The courts and the impossibility of autonomy: Carter v Canada

Earlier this month the Supreme Court of Canada delivered its long-awaited decision in Carter v Canada, known to some as the “Death with Dignity Case.” The Court ruled that the Canadian Criminal Code’s blanket prohibition of assisted suicide violates section 7 of the Charter of Rights and Freedoms which guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The reader of section 7 might be forgiven for assuming that its wording would favour the protection of life in virtually all cases. Nevertheless, the justices decided that forcing a critically ill person to take her own life while she is still able to do so but before she would prefer is a violation of the autonomy of the person as ostensibly guaranteed by the Charter. The Court has suspended its ruling for one year to allow Parliament to craft a law that would address its concerns.

My friend Peter Stockland, of the Canadian think tank Cardus, has raised several important issues with respect to this ruling, especially his concern that, if Parliament fails to take up the Court’s challenge, this country could become literally lawless, as we have been for the last twenty-seven years with respect to abortion.

However, I would contend that the principal issue raised by this and similar rulings in both of our countries’ supreme courts is whether the quest for personal autonomy is a feasible goal for either legislatures or courts to advance. Does justice consist of giving everyone the maximum ability to fulfil their desires, whatever they might be? Do constraints on the ability to choose constitute oppression? Is it the task of our political institutions to liberate us from such constraints?

This would appear to be the accepted orthodoxy in this latest stage in the centuries-long development of liberalism, as I have described elsewhere. The U.S. Supreme Court’s judgment in Planned Parenthood v Casey (1992) claims to grant citizens an impossibly expansive right to autonomy in this oft-quoted passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Here the human will seems to be sacrosanct and is limited only by the requirement not to inflict harm on others. Yet attempts to flesh out the legal implications of this statement can only run aground because it ascribes to mere human beings godlike powers, which is, of course, the spurious promise given to our first parents. No society can long endure whose members think themselves gods, no matter how many courts rule differently.
 
For now the Court seems content to allow that no physician will be required to assist in providing the lethal means to a patient determined to die. But how long this régime will endure cannot be foreseen. Precedents elsewhere would seem to indicate that, if individual autonomy is the jealous god it has proven itself to be, no rights of conscience or religious freedom will be permitted to stand in its way over the long term.

But when does a person actually possess this autonomy to which he is said to have a right? We are constantly influenced by the people around us and the circumstances in which we find ourselves. I may feel emotionally down on a dreary day in November when the daylight hours are diminishing, yet I am likely to feel cheerful on a freezing day three months later when the days are lengthening, the sun is shining, and the snow is diffusing its light everywhere. My mood on each of these days will inevitably affect the decisions I make. If I am wise, I will postpone making important decisions until I am feeling better. But what if my capacity to access this wisdom is hindered by my dark mood, which for me often leads to a loss of appetite? What if it takes only a good meal to improve my emotional state, thus leading me to decide differently than I might have an hour earlier? When does my autonomy kick in?

This is a question no court can possibly answer, because, to be blunt, there is no such thing as autonomy. As one of the Reformation-era catechisms puts it, we are not our own. We do not belong to ourselves. We are created in God’s image, which entails a grant of limited authority under God’s sovereignty. Yet as Victor Lee Austin observes, to possess authority is to be under authority. We are embedded in a network of communities and relationships that inescapably condition our choices, and it cannot be otherwise. Perhaps no court is willing to acknowledge this reality, but it remains reality all the same. Only if our courts abandon this fruitless quest to advance autonomy can we hope for even a modicum of justice to be done, especially to those whose lives are at risk but also to those unwilling for conscience’s sake to end these lives. In the meantime, we have good reason to support the efforts of  the Euthanasia Prevention Coalition here in Canada and similar groups in the United States.

This post is cross-listed at First Thoughts.