015, the Supreme Court of Canada issued a landmark ruling, overturning precedent only two decades after it held that Canadian citizens have the right to end their lives, but if done with the assistance of a physician, that physician could be held liable. This highly anticipated decision is expected to encourage the efforts of right-to-die advocates in the United States and abroad. This article considers the history of similar efforts in the United States, the reasoning behind Canada's high-court decision, and its potential impact on future litigation.

The Case

In Carter vs. Canada (Attorney General), a unanimous court held that Canada's criminal ban on physician-assisted suicide unjustifiably infringed upon individual rights.

Prior to the Carter decision, it was a crime in Canada to assist another person in ending his or her life. As a result, Canadian citizens who were grievously ill could not seek a physician's assistance in dying. In the opinion of the court, the criminal law left such individuals with a cruel choice between taking their own life prematurely, or a life of suffering until death occurred from natural causes. Framing the issue on appeal, the supreme court considered whether the criminal law violated individual rights to life, liberty, security of the person and equal treatment under the law. The issue therefore required the appellate court “to balance competing values of great importance ' the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition ' [as against] the sanctity of life and the need to protect the vulnerable.”

In 1993, the Supreme Court of Canada upheld the broad prohibition on assisted suicide in a 5-4 ruling, Rodriguez vs. British Columbia (Attorney General). Interestingly, the plaintiffs in both Rodriguez and Carter included patients diagnosed with Amyotrophic Lateral Sclerosis (ALS or “Lou Gehrig's Disease”). Each court record included detailed descriptions of the medical diagnoses and the emotional testimony of plaintiffs who had made carefully considered decisions to end their own lives on terms of their choosing. In 1993, the Rodriguez majority justified its decision based on several factors, including its conclusion that there was “no halfway measure that could be relied upon with assurance” to protect the vulnerable. Two decades later, the same court found that reform movements worldwide suggested otherwise.

In 2011, the Royal Society of Canada published a report on end-of-life decision-making, which recommended that the Criminal Code be amended to permit assistance in dying in certain limited circumstances. A similar report and recommendation was issued one year later by a committee of the Quebec National Assembly. More broadly, however, the Carter court observed that, by 2010, at least eight jurisdictions permitted some form of assisted death: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Columbia. Only one year after the 1993 Rodriguez decision, for example, Oregon enacted legislation to permit aid in dying for persons suffering from a terminal disease. A decision from Columbia's constitutional court upholding such assistance came next (in 1997), followed by legislation permitting physician-assisted suicide in the Netherlands (2002) and Luxembourg in 2009. In Carter, the Supreme Court of Canada found that “these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.”

The Decision

The Carter decision was justified on several key points of agreement with the trial court judge. The trial court first concluded that the prohibition on physician-assisted death forced some individuals to end their lives prematurely, “for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.” On this basis, the trial judge found that the right to life was in issue, and the Supreme Court agreed. The trial court also concluded that the criminal law limited the plaintiff's right to liberty and security of the person, as it interfered with “fundamentally important and personal medical decision-making,” thereby increasing potential stress, physical pain and also depriving the plaintiff of control over her bodily integrity. The Supreme Court agreed, observing that the law since Rodriguez “allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician's assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like [the plaintiff] to endure intolerable suffering, it impinges on their security of the person.”

The Canadian statute had also been challenged as overbroad, given its objective of protecting vulnerable citizens from being induced to commit suicide during a moment of weakness. At trial, the Attorney General conceded that the law “catches people outside this class” and that one plaintiff, for example, was clearly a member of this group. The trial judge found the plaintiff to be competent, fully informed, and free from coercion and duress. As a result, the Canadian high court agreed that the criminal law's limitation on physician-assisted dying “in in at least some cases not connected to the objective of protecting vulnerable persons. The blanket prohibition sweeps conduct into its ambit that is unrelated to the law's objective.”

On these grounds, among others, Canada's Supreme Court struck down the prohibition on physician-assisted death in cases where a competent adult: 1) clearly consents to the termination of life; and 2) has a grievous, irremediable medical condition that causes enduring suffering, intolerable to the individual in the circumstances of his or her condition.

In the U.S.

Will the Carter decision impact American law? Clearly, international law is not binding on courts of the United States, but American courts have considered foreign law to inform interpretations of certain state and federal constitutional law. In 1997, the United States Supreme Court ruled that state laws banning physician-assisted suicide did not violate the Constitution. At the same time, however, the Court paid careful consideration to the evolving dialogue and concluded its opinion in Washington vs. Glucksberg, 521 U.S. 702 (1997), stating: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

Less than six months later, Oregon enacted its Death With Dignity Act. A similar initiative became law in the State of Washington in 2008. One year later, the Montana Supreme Court's decision in Baxter vs. Montana, 2009 WL 5155363 (Mont. 2009), held that a physician prescribing aid in dying was protected from liability under that state's Right of the Terminally Ill Act. In 2013, Vermont enacted the Patient Choice and Control at End of Life Act into law. And most recently, the issue once again emerged nationwide with Brittany Maynard's decision, at 29 years of age, to end her life in Oregon following her diagnosis of terminal brain cancer. No such law existed in her home state of California.

Conclusion

The clear trend of recent decisions and legislation suggests that public acceptance of physician-assisted dying is growing, both here and abroad. In the opinion of this writer, the decision of Canada's Supreme Court in Carter vs. Canada will be carefully studied, and followed, by state and federal courts throughout the United States ' and probably sooner than many expect.

Michael D. Brophy, a member of this newsletter's Board of Editors, is a partner with Goldberg Segalla LLP, practicing out of the firm's Philadelphia office.