Less than five years ago, the German parliament passed a law prohibiting commercial “assistance in dying.” Last week, Germany’s Federal Constitutional Court declared this law unconstitutional, on the grounds that personal autonomy includes the right to make decisions about one’s death—which in turn includes the right to professional assistance in doing so. With this ruling, the court has established an absolute, unlimited right to suicide “in all stages of a person’s existence,” independent of life-threatening conditions or suffering. According to the court, the freedom to die cannot be taken away from anyone by the state.
When such questions are resolved by high courts, the solutions are often more radical than parliamentary ones. And once the Germans get into something, they do it with mind-boggling thoroughness. The central requirement for legal euthanasia and/or assisted suicide had always been unbearable suffering. Now, an unconditional “freedom to die” is guaranteed “at all stages of human existence.” This sadly reveals how irrelevant Christian thought is in Germany today, despite the well-connected, well-funded German church leadership and academic theology.
The ruling allows the state to continue investing in suicide prevention and in palliative medicine, but the state can no longer prohibit people from assisting others professionally in their suicide plans (private assistance in suicide was already decriminalized). On the other hand, the ruling does not force doctors to offer euthanasia services. Among medical professionals in Germany, resistance to “medical assistance in dying” is remarkably strong.
It remains to be seen how the state will address this resistance in the future. Will the state not have to take measures to guarantee that everyone can exercise the right to end their own lives “at all stages of human existence”? Will medical board regulations that shield their members from the duty to participate in euthanasia be able to stand? How will the state ensure there are qualified euthanasia personnel and institutions? And how is the government to determine whether a commercial euthanasia provider is ethical and reliable? If the state is now obliged to make sure that people who want to end their lives have “sufficient space” to do so, this ultimately will require positive action. For the moment, no one will be obliged to cooperate directly. Already in the wording of the judgment, however, you can sense that medical professionals will be pressured in the near future. And what this will mean for Christian institutions is anyone’s guess.
The court’s ruling recognizes that parliament's 2015 law rightly tried to prevent assisted suicide from becoming “normal.” The court encourages parliament to use all legal means available to vet euthanasia providers and impose counseling and waiting periods, in order to make sure that the right to die is exercised as a truly voluntary act, and not because of any external constraints or pressures.
The message is that the state has to offer comprehensive assistance to those who are considering ending their lives—in the hope that they might ultimately decide against it, but mostly to ensure that any decision is taken freely. But the state cannot make it illegal for doctors to provide assisted suicide services, lest people be forced to go abroad or jump off bridges. People trying to end their lives should not be left alone, and not left to do it alone—that is what the court wants.
This radical decision comes as a surprise, especially considering the German legal tradition. It is profoundly misguided and opens the door to dangerous consequences. Even liberal commentators did not see this coming, and they too know that this ruling is not the end of the debate, but an important milestone that indicates where the debate is going.
The court has decided previous prohibitions of assisted suicide are a radical misunderstanding of the most fundamental principles of law, enshrined in the constitution. It has declared, in other words, that generations of German people, politicians, and justices did not fully appreciate how free, responsible, and sovereign the individual truly is, despite the fact that they formulated the constitution on which this new decision is based. Only in 2020, apparently, can we now see that any human being, at any time, must have the right to end his life. He is only required to use the proper procedures, listen to advice, and maybe wait a bit. Only now, in its present configuration, was the Constitutional Court able to see this deeper logic in the constitution.
We should all be afraid of a world in which anything like this is sanctioned under the mantle of the rule of law. As well-intentioned and legally professional as this decision has been made to appear, there is real evil at work. We will have to consider seriously which forms of resistance can and must be taken. And we should open our eyes to the tyranny of the deficient philosophy here. Totalitarian individualism is no better than any other totalitarianism, even if it appears more humane. It leaves the individual completely alone while pretending to “be there” at the moment of self-willed death. The independence and freedom implied in such decisions simply does not exist: It does not exist when an individual makes the decision (as the court pretends), just as it is not there when an individual executes it (as the court acknowledges and demands).
This ruling contradicts the makers of the constitution while referring to them; it contradicts previous legislation and jurisprudence, as well as medical and pastoral experience; and it contradicts the dignity of the human person, while claiming to protect it to the extreme. The judgment also contradicts itself. On the one hand, it declares the individual alone the lord of his life; on the other hand, it builds a legal framework which necessarily makes everyone else an indirect accomplice in the suicide process, as the law touches everyone and as everyone will contribute financially to the new system of professional assistance in dying.
The judgment is merely another sign that our liberal-democratic system is imploding, actively undermining what it stands on. It also demonstrates that delegating such weighty issues to the high courts of our countries is a terrible idea. The belief that human tragedies can become expressions of human liberty—if only we manage them well and follow well-intentioned guidelines—is itself tragic. The value of the person, the sanctity of every human life, needs to be absolutely and unconditionally defended. It does not depend on anyone’s recognition, including my own. Until this truth is fully embraced, our legislation will go astray and we will inevitably fall prey to considerations of utility and economic viability. Unless we get it right on this most fundamental level, our efforts on all other fronts will be misguided and in vain.
Msgr. Hans Feichtinger is the pastor of St. George’s Parish and St. Albertus’s Parish in Ottawa.
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