Assisted Dying in Unjust Conditions

Abstract

The phenomenon of euthanasia and/or assisted suicide (EAS) in unjust conditions has received much attention in the popular press, along with a handful of responses in academic venues. These responses typically defend the permissibility of EAS in unjust conditions by appeal to anti-discrimination or harm reduction arguments, which frame the issue in terms of exclusion from current EAS law. We first briefly examine these arguments within such a framing, and then argue that it fails to account for the deep moral concern elicited by EAS in unjust conditions. To address this moral concern more fully, we compare the policy of allowing EAS in unjust conditions to a hypothetical EAS policy which requires a guarantee of basic care—and thus avoids the EAS cases of moral concern from the start. We argue for the moral superiority of the latter policy and respond to several potential objections.

Introduction

Although the practices of euthanasia and assisted suicide (EAS) continue to grow, they remain controversial.¹ One source of controversy might be labelled ‘EAS in unjust conditions’ (EASUC). EASUC occurs when a requestor seeks EAS because their first choice, of receiving care and resources for their condition, is not accessible due to unjust societal conditions like poverty or discrimination.² Consider a person who suffers from some medical condition or disability, the severity of which would decrease to a level acceptable to her if she had access to some basic resource (e.g., treatment). She cannot afford this basic resource, and the state will not provide it to her. She therefore seeks out EAS as a second choice. It is assumed here that the lack of access to basic resources reflects an unjust societal situation. Therefore, her request is a request for EASUC.

The problem of EASUC seems especially acute in Canada, where EAS law uses the term ‘medical assistance in dying’ or ‘MAID’. For instance, one Canadian who chose MAID stated that “I’ve applied for MAID essentially… because of abject poverty” (Favaro 2022). Another was described as “exhausted at her failed efforts to get more help with basic needs at home”—an exhaustion which “drove her to access a medically assisted death” (Hoye 2022). Dozens of similar cases have been reported, though the issue is not (or needn’t be) limited to Canada. However, partly for the sake of concreteness and partly because most of the high-profile cases have originated in Canada, we look to the Canadian practice of MAID as a guiding example for our discussion. Relatedly, we will focus on those conditions which are agreed to be unjust, even by those who defend the permissibility of EASUC (e.g., Downie and Schuklenk 2021; Weibe and Mullin 2024). Our starting point is that a wealthy society is unjust if it fails to provide certain basic resources to all of its citizens.

How should we react to EASUC? Most would agree that it is tragic and disturbing. For example, a recent survey of Canadians suggests that the public disapproves of EASUC, and that they do not realize it is allowed under the current MAID law (Choi et al. 2024). Yet most of what has been written on the topic tends to frame the issue quite narrowly. It asks only whether it is ethical to provide EASUC to those who actually request it—i.e., whether such persons should be excluded from the law. Although that is a legitimate and understandable focus, it may not fully capture what people find unsettling about EASUC. We try to address the topic more fully in this essay.

To do this, we start by briefly reviewing two common arguments in favor of EASUC. Both of these arguments ask whether EASUC should be allowed given that EAS is already or ought to be legal—i.e., whether EASUC should be excluded in a jurisdiction that otherwise allows EAS. We briefly give some overlooked objections to these arguments, to show that they are insufficient answers even for the narrower question they address. We then approach EASUC through a broader perspective, one which takes on the justice problem directly. This approach examines a hypothetical law: EAS under just conditions (EASJC). Such a law prohibits the practice of EASUC, but makes provisions for basic care and permits EAS on the condition that this care is guaranteed to all. We defend EASJC by comparing it to the alternative of a legal EAS regime that allows EASUC, such as the one in Canada, and by addressing objections afterward. Our discussion accounts for the “tragic and disturbing” character of EASUC as a moral failure at the policy level, one that is not captured by current defenses of EASUC.

Arguments for Conditional EASUC

There are several arguments in support of EASUC; that is, in favor of not excluding EASUC from an EAS regime. This way of putting things assumes that EAS is (or will continue to be) legal, and it takes for granted (i.e., does not directly propose a remedy for) the unjust conditions involved. We’ll sometimes call this sort of EASUC—the sort which assumes, or is conditional upon, the legality of EAS and the existence of injustice—‘conditional EASUC’.

There are two main kinds of argument for conditional EASUC: those which contend that it avoids discrimination, and those which contend that it decreases harm. Note that we will set aside arguments based on autonomy and related notions (e.g., competency). While important, these arguments are mainly negative. They are given in response to those who oppose EASUC on the grounds that unjust conditions threaten a person’s autonomy—for instance, that such conditions “force” them into their choice. However, we agree with critics (e.g., Wiebe and Mullin 2024) that people can make competent and autonomous decisions under unjust conditions. The problem is that this does not settle the matter of whether conditional EASUC should be allowed. This is true even if there is a risk of paternalism in preventing competent adults from choosing EAS. After all, it is far from clear whether the justification of such prevention must be paternalistic; and even if it is, not all forms of paternalism are unwarranted. Arguments from paternalism rarely address either of these concerns.

That said, the discrimination-based arguments do seem more compelling. These arguments basically say that conditional EASUC should be allowed because its prohibition would be discriminatory; i.e., if EAS is allowed but not for people who are in unjust conditions, then the law is discriminating against them (see, e.g., Downie and Schuklenk 2021; cf. Rooney, Schuklenk, and van de Vathorst 2018). Those better off have an option, EAS, that is unavailable to those worse off. Those who seek EAS only because they are too poor or disabled to access needed care are made into second-class citizens. This sort of discrimination seems so unjust that EASUC should not be excluded in EAS regimes.

The next kind of argument for conditional EASUC comes down to a balance of harms (see especially Wiebe and Mullin 2024). The people who live in unjust conditions do not have the option of accessing treatment. If EASUC is allowed, therefore, they really have only two options: continue to suffer from their untreated condition or get EAS. And since EAS seems to relieve suffering, it is the least harmful of the two. This in turn means that, if EASUC is prohibited, then the very same people only have one option: continue to suffer. In other words, prohibiting EASUC takes away their least harmful option and forces them into their most harmful one instead. So, EASUC shouldn’t be excluded if EAS is otherwise legal.

Both kinds of argument, in our view, are incomplete and in need of further defense. Start with the arguments from discrimination. It is supposed to be discriminatory to withhold EAS from people in unjust conditions because those people constitute a vulnerable group. Why, the thought goes, should this group be treated differently than everyone else? But this reasoning begs the question. The direction of protection for the vulnerable will itself depend on whether EASUC is a right to be protected or a risk to be mitigated. In fact, it is just as reasonable to think that because people in unjust conditions are a vulnerable group, the prohibition of EAS in such situations is a protection against the premature ending of their lives. In that case, prohibiting conditional EASUC—even if discriminatory in some sense—might be justified after all.

Perhaps then the reader will point out that even if the discrimination argument is insufficient, it hardly seems a consolation given the harm that prohibition causes for the EASUC requestor. But the harm reduction argument has its own assumptions (cf. Walsh 2024). The most obvious is the assumption that EAS is less harmful than continued suffering. The question of how to define ‘harm’ in this context, and how to ‘weigh’ death against suffering, are hardly matters with wide consensus in society (see similar points in Beaudry 2022; Tambakis, Kaldijian, and Coligher 2023). Of course, to this one could respond that legalizing EAS itself is evidence that a society considers continued suffering worse than death by EAS, and this logic should carry over to the case of EASUC as well. But, again, such a response is begging the question: it assumes that the unjust condition element is irrelevant to the question of how to balance harms, or whether a calculus of harms is relevant in the way that such a response assumes. After all, in Canada—where EASUC occurs—it may be that most of the public disapproves of EASUC, and thinks it is not permitted under the current law.

An Unconditional Approach

Thus, we find the above arguments addressing the problem of EASUC incomplete, in two senses. First, they contain significant premises which they do not defend. Second, they do not directly challenge the legality of EAS or the reality of those unjust conditions which might prompt an EAS request. It is to this second incompleteness that we now turn. The narrow framing of these arguments might be an artifact of more immediate concerns: namely, whether it is unethical for a provider to perform EASUC in an EAS regime, “given the sociopolitical reality as it stands” (Wiebe and Mullin 2024, p. 5). We know this is something that Canadian providers of MAID must face, not least because even a Health Canada document effectively acknowledges it as a dilemma for MAID providers (Health Canada 2023). Regardless, this framing leaves the justice issue unaddressed. It is easy to imagine a person reacting to EASUC in broader terms more sensitive to this issue: “what kind of a society have we become, that this sort of thing really could be a ‘permissible’ option in the first place?”

Let us approach things without merely assuming that EAS is or ought to be legal. We could, for example, analyze the possibility of banning all EAS, which would clearly address the discrimination concern (cf. Kious 2024, p. 8).³ Indeed, the very phenomenon of EASUC would no longer exist, and thus a total ban would in effect address the problem of EASUC by dissolving it. The difficulty with this approach is that it does not address the particular moral concern raised by the combination of EAS and justice—the sense that EASUC is a problem at the intersection of two issues, both of which are necessary for a full understanding of the matter. Thus, for the purposes of this paper, we will forego discussion of options like a total ban, focusing instead on the moral relationship between EAS and justice.

Imagine an EAS law that only permits it in just conditions (a law we will call ‘EASJC’). EASJC allows EAS for anyone who qualifies, subject to two constraints. First, access to basic care is guaranteed to all. As we mean it, ‘basic care’ includes treatments, interventions, and other resources that are standardly available to unimpoverished persons in society. These exclude, for instance, experimental treatments that are not standardly available to all. The range of services under ‘basic care’ are such that the cost to society would be within some reasonable limit. It is the sort of care which those dozens of Canadians mentioned above could not access, those who consequently sought MAID as a last resort. For our purposes, there is no need to fully delineate what basic care is beyond the following two elements: they are standard resources that the unimpoverished take for granted, and it is plausibly unjust not to provide them to some people simply because they are poor or unable to work. In other words, these are the resources which would go at least some way to ameliorating the unjust conditions recognized by all parties to the debate at hand.

Second, the law would explicitly prohibit EASUC. This means that people who seek EAS because unjust conditions prevent them from an alternative cannot be given it. This provision is needed because even the “guarantee” of basic care might at times be imperfect—just as there are abuses or mishaps in an EAS system which allows EASUC, there might be issues in implementing EASJC as well. Still, the situation with EASJC would clearly be better than without it. It would be very difficult for people to fall, as EASUC recipient Jennyfer Hatch put it, “through the cracks” (Hopper 2022). If and when such a thing does happen, the second constraint would kick in, and those who are wronged by a rare, accidental deprivation of care would no longer have access to EAS. Such a prohibition not only protects the vulnerable from the tragedy of EAS in unjust conditions, but it also alerts society to areas where basic care access needs to be shored up.⁴

To assess the merits of EASJC, let us ask which law would be better for a society with unjust conditions: EASJC or an EAS law which permits EASUC. It seems almost self-evident that the first law would be better. Obviously, it would be more just, since access to basic care would eliminate those unjust conditions which the first policy condones. That same care implies that the overall welfare of people living under EASJC would be much greater than under EAS with EASUC. And, beyond justice and welfare, the first law would also make a society more free—more autonomous—because it would empower more people with more options than would the first. Of course, those people in just conditions would have the same option set under each law: continue to suffer from their medical condition, seek out and receive EAS, or seek out and receive basic care. But those in unjust conditions would have only two of these options under the second law (suffer or get EAS), whereas they would have all three options under the first. Finally, it is likely that the welfare of many people will be dramatically improved by access to basic care. Taken together, the question of which law is better for a society is ultimately just the question of whether it is better to have greater justice, welfare, and freedom. That question almost sounds rhetorical; it is hard to imagine a negative answer. It is especially hard given the parameters of our discussion. Again, we are not arguing that EASJC is the best possible option for a society with unjust conditions—we have set aside all sorts of possibilities, like a total EAS ban, whose assessments are outside the scope of this paper. We are merely claiming that, of the two options given, EASJC is morally superior.

It is worth immediately addressing a potential confusion. We are not claiming that it would be better to prohibit EAS, for some or even for all people, until unjust social conditions have been eliminated. Our claim is more modest than this, in at least two respects. First, the provision of basic care does not amount to the elimination of unjust social conditions. It is instead a moderate improvement of the health status caused by those conditions; enough of an improvement, that is, to provide an alternative to EAS. Second, that very alternative would remain intact for almost everyone—including those who would (without EASJC) seek EAS because of unjust conditions. It is simply that many of these people will now also have the further option of accessing basic care. For these reasons, our claim arguably avoids the charge of “hostage-taking” (van Delden, in Downie and Schuklenk 2021, p 667), according to which certain proposals would make access to EAS contingent upon the amelioration of unjust social conditions. Of course, the implementation of EASJC would take time. And, in the interim, there might well be challenges worth discussing—some of which we address below. The point for now is that EASJC attempts to realistically and simultaneously balance a desire for EAS with the demands of justice.

Objections and Replies

We suspect that most resistance to this argument will be practical. One such line of resistance says that political obstacles will stand in the way of enacting the EASJC law. These obstacles might include opposition from those in favor of alternative laws (like EAS with EASUC), or perhaps even a simple bias in favor of the status quo. A second line of resistance appeals to the costs of EASJC. These costs will include not only those relevant to EAS, but also those needed to ensure universal access to basic care. A final line of practical resistance has to do with those people in unjust conditions who want EAS and would die before EASJC is fully implemented. What are we to do with these ‘people in the interim’?

All three practical lines of resistance are only objections if they challenge our moral claim above: again, that it would be better for a society with unjust conditions to adopt EASJC over an EAS law which permits EASUC. Yet they could only do this in one of two ways. First, they might demonstrate that EASJC is practically impossible. In that case, a society with EASJC would only be “better” in some trivial sense—for instance, the sense in which it might be “better” to end aging or cure all disease. Second, the practical considerations might turn out to be morally relevant on their own, and perhaps serious enough to make EASJC worse than the alternative policy. We contend that all three lines of resistance fail in either of these cases.

It is fairly clear that political obstacles do not make EASJC (practically) impossible. After all, basically any proposed law faces such obstacles, and yet many such laws pass—only the most controversial among them are beyond hope. But controversy here is only likely to arise from those who prefer EAS with EASUC (keeping in mind that we’ve already set aside the option of a total ban on EAS). And since EASJC promises the same thing as EASUC, but better, it is hard to see why this controversy would be irresolvable. Similarly, it is hard to see why political obstacles would be morally serious enough to make EASJC the worse path. The struggle of politics was hardly an impediment for those early advocates of EAS. If they would not have been compelled by this worry, why should it compel us here?

Parallel reasoning applies to the matter of costs. We note first that both laws incur roughly the same costs with respect to EAS services themselves. So, the only financial difference between the two is that EASJC must provide universal access to basic care. This might sound burdensome. But, by design, it is far from impractical.⁵ Consider that every country with some form of legal EAS, excluding Colombia, is a high-income country whose resources are relatively plentiful (though even Colombia remains a high middle-income country). Such resources are very likely to pass the low threshold required by universal access to basic care, particularly on our modest definition of it. So, at minimum, the concern about impractically high costs would be irrelevant in most real-world contexts. Perhaps this is why some of the aforementioned countries—those which provide a satisfactory level of universal healthcare, like the Netherlands—already seem to reduce the frequency of EASUC (in comparison with countries like Canada). All of this suggests that costs are no practical impediment. And they are certainly not a moral one. Even if it was quite costly to implement EASJC, the demands of justice (not to mention welfare and freedom) would make it morally superior to a cheaper EASUC alternative.

This leaves the challenge of people in the interim: those in unjust conditions who might want EAS, even though they will not receive basic care through EASJC in time. Without a concrete policy regarding such people, or perhaps even on all available policies regarding them, it might seem practically impossible to transition into an EASJC society. And even if it is possible, it might seem that such people will be wronged in a way which makes that society worse than its alternative. We do not wish to defend any particular policy here, not least because this would require an extensive consideration of the pros and cons for each. However, we note that many options seem viable: we might give interim people access to EAS, we might prohibit that access, we might do either while expediting their access to basic care, and so on.⁶ These possibilities are apparent even after meager reflection. So, we doubt that there would be no viable policy for transitioning into an EASJC society (whether that’s from a society without EAS or a society with EAS and EASUC).

But perhaps the best policy here would still make things bad enough that EASJC is not the better option after all. The most plausible way for this to happen is if the society in question already has legal EAS with the option of EASUC, and the best policy for implementing EASJC in that society would require us to ban EASUC in the interim. In that scenario, some people in unjust conditions would lose the option of EAS before they are able to receive basic care instead. Although this seems unlikely, we acknowledge that—were it to occur—it might do so with some risks. Yet these risks seem to be precisely those raised by the discrimination and harm reduction arguments raised above. To that extent, our concerns with those arguments would rearise here too. At the same time, there is now more room to strengthen our case. Even if the risks in question were genuine, and genuinely occurred under the best interim policy, they would still come along with the benefits of EASJC. These massive gains in justice, freedom, and welfare could hardly be outweighed by such minimal risks. Barring any other risks, therefore, it is hard to see how the badness of this remote possibility would make EASUC the better choice.

We conclude that EASJC really would be better for a society with unjust conditions than EAS with EASUC. What does this tell us? It tells us that most societies, including many countries which already have some form of legal EAS, have a realistic ideal that they ought to strive for: one in which EASJC, rather than EASUC, is enshrined in law. To the extent that it falls short of that ideal, EASUC is not a mere “tragedy” (Wiebe and Mullin 2024), but a moral failure at the level of policy (cf. Kious 2024). Consider, for instance, someone who prefers a society with EASUC to one with EASJC. If we are right, then not only does this person prefer what is worse to what is better, but they do so—it seems to us—out of indifference to matters of policy. What else could explain their preference for EASUC over EASJC, absent any compelling moral or practical reasons (and barring less charitable explanations, like callousness)? Such a person might show deep concern for more immediate questions, such as what a physician should do here and now. That is noble. But it is also compatible with indifference to policy matters, the sort which arise when we ask what kind of a society we have—and might want—to become.

Conclusion

Regardless of one’s views on EAS, it is morally disturbing to end the life of someone who chooses that option because they are subjected to unjust conditions. One question raised by this sentiment is whether EASUC should be prohibited in an EAS regime. The most prominent arguments against the exclusion of EASUC appeal to the concepts of discrimination and harm reduction. But these arguments make significant and controversial assumptions. Further, even if these issues could be addressed, the arguments depend crucially on—among other things—the assumption that EAS is or ought to be legal. But it seems natural to think that when one points to the disturbing nature of EASUC, one is also asking a bigger question: is this the kind of society we should want in the first place? By not addressing this broader problem of injustice directly, the morally disturbing nature of EASUC is left unaccounted for.

We close with one further thought. Although we believe that our analysis gives fuller attention to what is morally disturbing about EASUC than the arguments we reviewed, we do not claim that we have exhausted and addressed all of the relevant moral intuitions at play. For example, we have said little about unjust conditions beyond the lack of basic care, like racial discrimination. While the lack of basic care seems most relevant to the high-profile cases of EASUC (and more obviously within the purview of EAS law), the relationship between these other injustices and EAS deserves further attention. We have also said little about the interpersonal dimension of EASUC. It is extremely troubling that anyone should face such a dilemma, between choosing death or continuing to suffer, all while those around them get the basic care to which everyone is entitled. It is not surprising that many such persons express feelings of despair and abandonment by their society—one might even say a sense of betrayal and lack of loyalty from their neighbors. This, like the avoidance of EASJC, is not merely tragic. It rather touches on something of serious moral relevance: something that does not fit cleanly into the usual categories of autonomy, welfare, and justice, but which deserves our consideration nonetheless.