By Drew MacEachern
Last year, the Supreme Court announced that the laws forbidding physician-assisted suicide were to be struck down. Just this week, the Court refined its decision by specifying that Canadians have a right to physician-assisted suicide. This was greeted with widespread celebration by many Canadians, and while I myself was not particularly upset with the decision, I couldn’t help but feel a slight disagreement with the whole affair. Unlike many others, I was upset with the continuing trend of important moral issues being decided by the Courts.
We have abdicated personal and social responsibility by throwing all the hard questions to the courts. Prostitution. Abortion. Euthanasia. All have generally been decided through judicial decisions and not by legislation. Why does this matter? Gone are the days where you could hear Diefenbaker or Pierre Trudeau talk about ‘One Canada’ or a ‘Just Society’. If all our value decisions are ultimately decided by the courts, then there is no reason, and actually a lot of political danger, in any politician running a value based campaign. This is actually quite damaging for our political system. A society is a community founded on a set of common ideas. But instead what we have are campaigns which don’t even attempt to hide the fact they are based in self-interest.
Now some people say that we need things like this in order to protect people’s rights from majoritarian impulses. A perfect example is the Court approving same-sex marriage or abortion. This is a fair point and one someone like myself has to deal with. However, this is not the whole story. There have been many distinct advances in Canada’s social legislation that did not rely on a court order. The abolition of the death penalty, decriminalization of homosexuality, bilingualism; all accomplished through the legislative and not the judicial process. Many times people associate a position like this with a regressive, reactionary position on social issues; considering some of the people who argue for my position, I can see why. However, it doesn’t have to be this way. You can achieve progressive policies through the legislative process. Sometimes, these progressive policies can even be challenged by the courts.
Let’s look at Medicare. Many Canadians generally like our public health care system. I think it’s safe to say that many also appreciate laws that prohibit private medical insurance, as a protection. However, the Supreme Court does not necessarily agree. In Chaoulli v. Quebec, in a 4-3 decision, the Supreme Court ruled that Quebec’s ban on private health violated the right to security of the person in the Quebec Charter. What’s more, three of those four judges also said that it violated the Charter of Rights and Freedoms. If the other judge had agreed, the ruling would have applied not only in Quebec but also in the other five provinces with similar laws, including Prince Edward Island. Most interestingly, there have been reports of several pro-private health care advocates that have or are planning to challenge Canada’s Medicare system in the Courts. Live by the sword, die by the sword.
This is, of course, is just part of a larger problem; the problem of rights discourse. I should clarify. I like rights; I like living in a society which says that I have certain rights that are protected. I do not like rights discourse; the style of public discourse where everything is justified in the context of rights. Why? In case it has not been clear, I am arguing that rights are social constructs. The idea of rights have not been constant throughout history. They are a relatively recent invention, and one that has generally been confined to Western civilization until even more recently. Now, unless you believe that there are God-given rights, there is only one logical conclusion. We made them up; there are no natural rights. Rights are not the end of the conversation, they should be the beginning.
To bring it back full circle, let’s look at euthanasia again. Why does it deserve to be looked at critically? The philosopher John Gray has written much about the religious influences on our worldviews; that our anthropocentricism and belief is progress are merely remainents of our Christian religious hertiage stripped of its transcendental dimension. It is safe to say that our ideas are influenced by the cultural background in which they form. Isn’t that the general idea around the concept of rape culture and the impermissibility of trivializing issues of sexual violence? It is because of that that we should be cautious about the impact of euthanasia. The idea that individual life is uniquely valuable and sacred did develop out of a religious, and in the West a specifically Christian context, one that informs a lot of opposition to euthanasia today. Would a change in this situation be bad? I’m not sure, but what I do know is that we should at least recognize this as a question that needs answers and not ignorance.
While some argue the slippery slope argument is invalid, I don’t completely agree. While it’s ridiculous to argue that an immediate change will result in doctors killing off the weak, or that any oversight is inadequate, it’s not that absurd to argue that if we start to move away from ideas predicated on the importance of human life as a concept then eventually that could change the moral framework from which we operate. Perhaps, had the change in law come about through actual public debate and resulting legislative change, we could have addressed this tension, recognized the less savoury potentials, and found an argument to proceed with euthanasia while not undermining the basic societal viewpoint that the prohibition on euthanasia re-inforced. In any situation, we shouldn’t delude ourselves that this is just a matter of ‘individual rights and autonomy’. Like most things, this is a deeply complex issue with societal repercussions that deserves a full hearing in the public arena.