“Whereas the Parliament of Canada recognizes the
autonomy of persons who have a grievous and irremediable
medical condition that causes them enduring
and intolerable suffering and who wish to seek
medical assistance in dying…”
—Preamble, Bill C-14
Autonomy! That is the primary justification offered for the change effected by Bill C-14, which is to make what was formerly a criminal act – helping someone to commit suicide or actually doing the killing – one both legal and deserving of State support.
Section 14 of Canada’s Criminal Code currently states, “No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.” Section 241 adds that “everyone who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”
Sections 14 and 241 represent a traditional respect for the sanctity of life. They were invalidated last year by our Supreme Court in Carter v. Canada (2015 SCC 5). The heart of that judgment appears in the case summary, which observes that these sections of the Criminal Code deprive those with irremediable conditions, causing intolerable suffering “of their right to life, liberty and security of the person,” as guaranteed in section 7 of the Canadian Charter of Rights and Freedoms.
“The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the [Criminal Code] prohibition deprives some individuals of life, as it has the effect of forcing [them] to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”
The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care, and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.
I continue to marvel at the claim of the Court that one is unjustly deprived of life if one is resolved to kill oneself at some future point and finds that one must do so sooner rather than later because one fears that later one may not have the strength (i.e., the autonomy) to follow through on one’s own. What remarkable dexterity, which even the U.S. Supreme Court would be hard-pressed to match! The new logic of fear – fear of suffering – trumps the old logic of the sanctity of life. Suffering, not death, is the last enemy, and you may thwart it, if you like, by cutting your life short. Indeed, you have a right to thwart it and a right to be aided by agents of the State in doing so.
Let us set aside the fact that this transforms the concept of medicine, which is no longer the art of healing and/or accompanying but an instrument for eliminating suffering. Where it cannot do so to the satisfaction of the patient, by keeping her alive, it can (and upon request must) do so by killing her. In other words, if the suffering is not eliminated, then the sufferer will be eliminated instead. It does not take any great effort of mind to see that every patient – not only those determined to die rather than face suffering – stands in a different relation to medicine, so conceived, and to doctors, prepared thus to act, than was formerly the case. But it is not medicine itself but the notion of autonomy that requires the medical profession to submit itself to the legal profession that must concern us.
Autonomy! Or rather “autonomy and dignity,” for it is this hendiadys that lies at the heart of the judgment. A hendiadys is a pair of terms yoked together as a single idea. This one occurs in Carter at least half a dozen times, beginning in paragraph 2, where it is set against the sanctity of life: “On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.” What does it mean and how does it function? It functions, I dare say, as a hermeneutical key that guides the Court both in its appeal to the principles of fundamental justice and in its reading of prior law. As for what it means, we are told little but can glean a lot once we recognize that the Court has divested the word of its traditional meaning (the meaning it still had in Kant, for example) as self-rule through willing submission to the demands of reason.
In Carter, autonomy sometimes appears on its own, or in connection, say, with “control over one’s bodily integrity, free from State interference” (quoting Rodriguez, the Court’s 1993 decision upholding the same Criminal Code provisions that are here being struck down). But usually it is paired with dignity, and we hear, somewhat more expansively, of “personal autonomy and fundamental notions of self-determination and dignity.” Autonomy and dignity seems to mean not self-rule but rather self-determination. It is in self-determination that both autonomy and dignity reside. And that is how it can be set against, rather than within, respect for the sanctity of life (which is paired instead with the need to protect the vulnerable).
The Court reasons that persons have a right to life but no duty to live. This is so. Making an egregious error in logic, however, it equates not having a duty to live with not having a duty not to kill oneself. (That is, it conflates the possibility of refusing treatments that may prolong life with the possibility of choosing suicide – two very different matters, morally speaking.) It notes that suicide is no longer a crime, though we still find occasion to discourage it. It then proceeds to reread the law in this light and to assert that the purpose of the prohibition against aiding and abetting suicide (or performing euthanasia) is simply to prevent suicide from being chosen when people are vulnerable to making a poor choice (that is, when their powers of self-determination are at a low ebb).
Two observations here: First, and to its credit, the Court rejects an approach to the right to life that rests on quality of life rather than on sanctity of life. But “we do not agree,” it adds, “that the existential formulation of the right to life [by which it means the latter] requires an absolute prohibition on assistance in dying, or that individuals cannot ‘waive’ their right to life. This would create a ‘duty to live’ rather than a ‘right to life,’ and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment.” Utter nonsense. A duty to live, so construed, would also mean, for example, a duty not to sacrifice oneself for one’s family, neighbour or country. It would mean a duty not to take unnecessary risks and, yes, a duty to seek and accept any and all life-prolonging treatment. None of these things have ever been held to be implicit in the prohibition either on suicide or on assisting in suicide. The Criminal Code prohibition, as traditionally interpreted, did not create a duty to live; it recognized rather that deliberate self-destruction is a crime against one’s humanity and against one’s Creator, and so also against one’s fellow man. Even when this crime came to be regarded as a sin rather than as a crime – or in any event, as something not properly addressed by criminal sanctions – to aid and abet it remained a crime.
Second, “Canada agrees,” says the Court, “that the prohibition is intended to protect the vulnerable but argues that the object of the prohibition should also be defined more broadly as simply ‘the preservation of life.’ We cannot accept this submission.” On the contrary, “the object of the prohibition on physician- assisted dying is to protect the vulnerable from ending their life in times of weakness.” This, too, is nonsense. The Criminal Code prohibition intends both those things, but it does not intend either of them in the first instance. In the first instance, it intends to articulate and enforce in law a view of the sanctity of life to which the deliberate act of selfdestruction is repugnant. It remains repugnant even when it ceases to be illegal, as I have said; hence the prohibition against counselling it or assisting it. The Court does not consider this possibility because it no longer knows how to consider it. It knows only autonomy, not morals; therefore it ignores what is, in fact, fundamental to the prohibition and shifts its focus instead to the problem of suicide in times of weakness, declaring this and only this to be the concern of the prohibition.
Now that error in logic, by which the Court equates not having a duty to live with not having a duty not to kill oneself, throws the switch that allows the whole train of thought to proceed down that fateful track on which Bill C-14 will become the first legislative station. The Court goes on to observe that the prohibition on assisted suicide – of course, it prefers the euphemism “assisted dying,” and the even more perverse “medical aid in dying” – fails due to its over-breadth. For the prohibition is absolute, and so catches in its net those people who freely and competently resolve on suicide or, as needs be, euthanasia. That is their right, a right grounded in their autonomy and dignity. “Dying is a part of living,” and “an individual’s choice about the end of her life is entitled to respect.”
It seems fair to say that the Court not only understands our autonomy and dignity to reside in our selfdetermination but thinks of the latter as something entirely self-referential. To be sure, our “profound respect” for life and our collective “belief in the dignity and worth of every human person” ground the principles of fundamental justice. What they are themselves grounded in, however, no one seems to remember. Moreover, these commitments seem to lack specification or objective points of reference other than what is provided by self-determination. That is why they do not apply to the unborn and will likely not apply in the future to those with dementia, for example. At all events, they do not permit any collective judgment on suicide or euthanasia as good or evil acts. Rather, they require us to validate individual responses to the situation of suffering, whatever the response might be. For, as we have already heard, “an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy.” (The Court is not differentiating inherent dignity from merited dignity. No, it means that one’s response is integral to one’s self-determination and must therefore be respected as such.)
The Court concerns itself not at all with whether fear of temporal suffering, or the remedy of suicide, should be subjected to public moral scrutiny. One’s judgment in such matters, if more or less freely made, is self-authenticating. Neither does it worry about the fact that “the notion of personal autonomy involving…control over one’s bodily integrity, free from State interference” has morphed into a positive right, entitling one (on the grounds of one’s autonomy, no less) to state assistance. How does that happen? A simple little trick, really: suicide and euthanasia are dubbed MAID: medical aid in dying. We should not mistake this for an ordinary squeamish euphemism. The adjective medical guarantees universal access to services (at least it does in a socialist system such as ours) and patient autonomy in directing those services. So, abandonment of the duty not to kill oneself leads to abandonment of the duty not to kill another, and indeed to the obligation, under certain circumstances, of agents of the State (for such are doctors and nurses in that system) to kill another.
A simple trick, I say. But not just a trick. It is a decision, subconsciously taken, to change the moral law and so to change positive law, even if that means throwing rights into conflict, as such a move always does. The rights of patients who desire MAID now conflict with those of medical practitioners who don’t wish to provide it, and with those of the many other patients who would like to preserve medicine as the art of curing and accompanying patients who do not wish to be confronted with encouragement to request MAID or indeed to be treated by those who practise it. The devil is in the details, naturally, and not merely in the decision to change the moral law. Under what circumstances is the State obligated to support suicide or to kill? And how will these conflicting rights be balanced? Bill C-14 settles only a very small part of that and (as sent to the Senate) addresses the conscience problem not at all. The Court likewise has yet to do so.
I was not surprised to hear from a retired justice who sat on Carter that the Court finds freedom of conscience a notion quite opaque. Indeed, the situation is worse than that. Yes, freedom of conscience and religion is the first enumerated fundamental freedom in our Charter. But this, too, is a hendiadys, which we would not go far wrong to hyphenate. Freedom of conscience and religion may be fundamental, but it is fundamental only to the individual qua individual, rather than to the individual qua citizen. (Did not Rousseau already make that clear?) And the individual who claims this freedom is no longer appealing to something that the State recognizes as a higher form of law. For the State today does not acknowledge that there is any higher form of law than its own. It regards it a duty of its secularity that it should make no such acknowledgement. Conscience- and-religion claims have thus receded into the realm of the non-rational. They are not perspicuous to public reason and can be accessed legally only by a sincerity test; that is, they permit only a subjective judgment as to whether they are deeply and sincerely held.
Conscience-and-religion claims, at bottom, are just a subset of autonomy-and-dignity claims. Voices are now raised asking whether they add anything specific or particularly useful, or should be de-listed.
Otherwise put, one can no longer appeal to the fundamental demands of morality, for the State does not know what to do with moral questions. It knows only choices, choices that rest on the freedom of indifference. The choice for suicide stands on level ground with the choice against suicide. The choice to identify myself as a man lies on level ground with the choice to identify myself as a woman. Similarly my choice to marry another man. Such choices are not morally or even logically differentiable. They have no external ground at all. They are just different expressions of one and the same autonomy and dignity, or right to self-determination.
We may put this even more strongly. The preamble of C-14, recognizing as it does the autonomy of persons as the proper starting point for public reason in the matter of suicide and euthanasia, negates the already dead letter of the Charter preamble, severing at last the link between the supremacy of God and the rule of law. And where reference to the supremacy of God is no longer made, there really is no such thing as a conscience and religion right. That kind of language is just a veneer some people choose to put on their autonomy. When the Supreme Court gets round to balancing the new right to assisted suicide and euthanasia with the old right to freedom of conscience and religion, I expect to see it treating both as nothing more than instances of a more fundamental right to autonomy (which it will have to read into the Charter) and to find it concluding that limiting freedom of conscience and religion where it impinges on an effective MAID regime is justifiable in a free and democratic society.
Now, to make matters worse, we have before us another bill, C-16, further modifying the Criminal Code and the Human Rights Act, too, which will add “gender identity and gender expression” as prohibited grounds for discrimination. This bill will not kill, though it will corrupt. It will not kill, but it will encourage the mutilation of minds and bodies, driving some toward suicide. It will also drive the wedge deeper into the deadly split that is opening up in our society, putting many more people and professions in harm’s way when it comes to legal action. I, for one, will not adapt my pronouns or anything else to accommodate gender ideology, whether it is ensconced in the law or not. Will I be fired for professional misconduct, perhaps even sued for damages by someone who takes seriously the Pejic principle that “to be perceived as what you say you are is a basic human right”? Will my children or grandchildren be forcibly exposed to this absurdity? Will they fear to speak out against it, lest they be punished for discriminatory words or deeds? Or will people with a modicum of courage and good sense stand up and force the government to climb down?
The second bill is at least as perverse as the first, and the idea of autonomy operative in it is more bizarre. To seize control over your death, denying that your life is a gift and that you are accountable for it to God is an ancient sin, common enough among the pagans. It is a more or less profound act of despair to which (under different circumstances) various degrees of culpability attach and through which various harms are done. It is wrong, and anyone who chooses it willfully and knowingly chooses great evil; likewise anyone who aids or abets that choice. But to deny the truth of your body, to claim to alter reality by fiat, to demand that others accept that fiat as if it had real force or power – this carries autonomy, as self-determination rather than selfrule, to a new level. “I am who and what I will to be, and I have a right to be perceived as such.” Let us bow down and worship, for we are in the presence of a god!
Well, hardly. We are in the presence of a troubled soul who needs the compassion and the assistance that Mr. Trudeau’s bill cannot bring. But it will be criminal now to say so if one is the least bit careless in saying so. For law has become lawless, just as bodies have become sexless. We have no sex, which is given; we have only gender, which is chosen. Which means that, for legal purposes, we have no bodies. Which means, in turn, that we cannot be governed. We cannot even sort out whom to put in what locker room or in which washroom.
We are truly autonomous now. Only we are mad, quite mad. And we are led by the fine-looking, selfconfident madmen we elected, guided by a Court that found in the right to life, liberty and security a right to assisted suicide, and will no doubt find, in the name of autonomy and dignity, a right to gender identity and expression when it comes time for that to be tested.
What then shall we do? This is not a live-and-letlive regime. It is a live-and-let-die regime. Public opposition must die. Conscience must die. People, too, will die – some prematurely and in fear; others, by coercion. Still others will desire to die, having been misled by the hubris that goes under the label autonomy and dignity into personal contortions impossible to sustain. Society will become colder and crueller, not kinder and more compassionate. The State will become more tyrannical. All this is already happening, though to employ the dominical saying, “These are but the beginning of birth pangs.”
What shall we do, indeed? War has been declared. We must, therefore, go to war. War both spiritual and civil. Spiritual: seeking God for a new boldness in living and proclaiming the Gospel. Civil: translating the Gospel into political action that is difficult to ignore, including political action in the form of civil disobedience to unjust laws that attempt to coerce co-operation in evil and in the destructive policies of the government. We must not be reticent, and we must not be hesitant. We must tell the powers that be and show them, too, that we cannot and will not accept their autonomy doctrine. That we cannot and will not participate in the culture of death they are creating or permit their gnostic ideology to confuse and corrupt our children. We must insist on the right to run our own schools, with our own curricula, in our own fashion, and we must be prepared to refinance and reorganize them as necessary. We must insist on the right to our own health-care institutions, run according to our own principles. We, after all, were the ones who invented public education and health care, beginning with the labours of Saint François de Laval. We must insist on the right to reinvent them for ourselves and for those of our neighbours who desire to work with us, or to make use of what we provide, and we must insist on our fair share of the tax dollars directed to education and health care.
We must stop pretending that lawlessness is law and that, as law, it deserves our respect and obedience. We Catholics, especially, must stop this pretence. Listen to Leo XIII, in Rerum novarum (On Capital and Labour):
“There are occasions, doubtless, when it is fitting that the law should intervene to prevent certain associations, as when men join together for purposes which are evidently bad, unlawful or dangerous to the State. In such cases, public authority may justly forbid the formation of such associations, and may dissolve them if they already exist. But every precaution should be taken not to violate the rights of individuals and not to impose unreasonable regulations under pretense of public benefit. For laws only bind when they are in accordance with right reason, and hence, with the eternal law of God.”
That is from section 52, which Pope Leo further reinforces by appeal to Thomas Aquinas:
“Human law is law only by virtue of its accordance with right reason; and thus it is manifest that it flows from the eternal law. And in so far as it deviates from right reason, it is called an unjust law; in such case it is no law at all, but rather a species of violence.”
This is Catholic teaching, and Canadian Catholics must decide whether they are indeed Catholics or whether they are merely Canadians. They – no, we – must decide whether we are obligated and bound first by love for God, and second by love for neighbour, or whether we are obligated and bound chiefly by the will of Parliament and of the Supreme Court of Canada. We cannot have it both ways. We must choose and we must act. It may be that we can recall our neighbours and the once-great institutions of this country to their senses and to their former greatness. Or it may be that for now we cannot. But we cannot place the law of men above the law of God. We cannot obey men rather than God. We must choose, and we must act. We must pray, and we must pay. We ourselves must become pioneers, rebuilding our institutions, where necessary, from the ground up and in the face of envy and enmity from those around us. Desiring a better country that is the kingdom of God, we must seek also, pro tempore, the transfiguration of this faltering country in which we currently reside.
I leave you with these words from the Book of Nehemiah. (When did you last read Ezra and Nehemiah? Read them now: they are tracts for our time.) This is from the second chapter, where Nehemiah goes out to inspect the ruins of Jerusalem:
“Then I arose in the night, I and a few men with me; and I told no one what my God had put into my heart to do for Jerusalem. There was no beast with me but the beast on which I rode. I went out by night by the Valley Gate to the Jackal’s Well and to the Dung Gate, and I inspected the walls of Jerusalem, which were broken down, and its gates, which had been destroyed by fire. Then I went on to the Fountain Gate and to the King’s Pool; but there was no place for the beast that was under me to pass. Then I went up in the night by the valley and inspected the wall; and I turned back and entered by the Valley Gate, and so returned. And the officials did not know where I had gone or what I was doing; and I had not yet told the Jews, the priests, the nobles, the officials, and the rest that were to do the work. Then I said to them, ‘You see the trouble we are in, how Jerusalem lies in ruins with its gates burned. Come, let us build the wall of Jerusalem, that we may no longer suffer disgrace.’ And I told them of the hand of my God which had been upon me for good, and also of the words which the king had spoken to me. And they said, ‘Let us rise up and build.’ So they strengthened their hands for the good work.” (RSV)
Let us not be frightened by the dark or overwhelmed by the state of ruination into which our culture is descending. Let us not be afraid of the enemy, whether the fool with his faux compassion or the devil himself who has taught us to mistake for our proper autonomy and our true dignity his godless and rebellious autonomy and dignity. Let us not be afraid! Let us arise and build. Let us demonstrate what real autonomy means: not self-determination but self-rule under and for God. Let us show what true dignity means: to be recognized by God and to receive the honour that comes from God. Let us set out to restore the walls, to rescue from the acids of false autonomy the monuments and features of Christian civilization. What we build will be painful in the building; and it will not be so grand as once it was, but the glory of God shall come to it in due course.