One year ago — February 13, 2014 — the Belgian legislature passed a law permitting the euthanasia of children. Euthanasia for adults has been legal in Belgium since 2002. Belgium does not distinguish between euthanasia and assisted suicide. Currently, the Netherlands and Luxembourg allow both assisted suicide and euthanasia; Switzerland and Germany allow assisted suicide.
State-sanctioned euthanasia and assisted suicide are becoming increasingly common in Western Europe, and many Europeans seem untroubled by the practice.
Against this lethal backdrop, two noteworthy cases are before the European Court of Human Rights (ECHR). The ECHR, which consists of the member states of the Council of Europe, enforces the European Convention on Human Rights. Among the rights the Convention guarantees is the right to life, as articulated in its Article 2.
The first case, Lambert and Others v. France, is factually comparable to the Terry Schiavo case here in the United States. Vincent Lambert, a 39-year-old French citizen, suffered serious head injuries in a car accident in 2008 and has been in a dependent, “minimally conscious state” since that time, receiving artificial nutrition and hydration. His wife sought to discontinue the nutrition and hydration, and the French High Administrative Court, the Conseil D’Etat, ruled in her favor. Mr. Lambert’s parents and siblings opposed this action and filed an application against France with the ECHR. The Grand Chamber of the ECHR — the judgments of which are enforceable against Council of Europe member states — held a hearing on January 7, 2015. The chamber has not yet issued a judgment.
The second case is Tom Mortier v. Belgium. The Alliance Defending Freedom has filed an application with the ECHR on Tom Mortier’s behalf challenging the Belgian law that permits doctors to euthanize patients who are “in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated resulting from a serious and incurable disorder caused by illness or accident.” Motier’s mother, Godelieve De Troyer, age 65, was euthanized by an oncologist — who was not her doctor and had never treated her — because she suffered from severe depression. Her own doctor of 20 years refused her request to be euthanized. Mortier was informed of his mother’s death when the hospital called him to retrieve her body. According to the Alliance Defending Freedom, the ECHR has not yet decided if it will admit the case.
Thus far, the ECHR has refused to identify a constitutional right to assisted suicide in the European Convention on Human Rights, and it remains the last line of defense against increasing abuse of already-liberal assisted-suicide and euthanasia laws in several of the states within its jurisdiction.
The last instance in which the Grand Chamber of the ECHR rendered a judgment on a right to assisted suicide was 2002, in Diane Pretty v. the United Kingdom. Diane Pretty, who suffered from an incurable, debilitating disease, wanted her husband to assist in her suicide, as she could not do so alone because of the effects of her illness. She wanted the state to agree not to prosecute her husband; when the United Kingdom would not give such assurances, she claimed that it had effectively prevented her from taking her own life, violating a number of rights under the European Convention, including her right to life. The ECHR found that none of these rights had been violated. It states, with respect to Article 2:
Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
The expansion of euthanasia and assisted suicide to ever-increasing segments of the European population is both instructive and relevant in the United States. It is instructive because, as commentators and writers such as Wesley Smith have long noted, laws allowing assisted suicide and euthanasia are notoriously manipulable, subject to abuse, and difficult to oversee. Europe has shown us just how elastic and accommodating these “rights” can be. Requirements such as consent, mandatory reporting, and medical criteria of extreme pain and mental capacity, for example, are routinely ignored. Thus, according to a 2011 article in Current Oncology, a Canadian, peer-reviewed journal, “more than 500 people are euthanized involuntarily in the Netherlands every year.” According to the same journal, “in Belgium, the rate of involuntary and non-voluntary euthanasia deaths . . . is three times higher than it is in the Netherlands.” The elasticity of supposed legal safeguards, such as the Belgian statutory requirement that a request be “voluntary,” is underscored in cases such as that of Mortier’s mother: The doctor rooted his rationale for euthanasia in precisely what should have prohibited it — her depressed mental state that impaired her ability to make such a request completely voluntarily.
#page#The increase of these state-sanctioned practices in Europe is relevant because, as discussed in legal scholarship, the U.S. Supreme Court, in recent years, has referenced foreign law in drafting its decisions, specifically in the 2005 ruling Roper v. Simmons, in which the Court ruled that juvenile executions were unconstitutional. In that case, the Court referenced and relied on, in part, the apparent consensus among foreign states against executing minors. Writing for the majority, Justice Kennedy stated:
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. . . . The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
When the Belgian law permitting euthanasia of children was passed, Eugene Kontorovich, a professor at Northwestern University School of Law, noted that it was ironic to see moral outrage about juvenile executions coming from a region of the world that included the first nation to legalize child euthanasia. (The Netherlands permits it for children older than twelve.) Such inconsistency also underscores the risks of a superficial use of foreign law in constitutional interpretation. As Kontorovich commented: “Belgium’s law shows the folly of basing constitutional decisions on the practice of other countries: Though we all eat at McDonalds, American and Belgian notions of decency are fundamentally different. In America, an age-unlimited euthanasia law would be unthinkable.” Indeed, Kontorovich suggested that passage of the Belgian euthanasia law provided a rationale to review and overturn Roper v. Simmons because the Roper Court had relied on foreign consensus regarding juveniles’ incapacity to comprehend fully the implications of their actions — an incapacity, however, that Belgium does not think extends to euthanasia because children now are presumed to comprehend the implications of requesting or consenting to euthanasia.
The Court also has referenced foreign law in two other recent decisions of constitutional interpretation regarding individual rights, specifically in Atkins v. Virginia in 2002 and in Lawrence v. Texas in 2003. In Atkins v. Virginia, the Court ruled that imposing the death penalty on the mentally disabled violated the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Justice Stevens noted that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” And in Lawrence v. Texas, which invalidated a Texas state criminal law, the Court noted that such criminalization has been “rejected by the European Court of Human Rights.”
The Supreme Court’s references to foreign law and to the broad public consensus it reflects locates authority outside our judiciary; such references are also inconsistent with its role as the counter-majoritarian branch of government. Indeed, majoritarianism provides an additional reason it could be problematic to refer to ECHR rulings. While it has refused to find a right to assisted suicide or euthanasia in the European Convention on Human Rights, it has rooted such judgments not only in the language of the Convention itself but also in the lack of consistency among member states. In both Haas v. Switzerland, and Koch v. Germany, the ECHR refrained from finding that either of the respective applicants had a right to an assisted suicide and noted that member states of the Council of Europe did not share a consensus on this subject. Notably, the ECHR’s judgments on euthanasia and assisted suicide put it increasingly at odds with the practices and consensus of certain, but not all, states within its jurisdiction.
These two cases, Lambert v. France and Mortier v. Belgium, will reveal whether the ECHR will continue to oppose these practices and protect vulnerable human life. If it does not, we’ll see that the ECHR is instead treating the Convention it enforces as a living, adaptable document, responsive to increasing — and troubling — public acceptance of assisted suicide and euthanasia in European states.
— Sydney Leach is an attorney who writes from Virginia.