Disturbing Canadian Euthanasia Case Paves Way for Similar Rejection of Conscience Rights in US

By Lynn Wardle | April 27, 2016 | 9:54am EDT
Linda Jarrett reads through notes at Dying with Dignity offices in Toronto, Friday, Feb. 6, 2015. Canada's highest court on Friday, unanimously struck down a ban on doctor-assisted suicide for mentally competent patients with terminal illnesses. (AP Photo/The Canadian Press, Chris Young)

Must individuals lay aside their deep personal values against participating in killing human beings when they become members of state-regulated professions such as the medical profession?  That is the question at the core of a controversy now erupting in Canada. 

A little more than a year ago, the Supreme Court of Canada struck down laws that banned physician-assisted suicide for patients with “grievous and irremediable” health conditions.  In Carter v. Canada, the top Canadian court unanimously reversed a 1993 decision that had upheld a law prohibiting doctor-assisted suicide.  The 2015 ruling struck down the assisted suicide ban as a violation of individual liberty.

The 2015 Canadian Court ruling in Carter also indicated medical professionals were not obliged to assist patients who wanted to die.  However, the Court deferred to the professional colleges that regulate the medical profession to protect rights of conscience.  Now it appears that the Canadian medical establishment is hostile to protecting rights of conscience.

For example, in an article published this month in the Journal of Medical Ethics, Dr Udo Schuklenk, a Philosophy professor at Queen’s University in Ontario, and his co-author, Ricardo Smalling (curiously, a member of the Geography Department) concluded that protection of rights of conscience (the right to decline to provide particular services because of the provider’s conscientious objection) has “no place” in the practice of medicine.

The authors assert that doctors who are unwilling to practice euthanasia or refer patients to another doctor who will perform euthanasia should find another job. Their rationale was: “It is implausible that professionals who voluntarily join a profession should be endowed with a legal claim not to provide services that are within the scope of the profession’s practice and that society expects them to provide.”

The conclusion is wrong and the logic behind it is deeply flawed.  The assertion depends upon three faulty claims.  First, doctors “voluntarily join” the medical profession so they have chosen to accept the obligation to assist in suicide.  The authors implicitly would exclude persons who are coerced into joining.  Of course, doctors are coerced to joining the state-regulated “profession.”  They cannot practice medicine without joining.  They have no choice.  They are compelled by law to join the state medical profession monopoly.

Second, the services are “within the scope” of what the profession allows.  That is a silly and defective argument. By joining the profession no doctor agrees to provide all of the services that the profession allows. No doctor is competent to do that, and reasons for incompetence to perform some procedures may relate to strong conflicts of interest, including conflicts with a doctor’s deeply-held moral beliefs.

Third, Professor Schuklenk asserts doctors should not be able to decline to provide any services that “society expects” them to provide.  That, also is nonsense.  Must doctors assist in executing convicts (capital punishment) if that is what “society expects them” to do?  Must they assist in performing gender-change surgery or female circumcision because a particular society expects those to be done? 

Dr. Schuklenk’s argument might have carried weight in Germany in the 1930s, where both governmental and prevailing social values supported the elimination of “undesirable” and “useless” persons – including their elimination by and with medical collusion.  As Dr. Leo Alexander described in his famous 1949 article, “Medical Science Under Dictatorship,” in the Journal of the American Medical Association, medical assistance in those practices easily and quickly slid into medical complicity in the ghastly holocaust.  

Dr Schuklenk’s article is worth noting.  He is the co-editor of Bioethics, and a professor of philosophy at Queen’s University, in Ontario, Canada.  His macho rejection of rights of conscience probably will influence some medical professionals and some professional bodies.

One of the strong arguments against legalizing assisted suicide is the “slippery slope” argument that erosion of the moral boundary against killing is very difficult, if not impossible, to contain. Denying equal protection of the laws to one class of human beings opens the door to denying equal protection of the laws to other persons. 

Another argument is the corruption point.  Allowing doctors, who are trusted as healers and protectors, to become assistant executioners to assist suicide (really active euthanasia) crosses a boundary that endangers all members of society.

A third obvious objection is that assisted suicide endangers the weak and vulnerable.  The aged, the infirm, the poor, and the lonely in Canada are the losers under Carter.  Their lives, liberties and protections have been diminished and they are much more vulnerable because of the Carter decision of the Supreme Court of Canada. 

It is ironic that the top Canadian institution of government designed to protect individual liberties has initiated and approved the greatest threat to vulnerable Canadians’ individual lives and liberties. 

While Canada may not be one of the bastions of liberty and bulwarks for protecting human rights, it is a very close neighbor to the United States.  What happens there often crosses the border.  The Carter decision adds pressure to the movement to legalize assisted suicide in the United States. Already five states (California, Montana, Oregon, Vermont, and Washington) permit physician-assisted suicide.  With the Carter ruling in Canada, that number of is likely to increase.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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