Last week was the 27th anniversary of R v. Morgentaler, the case where the Supreme Court of Canada threw out abortion as a Criminal Code offense, declaring it unconstitutional.
Tomorrow, the top court could make as monumental a ruling as that one, when it releases its decision on assisted suicide. However the court decides, the impact will be felt by millions of Canadians, particularly the baby boomer generation moving into or already in their so-called golden years. Put simply, the court will be instruct Canadians on the legality (or not) of ending their own lives when suffering from a terminal condition, a decision as serious and also as personal and private as a woman's decision to abort her pregnancy.
How the court will rule is a guessing game. As the Canadian Press story earlier this week explained, the last time the court ruled on a similar matter was the Sue Rodriguez case in 1993. In a split 5-4 decision, the court upheld the law against assisted suicide.
This time around, the case was thrown into the lap of the top justices in the country after the B.C. Supreme Court ruled that the constitutional rights of terminally ill individuals supersedes the criminal law against assisted suicide.
The exact same sections of the Constitution used to justify a woman's right to abortion are being used to justify the right to assisted suicide. Section 7 of the Charter of Rights guarantees the individual right to life, liberty and security, while Section 15 guarantees the individual right to equality.
The connections to the Morgentaler case don't end there.
Variations on the same arguments that were used against overturning the abortion law in 1988 have all been dusted off for this case: doctors will be forced to comply or will be charged with discrimination; overturning the law will lead to the abuse of vulnerable individuals who will be coerced by others; the Supreme Court justices are making law, not following law; and overturning a law passed by Parliament infringes on the power and jurisdiction of the democratically-elected arm of government.
Those arguments were flawed then and they remain wrong and misleading now.
No Canadian doctor has ever been forced to offer abortions and no doctor will be forced to assist in the suicide of one of his or her terminal patients so that's a red herring.
The abuse argument, meanwhile, puts potential future regrets above present decisions freely made. A woman who has an abortion lives to regret their decision in later years and some day may pass blame onto others for that decision but no one lives to regret a successful suicide. That may be true but in the present tense, a competent woman who freely makes a decision to end her pregnancy is no different from the competent individual deciding to take active steps to end the suffering at the end of their lives. The decision is made at the moment, with the best judgment and information on hand at that time. Trying to account for future feelings an individual may have is a fool's errand and has no place, either in the decision itself or before the courts.
The "courts making laws, not following laws" argument is an old trick used by people when judges don't agree with them. In both the abortion and assisted suicide cases, the Supreme Court justices are deciding which law takes precedent - the Charter of Rights and Freedoms enshrined in the Constitution or the Criminal Code of Canada. The role of judges is to apply the law and that involves interpreting both the words and the spirit of the law. To say that judges make laws is as ridiculous as saying the chef "made" the meat, the vegetables and the spices in the stew.
This leads to the final point about a court made up of appointed judges overturning a law passed by democratically-elected representatives of the people. On the surface, it looks like democracy gone off the rails but it's actually one of the checks and balances in place to prevent the rules of democracy from being used against itself. The law prevents Parliament from passing laws that are themselves illegal and against the best interests of democracy, the country and its citizens. The law is the framework in which elected representatives work. While they have great latitude to create and pass laws, the Constitution and the Charter of Rights and Freedoms were created and enshrined to protect individual citizens from an overzealous government that says it knows what is best.
Time has shown that the Supreme Court of Canada made the proper decision in the Morgentaler case in 1988 and hopefully it will do so again Friday, taking personal and private health decisions out of the hands of government and placing the responsibilities with individuals, where they rightfully belong.
