Utopia, you are standing in it!

The right to die with dignity has long had substantial public support in New Zealand. Opinion polls show that about 60% of the population support it and these opinion polls date back 20 years.

Members of Parliament won’t touch it. Late last year, a backbench Labour MP withdrew from plans to put a Death with Dignity Bill in the ballot for private members’ bills. This was done because of pressure from Labour Party colleagues not wishing euthanasia to be a distraction in the forthcoming general election.

The two previous attempts at passing a Death with Dignity Bill failed despite widespread public support:

• In 1995, Michael Laws introduced a Death with Dignity Bill. It failed by 61 votes against and 29 for the Bill. His Bill could only become law after a binding nationwide referendum to be held at the 1996 General Election.
• Peter Brown, a list MP for New Zealand First, introduced a Death with Dignity Bill in 2003 that was defeated by 59 votes to 58 votes.

In each of these cases, the MP concerned had a compelling personal narrative about the loss of family member or friend after a long fight with cancer as their motive.

Any future attempt to introduce such a bill will also require the MP concerned to have such a personal narrative. It is also not unimportant that both MPs that introduced the previous bills were little-known and their particular activities had nothing to do with whether they got re-elected or not.

Peter Brown was a list MP whose presence in Parliament solely depended on the popularity of Winston Peters. New Zealand First is a one-man party. Michael Laws had quit the National Party and was sitting as an independent.

The law has long acted to prevent, by force if necessary, suicide – including suicide by refusing to take appropriate measures necessary to preserve one’s life after the point at which life become unbearable. Justice Scalia argued that:

I believe in liberal democracy, which is a democracy that worries about the tyranny of the majority, but it is the majority itself that must draw the lines.

Whether the patient’s wishes to be honoured in this area is left to elected representatives to legislate. Justice Scalia asks

Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause.

What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection – what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution.

Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.

Many who support euthanasia in principle have serious reservations about the ability to craft a Bill that prevents abuses. Parliaments have an interest in protecting vulnerable groups–including the poor, the elderly, and disabled persons–from abuse, neglect, and mistakes.

The democratic process must strike a proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure.

The pros and cons of euthanasia as a practical matter is ably summarised by Richard Posner:

 Countries and states that authorize physician-assisted suicide impose strict requirements that minimize the danger of involuntary euthanasia—too strict, some believe (such as the requirement in Dutch law that the patient’s suffering be “unbearable” before he can invoke physician assistance to end his life).

These requirements (which further reduce the stigma of physician-assisted suicide by confining the practice to cases of genuine desperation) are not airtight, or uniformly observed. Any system will be abused. The question is whether the incidence of abuses, combined with the other costs of the system, outweigh the benefits.

Gary Becker has written frequently on the issue of euthanasia and suicide. Indeed, he wrote the Economic Theory of Suicide, not long after his wife took her own life in the early 1970s. He argues well about people’s ability to weigh the considerations:

Rational forward–looking persons with good information about their future circumstances would commit suicide only when convinced that they would be worse off by continuing to live.

David Hume said (in his Essays on Suicide and the Immortality of the Soul) “That suicide may often be consistent with interest and with our duty to ourselves no one can question, who allows that age, sickness, or misfortune may render life a burden, and make it worse than annihilation.”

Schopenhauer was also confident about the rationality of suicide, “It will generally be found that, as soon as the terrors of life outweigh the terrors of death, a man will put an end to his life” (Parerga and Paralipomena).

Becker also wrote insightfully of the terrors of death:

Hume adds “I believe no man ever threw away life, while it was worth keeping. For such is our natural horror of death”, and Schopenhauer makes the same observation “But the terrors of death offer considerable resistance…”

The reason why Death with Dignity Bills fail in Parliament is those in the community who are against it are passionately against that it and will change their vote if it passed. Those that are for it are not swinging or single issue voters.

Whoever moves the Bill will be a less well known MP with a personal narrative as to why they did it. What will be in that Bill? Scalia again:

Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone… can produce compromises satisfying a sufficient mass of the electorate that this deeply felt issue will cease distorting the remainder of our democratic process.