A Third Way: Respect for Freedom of Conscience and the Right to Die

This article is in response to Canada’s recent legalisation of assisted death.

What is the greater value? Preserving the life of a person who is at risk of falling into the temptation of committing assisted death but who does not truly want it? Or preserving the freedom of some to commit assisted death in order to be relieved of their pain? The answer is obvious: it isn’t to remove freedom from one in order to give it to the other. The answer is better, quality, compassionate palliative care. The answer is to preserve the life of he who is at risk of falling into the temptation of committing assisted death and who, if there were sufficient palliative care, would not want to hasten death by assistance.

What is the greater value? Killing a person’s dignity by wrecking her life-inspiring conscience, or killing a person’s dignity by allowing her to suffer intolerable anguish? The answer is obvious. It isn’t to kill one person’s dignity in order to save the other, but to save the dignity of both. How? We will not get there by forcing a person to act against his or her own conscience. And it will not be by belittling how damaging to a person’s dignity it is to force her even to become an accessory to what she deeply believes to be a moral crime, for example by forcing her to refer a patient to a physician who can cause death. For in the conscience of physicians, nurses and those who administer our faith-based hospitals and our faith-based and non-faith-based palliative care institutions in continuance of their founders’ mandates, this act is tantamount to a real harm that is unacceptable in a free and democratic society. This harm is as damaging to the individual and as harmful to their sacred right to freedom of conscience and religion under s. 2(a) of our Charter, as is the harm of forcing someone to remain alive in contravention to his right under s.7 of our Charter to life, liberty and security of the person. The answer is not to kill one person’s dignity in order to save the other, but to preserve the dignity of both.

There is a long-standing notion that referring a patient to medically assisted death means being an accessory to a moral crime. This notion comes from thousands of years of Western philosophy based on reason, not religion, going back to the ancient Greeks including Hypocrates, whose Hypocratic Oath doctors take and swear that they must above all else do no harm to their patients. Does a person who ends the life of another human being who chooses assisted death in the absence of an option for palliative care truly respect that patient’s autonomy? For does that patient truly give informed consent in a world lacking in palliative care? How will we know in the absence of sufficient palliative care? Is she truly free of undue influence, or is she really pressured into the decision for assisted dying because of the indignity she would not suffer if she had access to palliative care? Does such a doctor abide by the Hypocratic Oath? Does a person who refers a patient to such a doctor, in a world lacking in palliative care, truly respect the patient’s autonomy? Does she truly respect that patient’s right to live, and her right to an informed choice to die? Or does she rather commit a grave moral crime? These questions are fraught with difficulty and we cannot pretend they can be answered with cognitive tests.

The principle against being an accessory to assisted death is also based on the religious laws and scholarship of many different faiths, and in the Catholic instance on a two thousand year old faith, tradition and canon law. And it has not been rejected satisfyingly by any liberal principle as being on the same footing as a racist or bigoted proposition against people of certain races, creeds or sexual orientation.

The debate on assisted death has been charged with language about “access” to assisted dying. Consequently, the demand has been made that any publicly funded institution must provide it. But arguments of this kind apply to situations in which a person is denied access to a public service on the basis of a protected ground under s.15 of our Charter of Rights and Freedoms, such as sex, race or creed. But the objection to being an accessory to assisted death is not the same as discriminating against a person on the basis of his immutable characteristics as a human being worthy of equal treatment under the law. Rather, the objection to being an accessory to assisted death is based on the refusal to being a party to an election on how a person wishes to die. This can hardly be compared to race and creed. Having a deep moral skepticism towards killing or enabling the killing of another human being can hardly be compared to a racist refusal to serve someone because of how they look.

We cannot belittle the violence that is done to the life-inspiring conscience by telling a conscientious objector to “get over it”, any more than we can tell a person who is in deep physical pain to similarly “get over it”. In both cases, it is that bad. Violence done to the body is as terrible as violence done to the conscience, for the two cannot be separated except at death, and are both vulnerable to suffering. The question of how far we are willing to go in order to protect freedom of conscience is about the nature of dignity from the point of view of its life in the conscience and in the life-affirming practice of religion for so many. It is about how much we believe in a thing called conscience, and the sustenance it provides to the heart of dignity. Conscience sustains dignity for to act against it deprives dignity of its life in human action, and to permit it to flourish in turn allows dignity to flower. Remove the artery of conscience and dignity is left as vulnerable as a heart that beats in an open chest.

Mahatma Ghandi developed a sophisticated notion of violence and it was on this notion that he built his practice of non-violence. Ghandi’s notion of violence was based on a holistic understanding of the individual and his suffering. For Ghandi, violence did not only constitute harm done to the body, but also moral, intellectual, and spiritual violence done to a person. Another well-known practitioner of non-violence, Martin Luther King Jr., took up Ghandi’s notion of violence when he wrote from captivity behind the bars of Birmingham Jail. Fr. King spoke against the violent peace of his times, in which the status quo itself appeared peaceful, but in fact cloaked the great harm of racism in America. The violent peace allowed the few who were in power to ignore the plight of the many who were in pain. Segregation was violence. Hateful words were violence. As much as the high pressure water jets that pummelled the bodies of peaceful protesters in Birmingham, Alabama were violence.

Forcing a person to act against her conscience is an act of great violence against her. How people reel when they are forced to act against their conscience! Such pain is evidenced in the passion with which a person lashes out against the authority that puts her into a moral straightjacket. First like a slow burning fuel, but soon in violence like a great sweeping fire. Such prisoners of conscience lash out against government, the courts, and all forms of authority that would keep their conscience from turning belief into self-governing action. Look no further than to the south of our border to see what that burning fuel looks like today in America. Look across the Atlantic to see what that burning fuel looks like today on an island broken away from a continent by Brexit. People throw the yoke away I tell you, the good with the bad, when they are treated like oxen. This cannot be the way towards “peace, order and good government”, which is the foundation upon which our democratic constitutional system of government was built.

The spirit of a person with a well-developed conscience writhes in moral pain against moral violence by authority the same way the body writhes in physical pain against physical violence by a foreign object. While the appearances may differ, beneath the surface the nature is the same: it is violence, and no free and democratic society can sustain it very long when it is forced by a government possessed of the exclusive use of force.

Some fear a monopoly of faith-based institutions, which would bar access to assisted dying. We are better than to let that happen. And we are better than to infringe on the right to freedom of conscience and religion.

We are resourceful enough to find a way to provide access to assisted death in appropriate settings, and respect the mandates of faith-based hospitals, which provide so much care to Canadian families irrespective of their faiths.

In a free and democratic society, one person’s freedom should not bring about another person’s death, and I tell you that violence to a person’s conscience brings about their spiritual death, for what is the spirited part of a person but that which moves her forward each day in the belief that her life has meaning?[1] And what would it be to force this part of the individual into submissive silence and force her to act against it, but a zombie-like existence, the robbing of her raison d’être, and a life of quiet desperation?[2] Soon the spiritual pain turns into emotional and physical sickness, and a person eventually dies in one sense or another as a result, but not without committing violence, either against herself or against others, in return.

In the denial of freedom of conscience are the first broken threads that spell the undoing of the social contract and sow the seeds of social division that cannot be repaired. Such emotional and psychological death is not what Canada was built on. Canada does not look like the tired faces of people forced to experience emotional, spiritual and mental anguish by acting against their deeply held beliefs. No, those faces belong to other, past regimes that have lived, perished and wrought terror around the world. For the past 150 years, this project we call Canada has become the envy of the world because of mutual respect. Respect for the freedom of conscience and religion does not hang merely on the convenience of others, like a coat that can be taken on and off the rack as the other demands. No, freedom of conscience and religion is a true and abiding promise by the state to facilitate solutions developed by its citizens that permit them to flourish in their life-giving conscience when they put on the white robe, the blue scrubs, the white collar, or the blue collar in the morning.

It is not mutual respect for one person to die by assisted suicide, only for government to assist in wounding another person’s dignity. It is not mutual respect when government forces a person to act against her deeply held beliefs, rooted in two thousand or more years of recognized tradition, to facilitate the killing of another human being. We have travelled so far on our common road as a country because here, one person’s liberty has not meant the enslavement of another. Rather, we have managed to find solutions over the years that incrementally provide the means of fulfilling one person’s right with the help of another who can satisfy it willingly. Surely we can continue to do so without disrespecting a person’s conscience when it comes to ending the life of another human being.

[1] The notion of the “spirited part” of the person is borrowed from Plato and later Aristotle. It is the part of the person that leads them to move in this or that direction depending on what they conceive to be good. It is distinguished from the vegetative and rational parts of the person. Plato, Republic. Cambridge: Cambridge University Press, 2000, 410d. Aristotle, Nicomachean Ethics, Oxford: Oxford University Press, Book I, Chapter 13.

[2] Henry David Thoreau, Walden; or, Life in the Woods. USA: Dover Publications, Inc. 1995 . The full quote reads “The mass of men lead lives of quiet desperation. What is called resignation is confirmed desperation.”

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