INTRODUCTION

The consideration of jurisprudence and legislation respecting human life in the United States should begin with the jurisprudence of abortion since that jurisprudence has set the constitutional foundation for consideration of other life issues such as the right to physician-assisted suicide or euthanasia.The rationale supporting the abortion jurisprudence has evolved in recent decades.It has evolved from the articulation by the United States Supreme Court of a new doctrine of privacy in the 1973 case of Roe v. Wade to one centered primarily on personal liberty in the 1992 case of Planned Parenthood v. Casey. Moreover the Supreme Court's rationale in the Casey case regarding the nature of "liberty" has been suggested as the controlling principle for related questions of physician-assisted suicide and euthanasia although the Court has refused to so expand its doctrine of "liberty" to protect such actions.In Canada, the development of jurisprudence on these questions has been similar.In the 1988 case of Regina v. Morgentaler the Canadian Supreme Court invalidated that nation's liberalized abortion law enacted in 1969 holding that it violated the Canadian Charter of Rights and Freedoms protection of the "security of the person."The Canadian Court, like its counterpart in the United States, has also refused to extend its doctrine of "security of the person" to protect a right to physician assistance in seeking to commit suicide.National legislatures in both the United States and Canada have been unable to secure passage of either an amendment to the national constitution or more limited national legislation to reverse the abortion decisions of their respective supreme courts.

AMERICAN CONSTITUTIONAL RIGHT TO ABORTION IN ROE v. WADE

In Roe v. Wade, the Supreme Court struck down a Texas statute that protected the unborn child from the moment of conception and restricted abortion except when necessary to save the life of the mother. In doing so, the Court held that the right of privacy found in the 14th Amendment's term "liberty" protected the abortion decision and that the State's interest in protecting the developing "potential" human life before birth became compelling only after viability. The Court divided a woman's pregnancy into trimesters. It then measured the State's interest in regulating the abortion procedure on the basis of its interest in the potential human life in the womb - an interest that expands as the unborn child develops before birth.However, the State's limited interest, as recognized by the Court in Roe v. Wade, continues to be balanced against the responsibility to regulate the abortion procedure in order to lessen the health risks of the woman. During the first trimester, therefore, the Court held "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."During the second trimester, the State may regulate the abortion procedure but only to the extent that it relates to maternal health.During the third trimester, the Court appeared to give the State greater power to limit the abortion procedure on the basis that the unborn child was viable or nearly so stating that the State may "even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."1This language appeared to grant the State broad power during the third trimester to restrict abortion. However, in the companion case of Doe v. Bolton, in which the Court struck down Georgia's recently liberalized "therapeutic" abortion law, the Court defined maternal health in such a broad fashion as to allow the "health" exception to the State's power of regulation to, in effect, swallow up the general rule. The Court stated that the physician's "medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient."2

The Court in Roe v. Wade relied in large measure upon contentions that were historically inaccurate or at least doubtful. One such contention was that the primary motivation for the enactment of anti-abortion laws in the United States during the 19th century was that the abortion procedure "was a hazardous one for the woman" and that concern for the life of the unborn child was only a secondary and minor consideration.Another contention was that the term "person" as used in the 14th Amendment could not have application to the child before birth.

Roe v. Wade failed to gain widespread acceptance as a legitimate exercise of judicial power and its rationale supporting a constitutionally protected right to abortion has remained controversial among American legal scholars.Federal Judge John T. Noonan, Jr. summed up this attitude towards Roe when he wrote: "The liberty established by [Roe v. Wade and Doe v. Bolton] has no foundation in the Constitution of the United States. It was established by an act of raw judicial power. Its establishment was illegitimate and unprincipled, the imposition of the personal beliefs of seven justices on the women and men of fifty states. The continuation of the liberty is a continuing affront to constitutional government in this country."3

Other jurists attacked the decision from the standpoint of its own internal logic and the fact that advances in medical technology rendered obsolete the legal approach of Roe v. Wade.Supreme Court Justice Sandra Day O'Connor observed: "The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.... Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe.4

ROE v. WADE AND AMERICAN LEGAL HISTORY

The decision to impose upon the fifty states the legalization of abortion with virtually no restrictions throughout pregnancy made in Roe v. Wade remains a matter of great public debate within the United States.Even in 1973 when the decision was announced, it was apparent that the effort to gain nationwide legal acceptance of abortion through democratic means had lost momentum.Beginning with Colorado in 1967 and continuing through the popular referendum in WashingtonState in 1970, a number of states enacted liberalized abortion laws. However, during 1971, not one state repealed or amended its law although 30 legislatures considered legislation to do so. The next year, Connecticut adopted restrictive provisions, and the New York legislature repealed the liberal law it had enacted in 1970 (although the governor vetoed the proposal). Also in 1972, North Dakota and Michigan voters rejected proposals to liberalize their abortion statutes by wide margins in popular referenda. Since 1973, many state legislatures and local communities have sought in a variety of ways to limit the reach of Roe v. Wade.At the national level, Congress has moved to restrict government funding of abortion through the national health care program, Medicaid, and other health programs to only those cases where the life of the mother is endangered or the woman's pregnancy resulted from rape or incest. Committees in both the Senate and the House of Representatives have conducted extensive hearings on legislation to overturn Roe in 1975, 1976, 1978 and 1981. The decision has been the focus of constant legal criticism and political controversy because of the Court's refusal to consider the evidence of the humanity of the unborn child and because of its repudiation of nearly a century long tradition of laws restricting abortion.

Prior to 1973, the humanity of the unborn child was at the center of state action regarding abortion. Although a comprehensive review of the common law treatment of abortion is not possible here, it is worth noting that significant changes in the law's treatment of abortion occurred as a result of changes in medical knowledge. The first major legal change occurred as a result of the discovery in 1827 of the nature of conception. The first criminal statute prohibiting abortion in the United States was enacted by the Connecticut legislature in 1821. Prior to that time abortion was considered a serious criminal offense under Anglo-American common law. Under the laws of England, according to common law commentators such as Lord Coke and Matthew Hale, abortion, while not murder, amounted to a "great misprison" and was a "great crime," if the woman "be quick or great with child."Some have argued that the term "quickening," that is, the point during pregnancy when the mother is able to feel the movement of her unborn child, was at common law a substantive distinction. They assert that the common law had made a "policy" decision that it was only at this stage in the development of the unborn child that criminal liability for abortion should be imposed. The Supreme Court in Roe v. Wade adopted this interpretation and it provided a kind of symmetry with the trimester approach developed by the Court. The better view, however, is that "quickening" was utilized at common law not as a substantive test but as a practical test to determine whether the prosecutor in a criminal case could prove there had been an assault upon a live human being in the womb and, if so, whether that assault had caused the child's death. "Quickening" was more likely viewed at common law as an evidentiary test to prove that but for the intervening action of the defendant the unborn child would have continued to live, that is to say, would have remained "quick".This interpretation more satisfactorily explains why it was that the law changed so quickly and abandoned the "quickening" distinction once medical science better understood the reality of human conception and the development of the child before birth.

"At all times, the common law disapproved of abortion as malum in se and sought to protect the child in the womb from the moment his living biological existence could be proved."5Thus, in England, when the common law crime of abortion was codified by statute in 1803, the term "quickening" remained the dividing line, not as the threshold of whether an offense had been committed, but of the severity of the offense. When the woman was "quick with child," the offense was punishable by death; otherwise it was a felony punishable by imprisonment, fine, whipping, pillory, or transportation to a penal colony for up to 14 years.6

Unquestionably, the 1803 English law was consistent with the accepted medical knowledge of the time. Thomas Percival, who in the same year published his work on medical ethics, strongly condemned abortion and argued for protection of the unborn child from "the first spark of life." When in 1827, the nature of conception was more fully understood, the law soon followed the advance of science. Parliament enacted a new law on abortion that deleted the "quickening" distinction and provided for uniform penalties for abortion regardless of the stage of pregnancy. By 1838, an English court reinterpreted the common law rule prohibiting the execution of a woman "quick with child" to apply to a time prior to when the woman would actually feel the child's movements. The court stated: "'Quick with child' is having conceived.'' American courts also readily abandoned the "quickening" distinction in their attempt to remain current with scientific progress. The basic American text on medical jurisprudence during the l9th century stated: "the fact is certain, that the fetus enjoys life long before the sensation of quickening is felt by the mother. Indeed, no other doctrine appears to be consonant with reason or physiology, but that which admits the embryo to possess vitality from the very moment of conception."7

The 1859 report of the Committee on Criminal Abortion of the American Medical Association (AMA) described abortion as "the wanton and murderous destruction" of the unborn child. The AMA's unanimous acceptance of the committee's resolution calling for the revision of abortion laws was unquestionably the single most important cause of the transformation of abortion law in l9th century America. Nearly a decade later, the chairman of that AMA committee, Dr. Horatio Storer, summarized the rationale of these new statutes: "Physicians have now arrived at the unanimous opinion, that the fetus is alive from the very moment of conception.... The willful killing of a human being, at any state of its existence, is murder.... Abortion is, in reality, a crime against the infant, its mother, the family circle, and society."8

The action of the AMA produced quick results from state legislatures. For example, one year after the Committee on Criminal Abortion issued its report, Connecticut amended its abortion law to delete the "quickening" limitation. The AMA action also affected the activity of state medical societies as well. For example, in 1867, the New York Medical Society condemned abortion at whatever gestational age as "murder."By the end of the century, virtually every state had enacted legislation substantially restricting the performance of abortion.9

PERSONHOOD, ABORTION AND THE AMERICAN CONSTITUTION

The 19th century reform of abortion law is constitutionally significant because it took place contemporaneously with the adoption by Congress and the ratification by the states of the 14th Amendment to the Constitution with its protection against state violations of a person's right to life, liberty and property without due process of law. An especially significant development during this same time was the enactment of criminal abortion statutes in the FederalTerritories of Arizona, Colorado, Idaho, Montana, and Nevada, because territorial legislation was subject to the approval of the Congress. These state and territorial abortion laws were part of a broader development in American jurisprudence to afford legal protection to all those who were recognized as biologically a human being.This history suggests that the congressional drafters of the 14th Amendment "intended to establish a definition or concept of human beings based upon biological reality and common sense or scientific truth. In the view of the drafters of the 14th Amendment, whoever is a human being in fact is a human being or person in law."10There is no evidence that the framers of the 14th Amendment disagreed with the anti-abortion statutes that were being enacted in the 19th century. On the contrary, as Justice Rehnquist observed in his dissent in Roe v. Wade, "By the time of the adoption of the 14th Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. [The] only conclusion possible from this history is that the drafters did not intend to have the 14th Amendment withdraw from the States the power to legislate with respect to this matter."11

If the law's obligation to treat as a human being that which science demonstrates to be a human being was a central concern during enactment of restrictive abortion laws in the 19th century, it remained an issue in the 20th century when states began to relax those restrictions. Perhaps the clearest example can be found in litigation following the revision of New York's law in 1970.The case of Byrn v. New York City Health and Hospital Corporation challenged the 1970 statute permitting abortion within the first 24 weeks of pregnancy as an unconstitutional deprivation of life of the unborn child.12The Byrn case presented extensive expert testimony regarding the development of the child before birth "in order to present to the court a composite picture of the unborn child as, in all factual respects, a live human being, no different qualitatively from his post-natal sibling." The evidence proved convincing. The New York Court of Appeals held that "It is not effectively contradicted, if it is contradicted at all, that modern biological disciplines accept that upon conception a fetus has an independent genetic 'package'.... It is human ... and it is unquestionably alive."The court held, however, that the resolution of that question was not determinative. It posed a further question, "whether a human entity, conceived but not yet born, is and must be recognized as a person in the law."The court then held that "it is a policy determination whether legal personality should attach and not a question of biological or 'natural' correspondence."Citing the legal philosopher Hans Kelsen, the court observed: "What is a legal person is for the law, including, of course, the Constitution, to say, which simply means that upon according legal personality to a thing the law affords it the rights and privileges of a legal person."

Apparently the Byrn case presented the question of the humanity of the unborn child and its claim to legal personhood too directly for the U.S. Supreme Court, which refused to hear the case on appeal. Until the early 1970s, American law generally treated the child before birth, as a legal entity with protectable interests whenever doing so would be in the child's interest.13 It was perhaps inevitable that a reversal of that trend would directly raise the question of the obligation of the law to treat as a legal person that which is recognized biologically as a human being. The New York Court of Appeals in Byrn decided that the issue could be resolved as simply a policy determination.That result remains profoundly unconvincing to those committed to a legal order grounded in the recognition of fundamental human rights. Indeed, the 13th and 14th Amendments themselves testify that the rejection of this positivist approach to legal personhood is deeply rooted in American history and tradition.

In his dissent in Thornburgh v. American College of Obstetricians, Supreme Court Justice Byron White wrote: "the termination of a pregnancy typically involves the destruction of another entity: the fetus. However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no non-arbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development that is to say, the life of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis."14The difficulty recognized by Justice White is identical to that raised in the Byrn case and virtually every abortion case.If we say, "there is no non-arbitrary line separating a fetus from a child or, indeed, an adult human being," then how may we draw an arbitrary line (that is, at birth) in regard to the law's obligation to protect this life?By adding the 14th Amendment to the Constitution after the protracted conflict of civil war, the American people thought that they were doing something to protect the nation from a future tragedy similar to that which they had just experienced--a tragedy resulting from the decision of government to arbitrarily deny a class of human beings the recognition of their humanity and the protection of the law.The drafters of the 14th Amendment used both the terms "person" and "citizen." It is only the latter term that is clearly conditioned on birth in order to automatically claim the privileges and immunities of American citizenship. By use of the broader term "person," the drafters intended to offer a broad protection, including the protection of life, to those individuals who did not meet the requirements of citizenship. There is nothing in the language or history of the 14th Amendment that demands that the right to life guaranteed by its provisions be conditioned upon birth.15

Indeed, the drafters of the 14th Amendment not only chose the term "person" with care, they were also deliberate in their choice of the word "life." Certainly, they were aware of the discovery by science earlier in the century that the life of each human being begins at conception and continues throughout pregnancy. There is no reason to believe that in employing the term "life" they somehow intended an abbreviated meaning of the term, a meaning that had already been discredited by the scientific discoveries of their time.The text of the Constitution itself does not define the term "person." The Supreme Court, of course, has interpreted the word to include corporations. But to say that a court may expand the term "person" to include inanimate objects within the protections of the Constitution is not to say that it may narrow that term to exclude certain human beings from those protections.

PLANNED PARENTHOOD v. CASEY AND CONSTITUTIONAL HISTORY

The abortion jurisprudence of the United States has been the result of unique historical elements within the American constitutional tradition as courts have attempted to define with greater precision the term "liberty" in the American Constitution.Unlike many other national constitutions, the original intention of the American Constitution was to structure the external relations of the original thirteen colonies upon their independence from Great Britain. Thus, the Constitution sought to establish the powers of a national government regulating commerce between the 13 former colonies and providing for the national defense and foreign policy of the new nation. The American Constitution respected the domestic jurisdiction of the new 13 states and did not try to impose policies articulated by a national government within the internal jurisdiction of the states. The key principle of the new "federal" system established by the American Constitution was to recognize the diversity that existed throughout the states.

This federal system began to change following the American Civil War and the adoption of the 14th Amendment to the Constitution.The Amendment, in part, states "[N]or shall any State deprive any person of life, liberty, or property without due process of law."In addition, the Amendment gave the national government the power to enforce the provisions of the Amendment against the states in areas of their domestic jurisdiction.Over time the effect of the Amendment was to give the national government extensive power to reach down into the domestic jurisdiction of the states and review state laws on a variety of subjects that had heretofore been outside of the purview of the national government. The Supreme Court seized upon the fact that it was empowered to define the "liberty" protected by the 14th Amendment as a means by which to extend federal jurisdiction.In other words, the Supreme Court gave substance to the term "liberty" by deciding what activities constituted a "liberty" that was protected by the Amendment. From 1900 to 1936, the Court construed the term "liberty" so as to give broad protection to business interests under the principle of "freedom to contract."For example, in Lochner v. New York, the Supreme Court struck down as unconstitutional a New YorkState law that prohibited bakery workers from working more than 60 hours a week or 10 hours per day.The Court said the law violated the liberty to contract.16This laissez faire judicial philosophy was increasingly criticized until in 1938 the Supreme Court retreated from this line of decisions.Because of the strong reaction against these cases, the Court, for decades after 1938, refused to use such an analysis of "liberty" in interpreting the 14th Amendment.

In the 1960s, when the Supreme Court began to consider cases in which sexual and procreative conduct was at issue, the Court was therefore reluctant to consider these questions in terms of 14th Amendment "liberty."Instead, the Court looked for another doctrine to protect such conduct without the negative connotation and legal history of an approach that involved giving "substance" to "liberty."In the 1965 case of Griswold v. Connecticut regarding the State of Connecticut's ban on the use of contraceptives by married couples, the Court rejected Justice Harlan's proposal to use "liberty" as the basis of its holding.Instead, the Court developed a doctrine of "privacy" to strike down the statutory prohibition of contraceptives.17After the Griswold case, the Supreme Court continued to develop the doctrine of privacy through a series of cases18 leading up to its 1973 decision in Roe v. Wade.19 While privacy was discussed in the Griswold and Roe cases in terms of an expectation of secrecy or confidentiality, this understanding of privacy was only secondary.What was central to the Court's functional understanding of privacy as a constitutional doctrine was that it operated to create a zone of autonomous decision-making free from governmental supervision, regulation or control.In other words, the constitutional doctrine of privacy in the United States was essentially a doctrine related to personal liberty first and confidentiality only second. In the case of Planned Parenthood v. Casey, the Supreme Court made clear that this abortion "liberty" was linked to the Court's understanding of the dignity of the person.The Court stated that this liberty "involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the [Constitution].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.Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." 20
In 1973, the Supreme Court in Roe v. Wade held that "We need not resolve the difficult question of when life begins.When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."21By enshrining such ambiguity as legal doctrine, the Supreme Court focused the scope of the national abortion debate to a considerable extent upon the biological facts regarding the life of the human person before birth.But as those facts over time overwhelmingly pointed to the autonomy and humanity of the child before birth, the Court attempted to shift the discussion of personhood away from the personhood of the unborn child to the personhood of the mother.Regardless of the effect of the abortion "liberty" on the human rights and dignity of the child in the womb, the Supreme Court in Planned Parenthood v. Casey argued that what was essential was the effect of the abortion "liberty" on the dignity of the woman and how it affected her personhood.Thus, in Casey, the Supreme Court attempted to shift the question of personhood and human dignity away from the child before birth to the woman as the principal, if not exclusive focus.

In Planned Parenthood v. Casey, the Supreme Court recognized both the legal criticism and the political controversy surrounding Roe v. Wade.22While the Court's decision in Casey abandoned the trimester approach of Roe v. Wade, it left undisturbed the premise of the decision in Roe v. Wade: the contention that "We need not resolve the difficult question of when life begins.'' Roe v. Wade had destroyed the nexus between biological humanity and legal personhood.Planned Parenthood v. Casey decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."This reaffirmation included a new and somewhat ambiguous right to abortion:"the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.Before viability," the Court continued, "the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."In its opinion, the Court provided little explanation of what it meant by the terms "undue interference," "substantial obstacle," and "effective" right. Casey marks a clear return to the earlier methodology of the Supreme Court in attempting to add "substance" to the term "liberty" in the 14th Amendment.In doing so, it has provided rich ground for future criticism of the Supreme Court's abortion jurisprudence.

Casey involved a challenge to a Pennsylvania law that made numerous procedural restrictions on the woman's abortion decision while not attempting substantive prohibi23tions.For example, the law required that the woman give her informed consent to the abortion procedure after receiving certain specified information and that there be a 24-hour waiting period following her consent before the abortion may be performed.The Supreme Court upheld these procedural restrictions on the basis that they did not constitute an "undue influence" or "substantial obstacle" to the woman's "effective" right to abortion.The Court's ruling encouraged a number of states to enact similar laws requiring that physicians and others provide women seeking an abortion with information concerning the risks of abortion, the development of the unborn child and alternatives to abortion available to them.24Moreover, in light of the Supreme Court's greater tolerance of procedural regulation of abortion, state legislatures are enacting a variety of such laws, the majority of which concern government funding prohibitions on abortion, counseling and referral requirements, parental involvement mandates, and abortion clinic regulations.25

Suction curettage, induction, and dilation and evacuation are the principal methods of abortion in the United States.Since 1995, Congress has repeatedly passed legislation to prohibit late-term abortions through a less frequently used procedure known in the medical community as intact dilation and extraction and to the general public as partial-birth abortion.The congressional legislation defines this method of abortion as "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing delivery."26On both occasions the president has prevented enactment of the legislation by use of his veto.27Although the American Medical Association continues to support access to legal abortion as mandated by Roe v. Wade and Planned Parenthood v. Casey, the association supports legislation that would prohibit the partial-birth abortion procedure.In 1996, the AmericanCollege of Obstetricians and Gynecologists convened a special committee to review the partial-birth abortion procedure.It defined the procedure as consisting of five steps:(1) dilation of the cervix; (2) manipulation of the fetus to a footling breech position; (3) breech extraction of the fetus, except for the head; (4) forcibly incising the cranium with a scissors and then evacuation of the inter-cranial contents of the fetus while alive; (5) vaginal delivery of a dead but otherwise intact fetus.28

An important consideration in this form of abortion is the pain experienced by unborn children during the procedure since the physiological centers necessary for the perception of pain develop early in the second trimester.Although there is dispute whether pain can be measured in the fetus, when unborn children of the same gestational ages are delivered, pain management during delivery is an important part of their customary medical care.It should also be emphasized that this later term abortion procedure is usually performed on unborn children between 20 and 24 weeks gestational age.In the United States the survival rate outside the womb for the unborn child at 24 weeks gestational age is approximately 83 percent.In 1998, an article in the Journal of the American Medical Association suggested the rationale for the AMA's support of legislation to prohibit the procedure.It stated that partial-birth abortion "should not be performed because it is needlessly risky, inhumane, and ethically unacceptable.This procedure is closer to infanticide than it is to abortion."29

Although Congress has been unable to over-ride the president's vetoes of the Partial-Birth Abortion Ban Act, as of 1998 a majority of states have enacted laws to ban the procedure.Virtually all these state laws have been challenged in the federal courts and many remain subject to litigation or have been declared unconstitutional.30However as of 1998, eight of the laws were in effect: Indiana, Mississippi, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and Virginia.31In 1999, federal circuit courts of appeals reached contrary decisions regarding the constitutionality of partial-birth abortion laws.The Eighth Circuit Court of Appeals struck down as unconstitutional the laws enacted in Iowa, Nebraska and Arkansas.However, the Seventh Circuit Court of Appeals rejected challenges to the partial-birth abortion laws in Illinois and Wisconsin, allowing these laws to go into effect.These state laws were patterned after the federal legislation to ban the procedure.The laws in Illinois and Wisconsin permitted exceptions to the prohibition when necessary to save the live of the mother or when her health was endangered and no other medical procedure would suffice.The federal appellant court held that both laws could be applied in a constitutional manner and that neither law was unconstitutionally vague or unduly burdensome of a woman's right to abortion.32

Particularly interesting is the dissenting opinion of Chief Judge Posner who argued that the Illinois and Wisconsin laws were unconstitutional because there is no substantive difference between partial-birth abortion procedure that they prohibit and other late term abortion procedures.He wrote:"The uniformed thought the [partial-birth abortion] procedure gratuitously cruel, akin to infanticide; they didn't realize that the only difference between it and the methods of late-term abortion that are conceded all around to be constitutionally privileged is which way the fetus's feet are pointing."He concluded that: "there is no meaningful difference between the forbidden and the privileged practice.No reason of policy or morality that would allow the one would forbid the other."Most telling, however, is the judge's argument that:"Line drawing is inescapable but the line between feticide and infanticide is birth.Once the baby emerges from the mother's body, no possible concern for the mother's life or health justifies killing the baby.But as long as the baby remains within the mother's body, it poses a potential threat to her life or health and this threat presents a compelling case (or so at least the Supreme Court believes) for a right to abortion."Gone from Chief Judge Posner's argument is the legal fiction of "potential human life" fashioned by the Supreme Court in the Roe v. Wade.Early in 2000 the Supreme Court agreed to review the decision of the Eight Circuit Court of Appeals in Carhart v. Stenberg, which struck down the Nebraska partial-birth abortion law as unconstitutional.33

FEDERAL BAN ON FUNDING EMBRYO RESEARCH

In 1995, Congress enacted legislation to prohibit the use of national government funds for research in which human embryos are harmed or destroyed.The law prohibits the use of government funds for "(1) creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk or injury or death greater than that allowed for research on fetuses" where the research is undertaken for therapeutic purposes related to the fetus who is subjected to the research.The law defines "human embryo" as "any organism... derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells."34

In 1999, the United States Department of Health and Human Services asserted that the law does not prohibit research on cells derived from human embryos, even though the process through which the cells are obtained directly kills the embryo.The government maintained that once the cells are obtained that they "are not a human embryo within the statutory definition."35Stem cells that are at issue in this research come not from the outer cells, but from the embryoblast itself and are therefore the actual cells of the developing human being.These cells can only be obtained by destroying the human embryo at the blastocyst stage and removing them.36 Because embryonic stem cells are pluripotent and have the potential to become many, if not all, the tissues of the human body they are thought to have unprecedented therapeutic potential.Stem cell research offers the possibility that a patient's own cells could be used repair tissue in his own body or even grow new organs.Early reports suggest that human embryonic stem cells can be used to produce all 250-cell types of the human body.37In 1999, the Department of Health and Human Services announced plans to begin government funding of such research.38The National Bioethics Advisory Commission established by the president in 1995 supported that decision.The Commission urged Congress to amend current law to permit the funding and proceed to appropriate funds for that purpose.As of this writing Congress has refused to do so.

PHYSICIAN-ASSISTED SUICIDE AND THE RIGHT TO DIE

In 1996, two cases recognizing physician-assisted suicide as a procedure protected by the United States Constitution were decided by federal courts: Compassion in Dying v. State of Washington39and Quill v. Vacco.40The United States Supreme Court later overturned both decisions ruling that the Constitution did not mandate the recognition of physician-assisted suicide as a right, but that states were free to adopt such laws as a policy determination.41Thus, the reasoning of these federal courts continues to raise key issues as the question of physician-assisted suicide has shifted from the courts to the state legislatures for consideration.

Compassion in Dying v. State of Washington involved a challenge to the WashingtonState law that makes assisting suicide a crime punishable by imprisonment of up to five years and a fine of up to $10,000.The law provides, "a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide."The circuit court concluded, "There is a constitutionally-protected liberty interest in determining the time and manner of one's own death."Moreover, the court ruled that insofar as a state law "prohibits physicians from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths" such a statute violates the United States Constitution and is therefore invalid.

In beginning its analysis, the court observed:"In examining whether a liberty interest exists in determining the time and manner of one's death, we begin with the compelling similarities between right-to-die cases and abortion cases.In the former as in the latter, the relative strength of the competing interests changes as physical, medical, or related circumstances vary.In right-to-die cases the outcome of the balancing test may differ at different points along the life cycle as a person's physical or medical condition deteriorates, just as in abortion cases the permissibility of restrictive state legislation may vary with the progression of the pregnancy.Equally important, both types of cases raise issues of life and death, and both arouse similar religious and moral concerns.Both also present basic questions about an individual's right of choice."After noting the similarities between the "right-to-die" and abortion, the court stated that "in deciding right-to-die cases, we are guided by the [U.S. Supreme] Court's approach to the abortion cases" and in particular, the reasoning of the Supreme Court in its most recent abortion case, Planned Parenthood v. Casey.42

However, before the court began its analysis of the "right-to-die" in light of the abortion jurisprudence of the Supreme Court, it first defended its formulation of the legal issue to be resolved.The court stated, "While some people refer to the liberty interest implicated in right-to-die cases as a liberty interest in committing suicide, we do not describe it that way.We use the broader and more accurate terms, 'the right to die,' 'determining the time and manner of one's death,' and 'hastening one's death' for an important reason.The liberty interest we examine encompasses a whole range of acts that are generally not considered to constitute 'suicide.'Included within the liberty interest we examine, is for example, the act of refusing or terminating unwanted medical treatment."

The recurring issue confronting the United States Supreme Court and all lower federal courts is what standard to apply in determining whether a particular activity is protected within the scope of the liberty specified by the 14th Amendment.In attempting to ascertain whether an activity should be classified as a "fundamental liberty" and therefore protected from state prohibition or infringement, the Supreme Court has stated that the interest to be protected must be (1) "implicit in the concept of ordered liberty such that neither liberty nor justice would exist if [such liberties] were sacrificed" and (2) "deeply rooted in this Nation's history and tradition."Like the "right to abortion," the "right to die" is nowhere to be found in the United States Constitution. To the contrary, for most of the constitutional history of the United States, states not only refused to recognize such activity as a "right," but the states imposed criminal penalties for such activity.Thus, if the conduct is narrowly defined so as to limit the so-called "liberty" interest to the specific conduct at issue, that is, assisting suicide, and to no other more generally accepted conduct, then it is very difficult to characterize the conduct as a "liberty" since it historically has been criminalized.

In Planned Parenthood v. Casey, the Supreme Court rejected such a close historical context for the definition of the liberty interest at issue.The Supreme Court stated, "It is...tempting...to suppose that the [Constitution] protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified... But such a view would be inconsistent with our law.It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."The circuit court quoted this language with approval in Compassion in Dying and went on to observe that the Supreme Court had not taken such a broad view of what constitutes liberty, "it would not have held that women have a right to have an abortion [since] as the dissent pointed out in Roe v. Wade, more than three-quarters of the existing states (at least 28 out of 37 states); as well as eight territorial legislatures restricted or prohibited abortions in 1868 when the 14th Amendment was adopted."

Moreover, the Supreme Court's abortion jurisprudence was found to be persuasive in another important aspect.The Supreme Court in Planned Parenthood v. Casey re-affirmed the constitutional right to abortion.It did so by replacing the notion of "privacy" as the constitutional principle that encompassed a "right" to abortion with a broad, seemingly open-ended concept of liberty.After reviewing its decisions related to marriage, contraception, abortion, family relationships and childrearing, the Supreme Court stated, "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.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.Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

The circuit court found this analysis broad enough to extend beyond the issue of abortion and include the "right to die."According to the circuit court, "the decision how and when to die is one of'the most intimate and personal choices a person may make in a lifetime,' a choice 'central to personal dignity and autonomy.'A competent terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent.How a person dies not only determines the nature of the final period of his existence, but in many cases, the enduring memories held by those who love him."

In holding that a "right to die" is protected by the Constitution, the circuit court relied upon the decision of the Supreme Court in the case of Cruzan v. Director, Missouri Department of Health43 which involved the constitutional standard to be applied in cases in which a legal guardian seeks to discontinue nutrition and hydration of a patient with the knowledge that death will result.In Cruzan, the parents of a young woman in a persistent vegetative state sought a court order permitting them to terminate the artificial nutrition and hydration procedures the hospital was providing their daughter.The Supreme Court observed that while "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment," and that therefore "the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition."The Court also stated that the question was not automatically resolved in favor of the parents' request to terminate hydration and nutrition.It noted, "An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right.Such a 'right' must be exercised for her, if at all, by some sort of surrogate."The State of Missouri had recognized in its law that a surrogate may act on behalf of a patient to refuse or terminate life-prolonging hydration and nutrition, but the state required that the surrogate's action must conform to the wishes of the patient.In addition, the law required that the surrogate show by "clear and convincing" evidence that such was the wish of the patient.In Cruzan, the Supreme Court limited its ruling to the question of whether such a procedural requirement by a state was an infringement upon the patient's constitutionally protected right to refuse lifesaving treatment.The Court held that a high evidentiary standard requiring "clear and convincing evidence" did not violate the Constitution.The Quill v. Vacco case involved a challenge to a New YorkState statute which provides that a person is guilty of manslaughter when "he intentionally ... aids another person to commit suicide."The lower court ruled that state laws that deny mentally competent patients, who seek to end their lives during the final stages of a terminal illness the assistance of a physician, deny these patients the equal protection of the laws in violation of the Constitution.It stated that the guarantee of the 14th Amendment "requires the State to treat in a similar manner all individuals who are similarly situated."The court arrived at this conclusion by a tenuous process of generalization that ignored distinctions in the medical circumstances among various terminally ill patients.Instead, the court simply considered all terminally ill patients who sought to "hasten" their death to be "similarly situated."The court dismissed any significant difference between the two types of decisions that the law has always recognized as profoundly different; that is, the difference between the decision to refuse or withdraw medical treatment and the decision to administer death-causing drugs with the intention to thereby cause the death of the patient.In doing so, the court ignored important distinctions that both medicine and law have traditionally recognized. Instead, it simply pulled together all such decisions into a single category of"decisions to hasten death."

The court placed great emphasis upon the fact that the New York legislature in 1990 enacted a new law to allow a person to sign a "health care proxy" to appoint an agent with "authority to make any and all health care decisions" on the person's behalf including "those relating to the administration of artificial nutrition and hydration."As a result, the court contended "New York does not treat similarly circumstanced persons alike: those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems' but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs."The court held that there is no legally relevant distinction between assisted suicide and the withdrawal or withholding of life-sustaining medical treatment.

Finally, the circuit court dismissed the state's interest in protecting human life in these circumstances.It stated, "the state's contention has been that its primary interest is in preserving the life of all its citizens at all times and under all conditions.But what interest can the state possibly have in requiring the prolongation of a life that is all but ended?Surely, the state's interest lessens as the potential for life diminishes.... What concern prompts the state to interfere with a mentally competent patient's 'right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life'."Yet, the court's premise, that "the state's interest lessens as the potential for life diminishes," is surely one that cannot logically be limited to the situation of terminal illness or to the mentally competent patient.Certainly, the mentally handicapped, the physically disabled and the elderly who are not terminally ill all experience in significant ways a "diminishing" ability to "define [their] own concept of existence, of meaning, of the universe, and of the mystery of human life."To recognize in the law a sliding scale"lessening" the state's interest in protecting such life, as the court does, is an exceedingly dangerous precedent not only in regard to the situation of the terminally ill, but also because it cannot be limited to the terminally ill.

The Supreme Court reversed both of these lower court rulings in unanimous decisions.In Washington v. Glucksberg,44 the Court "conclude[d] that the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest" protected by the Constitution.In upholding the Washington law the Court further held that the State "has an 'unqualified interest in the preservation of human life'."Significantly, the Court also noted, "the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia."The Court acknowledged that the practice of euthanasia in the Netherlands was an important precedent quoting the Dutch government study that found 400 cases of assisted suicide and more than 1, 000 cases of euthanasia without an explicit request as well as 4,941 cases in which physicians administered legal doses of drugs without their patients' explicit consent.The Court also noted that the prohibition of assisted suicide was longstanding with the State of New York enacting the first statute outlawing the activity in 1828.This statutory formulation was consistent with the common law practice.For example, an early 19th century commentary on the law of the State of Connecticut summarized the law as follows, "if one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal."45Moreover, it cannot be said that the rationale behind the early prohibition of assisted suicide was substantively different than that presented today.While perhaps the number of cases was not as numerous, there is no reason to suppose that those suffering from painful terminal illnesses in the early 19th century were any less vulnerable to the suggestion of suicide than are terminally ill patients today.

In Vacco v. Quill, the Supreme Court also reversed the lower court and rejected its contention that there is no significant difference between refusing life-saving treatment and assisting a suicide.The Court held that there was a significant legal difference between "letting a patient die and making that patient die."It continued, "Logic and contemporary practice support New York's judgment that the two acts are different.... By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction."

Early in 1999, the Oregon Health Division released a report on the "Death with Dignity Act" at the conclusion of its first year of operation.47The report found that 15 patients had been killed under the law.The report also found that the most common reason given by patients who requested assisted suicide was not pain or even the seriousness of the illness, but the fear of "loss of autonomy" or "loss of control of bodily functions."Only four of the 15 patients received a psychological assessment before ending their lives, yet Oregon health officials admitted that in a majority of cases suicide advocacy groups were involved in the patient's decision.48The report has been criticized as inadequate since it was unable to support the conclusion that the provisions of the law are being carried out safely including whether patients were adequately counseled so as to make an informed decision.49Perhaps the most disturbing development is the announcement by the state attorney general's office that the law may violate constitutional guarantees of equal protection and federal laws that protect the rights of disabled persons since it may not permit physicians to directly kill patients whose physical disability prevents them from self-administering lethal drugs.

At the national level, Congress has responded to the situation in Oregon by consideration of legislation that would promote aggressive pain management and palliative care while providing that lethal drugs regulated by the national Controlled Substances Act could not be used to carry out physician-assisted suicide even where that procedure has become legal under state law.50The legislation, if enacted, would establish a new "Program for Palliative Care Research and Quality" within the national Agency for Health Care Policy and Research to develop and advance scientific understanding of palliative care and pain management for health professionals specializing in care of the terminally ill as well as the general public.At the same time the bill would undermine the ability to carry out physician-assisted suicide by depriving physicians of the use of substances controlled by the federal government, such as morphine.

CANADA51*

Although Canadian law on abortion and related issues has been greatly influenced by constitutional jurisprudence in the United States, Canadian jurists have sought to retain autonomy in their approach to these issues and important differences exist between the two juridical systems.Like the United States, Canada inherited the British common law on abortion.Upon independence Canada retained the British Offenses Against the Person Act of 1861, which provided that abortion was a form of homicide.This provision was later incorporated into the Canadian Criminal Act.The Act contained a general prohibition of abortion before and after quickening and provided for a maximum criminal penalty of life imprisonment.In 1969 the law was substantially amended to provide for the legalization of "therapeutic" abortion when authorized by a medical committee and performed in a designated hospital.

In Regina v. Morgentaler the Supreme Court of Canada invalidated section 251 of the Canadian Criminal Code that permitted the performance of abortion only in designated hospitals upon the approval by a therapeutic abortion committee.52Section 251 permitted the performance of abortion when a majority of the therapeutic abortion committee concluded the pregnancy "would or would be likely to endanger the mother's life or health."A majority of the Court found that this statutory approach violated Section 7 of the Canadian Charter of Rights and Freedoms.The Charter provides that "everyone has the right to life liberty and the security of the person and the right not to be deprived thereof except in accordance with principles fundamental justice."Chief Justice Dickson maintained that the abortion law was, on its face, a violation of the guarantee of Section 7 of the Charter.He wrote:"Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with the woman's body and thus a violation of security of the person."53He also asserted that, as applied, Section 251 violated the Charter: "the system regulating access to therapeutic abortions is manifestly unfair.It contains so many potential barriers to its own operation that the defense it creates will in many circumstances be practically unavailable."54Chief Justice Dickson's conclusion was supported by the fact that many hospitals had not established therapeutic abortion committees thereby making it impossible to comply with the law and therefore also impossible to obtain an abortion at that hospital.Also, Section 251 did not define "health" thereby permitting both narrow and broad interpretation of the term by differing hospital committees.This uneven application of Canada's abortion law gave rise to the contention that it was both arbitrary and unfair.

Four of the five justices in the Court's majority agreed that the Charter's protection of security of the person was the constitutional principle that governed the question of abortion.Justice Wilson, however, argued that Section 7 of the Charter was "inextricably tied to the concept of human dignity"55 and "an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state.This right is a critical component of the right to liberty [that] grants the individual a degree of autonomy in making decisions of fundamental personal importance."56The language of Justice Wilson's opinion more closely resembled the language of the United States Supreme Court's abortion opinions than did that of her colleagues.Yet, there is a significant nexus between her concept of "autonomy" and her colleagues' concept of "security of the person."One suspects that the real difference between Justice Wilson and her colleagues in the majority is basically one of emphasis.

While striking down Section 251, the Supreme Court of Canada, unlike its counterpart in the United States, did not take the additional step of writing in effect a new national abortion statute.Nor did the Canadian Court establish abortion as a fundamental constitutional right.Instead, it considered only the application of the constitutional principle of "security of the person" as it affected the abortion law challenged by Morgentaler.Ironically, while the majority opinions in the Morgentaler case seem to accept in principle that the state has the power to regulate the abortion decision, the actual effect of the decision is that until Parliament enacts new legislation, "abortion in any circumstance is no longer a statutory criminal offence" in Canada.57In effect, the Canadian Court decriminalized abortion in Canada.58

In applying the Charter to the question of abortion, the Canadian Court was dealing with a constitutional principle - Section 7 - with significantly less historical development than the equivalent American constitutional provision.The Fourteenth Amendment to the United States Constitution had undergone nearly a century of juridical interpretation by the time Roe v. Wade was decided.However, the Canadian Charter of Rights and Freedoms was only incorporated by the Constitution Act of 1982.Moreover, the Canadian Supreme Court, in the historical context of parliamentary supremacy, exercises a different and more limited power of judicial review in relation to the national legislature than does the United States Supreme Court.In the United States it is clearly established that the Supreme Court has authority to declare acts of Congress unconstitutional.59

Following the Canadian Supreme Court's decision in the Morgentaler case, the Court considered Borowski v. Attorney General of Canada.60While Morgentaler had challenged Section 251 as a violation of the woman's rights under Section 7 of the Charter, Borowski argued that the exception clause contained in Section 251 permitting the performance of abortion amounted to a violation of the unborn child's rights under Section 7 of the Charter.Specifically, Borowski maintained that the unborn child should be included within the meaning of the term "everyone" where the Charter provides that "everyone has the right to life."Borowski presented the Court with substantial evidence of the biological humanity of the child before birth.61However, following arguments in the case, the Supreme Court ruled that the case was moot and that Borowski lacked standing to bring the case.Moreover, Judge Sopinka maintained that following the Court's action in Morgentaler, Borowski was asking the Court to "pre-empt a possible decision of Parliament by dictating the form of legislation it should enact.To do so would be a marked departure from the traditional role of the Court."62

Thus, the Supreme Court of Canada, like the United States Supreme Court before it, resolved the constitutional questions regarding the legalization of abortion by means of cases that lacked an adequate trial record regarding the biological humanity of the unborn child.The United States Supreme Court could have heard the Byrne case with its more complete trial record regarding the unborn child and the Canadian Supreme Court could have heard the Morgentaler case along with the Borowski case.To have proceeded in this fashion would have provided a more complete analysis of the issues present in the abortion decision.

More recently, the Canadian Supreme Court has considered the legal status of the unborn child in Trembley v. Daigle, a case involving the attempt by Jean-Guy Trembley to enjoin his pregnant girlfriend, Chantal Daigle, from obtaining an abortion.63Trembly argued that the unborn child was entitled to protection under the Canadian Charter of Rights and Freedoms, at common law and under the civil law of Quebec. The Supreme Court rejected Trembley's claim for protection of the unborn child under the Canadian Charter on the basis that the protections of the Charter do not apply to controversies between private parties. The Court also considered Trembley's contention that the Quebec Charter of Human Rights and Freedoms, which essentially followed the language of the national Charter to provide that, "every human being possesses intrinsic rights and freedoms", should protect the unborn child.The Court held that there was no reason why the term "human being" as used in the Quebec Charter should have a meaning different than the term "person." The Court gave great weight to the fact that it could not find evidence of the legislature intending to specifically include the unborn child in the meaning of the term "human being".It stated:"The meaning of the term 'human being' is a highly controversial issue to say the least, and it cannot be settled by linguistic fiat."64While this may be true, it is not immediately apparent why a class of unquestionably "human" beings would be excluded from the ordinary meaning of the term "human being" absent a specific intent to do so by the legislature.Especially is this the case when the law has historically provided criminal sanctions to protect the right to life of this class of "human" beings.Nonetheless the Court stated, "The Court is not required to enter the philosophical and theological debates about whether or not a fetus is a person, but, rather to answer the legal question of whether the Quebec legislature has accorded the fetus personhood.Metaphysical arguments may be relevant but they are not the primary focus of inquiry....The task of properly classifying a fetus in law and science are different pursuits.Ascribing personhood to a fetus in law is a fundamentally normative task."65

Trembley also argued that the civil law maxim that the unborn child "will be considered born wherever this is in its interest" should control the issue of abortion.The Court rejected this argument as well stating that the principle, to the extent that is existed, was a "legal fiction" and that, in any event, it was only given application when the unborn child was actually born alive.Otherwise the Court stated, "if he dies before birth he is deemed never to have existed."66While the Court's interpretation of the rule may be accurate in regard to economic interests such as the transference of property, it is not clear why it should apply to the issue of abortion where the act being considered is the intentional destruction of the child before birth in order to prevent it from enjoying specific rights, such as that of life.In other words, would the rule protect a third party's intentional killing of an unborn child to prevent the effectiveness of such a conveyance since not being born alive, it can be said in defense of the perpetrator that the child never existed?To say, as the Court did, that "a fetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born," should suggest, in the very least, that what is being treated as a "person" in these cases is from its beginning a "human" being.

In 1988 the Canadian Parliament opened a wide-ranging debate on various proposals to regulate or prohibit abortion subsequent to the Supreme Court's decision in the Morgentaler case.No one statutory proposal received a majority vote during this consideration and the Parliament has failed since that time to enact legislation to restrict abortion in Canada with the result that the performance of abortion has been, as a practical matter, decriminalized in Canada.

PHYSICIAN ASSISTED SUICIDE

In Rodriguez v. British Columbia (Attorney-General)67 the Canadian Supreme Court, in a 5-4 decision rejected the claim of 42-year-old Sue Rodriguez that Section 7 of the Charter protected her right to physician assistance in self-administering a lethal drug.Section 241 of the Canadian Criminal Code provides that "every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide [is] liable to imprisonment for a term not to exceed fourteen years."Nine months after losing her appeal before the Supreme Court, Rodriguez, who suffered from amyotrophic lateral sclerosis, committed suicide with the assistance of an unidentified physician.The Court found that the statutory ban on physician-assisted suicide violated the "security of the person" protection of Section 7 of the Charter.The Court stated:"There is no question that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity, are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these."68Nonetheless the Court held that Section 241 of the Criminal Code did not violate the Charter because its "deprivation" of the "guarantee" of "security of the person" was accomplished pursuant to the exception clause of Section 7, that is, "in accordance with the principles of fundamental justice."

Significantly, the Court's majority opinion rejected not only the interpretation of the Charter put forward by Rodriguez, but also her characterization of the act of suicide.Writing for the majority, Judge Sopinka stated, Rodriguez "suggests that for the terminally ill, the choice is one of time and manner of death rather than death itself since the latter is inevitable.I disagree.Rather it is one of choosing death instead of allowing natural forces to run their course.... Death is, for all mortals, inevitable.Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life.It follows that life as a value is engaged even in the case of the terminally ill who seek to choose death over life."69The majority also found that Section 241 was appropriate to safeguard the potential for abuse implicit in any legal scheme to permit physician-assisted suicide.Yet even when "abuse" in a legal sense may be lacking there are nonetheless real and substantial pressures that may arise to influence a terminally ill patient's decision to end his life."Patients who are enfeebled by disease and devoid of hope may choose assisted suicide not because they are really tired of life but because they think others are tired of them.Some patients, moreover, may feel an obligation to choose death to spare their families the emotional and financial burden of their care.Other patients may succumb to the repeated signals from society that it would prefer to spend its limited resources on other compelling needs."70To maintain that patients acting under constraints such as these are nonetheless exercising autonomous decision-making is to champion a cramped and simplistic understanding of autonomy.

The dissenting judges all found that equal protection of the law was an important consideration in their view that Rodriguez had a right to physician assistance in committing suicide. Justice McLachlin dissent agreed with the majority's view that Section 7 protected a right of bodily autonomy.She dissented, however, from the majority's conclusion that the statutory prohibition of assisted-suicide was consistent with principles of fundamental justice and therefore fell within the exception clause of Section 7. She maintained that since the law did not prohibit the physically able person from committing suicide it was discriminatory to prohibit the physically disabled person from obtaining assistance to accomplish the same result.Justice McLachlin argued that security of the person was the foremost constitutional issue presented in the Rodriguez case.While she disagreed with her three dissenting colleagues who focused primarily on an equal protection argument, Justice McLachlin's position nonetheless relies on equal protection analysis on the critical issue of whether Section 241 is consistent with principles of fundamental justice.

Chief Justice Lamer relied upon equal protection analysis and refused to join in a "security of the person" or bodily autonomy analysis.He maintained the central issue was discrimination against the disabled.Section 15 (1) of the Charter provides:"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability."He applying Section 15, Lamer stated, "repeal of the offence of attempted suicide demonstrates that Parliament will no longer preserve human life at the cost of depriving physically able individuals of their right to self-determination.The question to which I must now turn is whether, given the importance of the legislative objective, Parliament is justified in depriving persons with disabilities of their right to an equal measure of self-determination....Regardless of the safeguards Parliament may wish to adopt, however, I find that an absolute prohibition that is indifferent to the individual or the circumstances in question cannot satisfy the constitutional duty on the government to impair the rights of persons with physical disabilities as little as reasonably possible."71Justice Cory essentially found a constitutionally protected right to die; writing, "the life of an individual must include dying.Dying is the final act in the drama of life.If, as I believe, dying is an integral part of living, then as a part of life it is entitled to the constitutional protection provided by Section 7.It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life."72

The majority opinion may be criticized for a superficial understanding of personal autonomy that led to the conclusion that criminal prohibitions of suicide assistance violate the constitutional principle of security of the person.It may be commended, however, for its strong endorsement of the sanctity of human life, which the Court's majority said was "fundamental" in Canadian law and society.Unfortunately, the Court's earlier analysis of abortion in the Morgentaler case, while developing a broad meaning for the term "liberty" as used in the Charter seized upon a narrow and inadequate understanding of the term "life."73

In 1995, the Special Committee on Euthanasia and Assisted Suicide of the Canadian Senate issued its final report entitled, Of Life and Death. Among its recommendations were that both non-voluntary and voluntary euthanasia remain criminal offenses and that no revision be made to the criminal prohibition of assisted suicide contained in Section 241 of the Canadian Criminal Code.The Canadian Parliament has followed the recommendations of the Special Committee and has made no revisions to these laws.

CONCLUSION