Biopower,juridical power and the afterlife of rights: Medical assistance in dying and the Supreme Court of Canada

Juridical power, biopower and resistance

‘The art of governing human beings’ (Lemke, 2014: 61) goes beyond the power of the state to enact laws and coerce the subject into compliance. This kind of power, imposed from the ‘top down’ and sometimes referred to as ‘the power that says no’, is associated with preliberal sovereign power. This power to say no subsists today as ‘juridical power’. The legitimate scope of juridical power and the ability for individuals to resist that power by deploying such human rights legislation as the Canadian Charter of Rights and Freedoms forms a major concern in legal theory and scholarship.

Biopower, on the other hand, is constituted by the management of people on two levels—discipline, which is exercised through the individual, and government, which is concerned with populations (Foucault, 2003b: 241). For Foucault, with the advent of modernity government became ‘a power that has taken control of both the body and the life or that has, if you like taken control of life in general—with the body as one pole and the population as the other’ (Foucault, 2003b: 253). Rather than depriving the individual of agency, biopower operates through agency—it influences the individual’s conduct because the individual is capable of action (Foucault, 1982: 790). Power, in fact, makes it possible for subjects to act—it constitutes subjectivity.

Medical power is associated with biopower, and operates at both the population and individual ‘poles’ of biopower. Medical expertise may be key to statistical analyses required for the study of treatments and the determination of norms of healthy bodies population-wide (Adorno, 2014: 98; Foucault, 2004: 13–14). It may also determine conduct of rational subjectivity on a more individual level, by postulating strategies a person should adopt to ensure his or her body conforms to norms of health and fitness (Hunt, 2003; Rose, 2007: 10; Tierney, 2006: 626). Biopower, as a form of ‘humane globalisim’ (Gros, 2016: 264) deploys the freedom of the individual by ‘taking the subject’s well-being into account’ (Adorno, 2014: 64). If subjects rely on knowledges produced by medical power in making lifestyle decisions, it is because they believe it is in their own interests to do so (Tierney, 2006: 615). Biopower may also be resisted; however, resistance is not a global movement towards a society of ungoverned subjects, but rather a series of moves and counter-moves; the subject may buy into and internalize power, but may also deploy power in order to be governed differently: ³

Rather than speaking of an essential freedom, it would be better to speak of an ‘agonism’*—of a relationship which is at the same time reciprocal incitation and struggle, less of a face-to-face confrontation which paralyzes both sides than a permanent provocation.

For many Foucaultian theorists, law in general no longer follows a juridical model, but has become ‘governmentalized’ (Ewald, 1990; Foucault, 1997; Garland, 1997; Rose and Valverde, 1998: 542–543). For example, law can be empowering as well as repressive—regimes providing such things as publicly funded medical care and education are all creations of law which enable the biopolitical project of caring for the well-being of populations.

However, criminal law and its relationship to the Canadian Charter of Rights and Freedoms evokes a contemporary model of juridical power. Criminal law, by and large, is a system of prohibitions imposed by the state, backed up by the real or threatened use of violence. In liberal democracies, which are largely founded on an ideal of a community of free subjects, legal theorists are preoccupied with the legitimacy of the state’s power to coerce. Individual freedom is thought to be maintained in part by investing the subject with a set of formal, basic rights—in Canada some of these rights are outlined in the Charter of Rights and Freedoms—that are more generally described as human rights. The image is one of a free subject who now has the means of pushing back, through constitutional litigation, against the ‘top down’ abuse of power by state agencies. The conceptions of rights and prohibitions encapsulated in criminal and Charter litigation have also been ‘governmentalized’ in various ways—for example, content may be given to technical legal terms by reference to biopolitical norms (Jochelson and Kramar, 2011; Rose and Valverde, 1998: 543; Young, 2015). However, legal reasoning employed by lawyers and judges in these areas has to frame issues in ways that seem to resurrect the image of sovereign power—power that operates coercively on ‘the legal subject, governed by sovereign command and obliged to obey or be punished’ (Garland, 1997: 188, emphasis in original)—and a set of universal individual rights that protect the subject from the excessive use of that power. Litigants who seek redress from the courts are required to use juridical rationalities in order to achieve their goals. This may involve a translation from one site of power to another (Garland, 1997: 182).

Why should this be controversial? It might seem on the face of things that a juridical regime with a set of basic rights offers the individual scope for asserting freedom against all-encompassing effects of biopower. In fact, a resort to abstract individual rights has sometimes been seen in legal theory as the primary bulwark against oppressive uses of biopower in the assisted suicide debate (Dworkin, 1993; Dworkin et al., 1997; McDorman, 2005; Weinrib, 1994).

The juridical understanding of rights associated with modern liberal democracies might essentialize the subject by presupposing a presocial freedom—an ungoverned self that resists the uses of power, particularly as it is exercised by state agencies in such a way as to undermine a necessary component of free subjectivity (Butler, 2004a; Golder, 2015; Kolářová, 2015). One critique of this view is that, while it provides a basis for advocates of social progress to challenge the status quo, it confines humans to one form of being; human rights, rather than being progressive, may have the effect of cutting us off from possibilities. If central concerns of modern legal theory focus on concepts like human dignity and autonomy, and if rights are designed to defend characteristics associated with humanity, they may at the same time tend to effect closure on the possibilities of subjectivity by positing these characteristics as essentially immutable. Rights, in other words, ‘demarcate a particular identity’ (Golder, 2015: 96). The concern is that to assert a human right is not to challenge that identity, but simply to demand inclusion in an existing definition of ‘what it means to be human’ (Goodley, 2014: 90).

The literature produced by critical disability theorists is instructive in this regard. For one thing, the very categories of disability and able-bodiedness are often seen as arbitrary constructs used to place large populations into binary categories—categories that fail to take account of the infinitely variable capacities, talents and ways of being on both sides of the divide. If, as Puar (2007) asserts, identities are in reality assemblages, they have a fluidity that could never be captured by rigid binary categories. Moreover, one cannot claim equal rights based on disability without defining oneself by using the highly contestable term ‘disabled’ (Goodley, 2014; Goodley and Runswick-Cole, 2016; O’Connell, 2017; Puar, 2017; Wheeler, 2017). Goodley suggests that disabled people face a ‘catch-22’. If they seek support from the state they must show that they are ‘really disabled’—thus medicalized and stigmatized by a condition of dependency. If they demonstrate that they are ready to work, they will be expected to compete in a labour market that is often exploitative as well as being ableist (Goodley, 2014). In addition, the inclusion model of disability rights presumes that it is always desirable to be in possession of a body that can be productive under conditions of capitalism. It has the effect of valorizing ‘able-bodied norms as universally desirable’ (Mitchell and Snider, 2018: 44–45) and also legitimizing norms of production in capitalist labour markets (Berlant, 2007; Goodley, 2014; Goodley et al., 2014; Puar, 2017: 72; Wheeler, 2017: 381). Under conditions of neoliberalism, it is a normal state of life for bodies to become resources, depleted over time for the purposes of production (Berlant, 2007). Because the normalized subject submits to these conditions, the disabled are faced with a choice of asserting a (limited) right to inclusion in capitalist labour markets or exclusion, which means exclusion from the livelihood and social status that those markets can provide. Asserting an equal right to work may have beneficial effects for some disabled people, but in a broader sense it reinforces rather than disrupts norms of subjectivity under conditions of neoliberalism. The potential of disability to challenge norms of production, labour and consumption is unrealized.

This is the dilemma of rights. If the subject in liberal democracies is a biopolitically produced norm, then it is not surprising that, if we take that norm as the inevitable standard of human subjectivity rather than the very object to be contested, we are often faced in litigation with a choice between problematic alternatives. To demand inclusion in the labour market structure—or any other social structure—from the margins is not necessarily to issue a challenge to that structure, or to the biopolitically produced norms of the subject. At the same time, if power constitutes subjectivity, exclusion carries dire consequences.

Golder suggests that rights might be understood in a way that avoids this problem by opening a realm of possibility—of alterity (Golder, 2015; Golder and Fitzpatrick, 2009). For Golder (2015: 57), the assertion of a right not only contests truth claims by others but also promises to remake the subject’s relationship to him/herself. Hence there may be some alternative to the dichotomy of rejecting rights or reproducing existing power structures through an assertion of rights:

Is there not some other way of playing the game that consists neither of acquiescence and reproduction nor of utter refusal that is neither wholly dialogical nor utterly polemical—some way of using rights to play a different game, perhaps?

Rights can be deployed tactically at local sites. Such tactics might ultimately effect a transformation of larger structures of power, but not necessarily with a view to creating a predetermined alternative; rather strategies of global transformations are driven by micro struggles. Rights discourses suggest movement, not towards an imagined ideal of a free subjectivity, but towards possibilities of the unknown and the unthought: ‘[f]or Foucault, the real political value of rights resides in their unpredictable afterlives—the discourses they generate and the changed attitudes they spur. Rights are not an end but rather a medium, themselves contested and contestable, for political contestation’ (Golder, 2015: 137). When we assert a right for specific reasons, we must deploy existing forms of power/knowledge to achieve the desired result. Such tactics may ultimately either disrupt larger structures of power or reinforce and legitimize them, but they always take place within “a hidden margin of freedom and possibility” (Golder, 2015: 153). If resistance occurs through the deployment of power then it does not, in one fell swoop, reconstruct power relationships. It may, however, fulfil the central function of critique, which is to make the operation of power visible and open to negotiation. If we take the Foucaultian concept of power seriously, it does not mean that we need to abandon juridical discourses and Charter litigation entirely as a means of achieving emancipatory goals. It does suggest that we should resist falling into the habit of understanding rights litigation as the free subject’s opposition to the exercise of power. Instead, we should consider the potential of such discourses to make the operation of power visible, to reconsider the forms of subjectivity it engenders, and attend to how we see ourselves in the right’s afterlife.

MAID and suicide

In Canada, the offence of attempted suicide was removed from the Criminal Code in 1974. While we might once have cast suicide as a sin against God (Barbagli, 2015: 41–42; Minois, 1999: 33; Pullman, 2016: 213; Rodriguez, 1993: para. 151; Szasz, 1999: 12–13) and a criminal offence, in more secular times a duty to live may be maintained when it is absorbed in the day-to-day operation of biopower. The prevailing view now sees suicide as primarily a medical concern (Rimke and Hunt, 2002; Szasz, 1999: 19). This shift may have been due to a coalescence of complex factors—genuine humanitarianism, practicality and professional interests (Rimke and Hunt, 2002; Szasz, 1999), but as is often the case, when we abandon punitive in favour of medicalized forms of governing, we see it as part of our evolution towards a more rational, compassionate and progressive approach to social issues. Assisting a suicide, however, has continued to be a criminal offence and governed through juridical power.

Proponents of the right to die in Canada have generally focused on people who suffer from definable medical conditions and seek death under medical supervision. Whether this is a tactical move to make assisted dying seem more palatable is open to question (Jackson, 2018: 74; Karsoho et al., 2016; Somerville, 2001: 47); however, the nomenclature used seems to draw a distinction between desires for death that conform to biopolitical norms and those that do not. ‘Medical assistance in dying’, is preferred over ‘physician assisted suicide’ (American Association of Suicidology, 2017; Gandsman, 2018: 332: Somerville, 2001), in both Carter and Truchon. MAID is seen as a rational, ‘orderly’ death, which, unlike suicide, is not unexpected or impulsive (Gandsman, 2018: 331–332; Hannig, 2019: 71; Truchon, 2019).

Moreover, the controversy surrounding MAID has led to debates about whether assisting death falls within the definition of medical care (Karsoho et al., 2016). When Carter was tried before the British Columbia Supreme Court in 2012, expert witnesses expressed differences of opinion as to whether MAID could even constitute a medical procedure. One witness argued that the purpose of medicine ‘is to prolong life, relieve suffering and improve or maintain functions [. . .] to allow physicians to administer a deadly drug would radically change what a physician is’ (Carter, 2012: para. 739). Somerville, who strenuously opposes MAID, suggests that MAID is actually a misnomer if understood as a novel use of medical treatment to bring about a person’s death. In fact, she argues that palliative care itself constitutes medical aid in dying—by easing the suffering associated with dying, not by causing death (Somerville, 2001: 121). Others see MAID as one form of treatment among others that doctors can provide at the end of life (Behuniak, 2011: 24). MAID, far from being a refusal of medical power, may actually be understood as an extension of medical power by carving out a separate area of activity; MAID may be legitimatized if it is seen as another aspect of palliative care rather than as the highly stigmatized act of suicide.

These kinds of issue arise, of course, because MAID necessarily engages medical power; the applicants in Carter, Rodriguez and Truchon only had to go to the courts for relief because it would be, or soon would be, very difficult for them to carry out the act themselves. Whether they wanted the assistance of physicians (as opposed to friends or relatives) because of the legitimizing effect of medical power or for some other reason, there was never a suggestion that medical power should not be involved. Somerville argues—correctly, in my view—that if we focus on the need for assistance there is ‘concerted communal action and, therefore, a public act’ (Somerville, 2001: 68).

Hannig suggests that even pro-MAID activists, while often relying on the language of individual autonomy, deny in various ways the singular authorship of the act. While grounding their arguments in individual autonomy, their cause has gained acceptance through a tactic of displacing agency, first by insisting that cause of death in cases of MAID is actually an underlying fatal disease, and second by ‘gestur[ing] to the complex medico-technical, bureaucratic, and legal assemblage that has come to govern assisted deaths and that has led to their routinization in states that permit them’(Hannig, 2019: 55).

Carter v. Canada (Attorney General)

In 1993, the Supreme Court of Canada rejected Sue Rodriguez’s argument that the prohibition of assisted suicide should be struck down because it violated her rights under the Charter. Rodriguez was suffering from Amyotrophic Lateral Sclerosis (ALS), and wanted to know she would have the option of an assisted death once her condition reached the point where her suffering was unbearable. Sopinka, J, for the majority, noted key values protected by section 7 of the Charter:

There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.

‘Dignity’ in this judgment is closely associated with autonomy and control. But we also see elsewhere in the decision dignity is associated with independence:

Although palliative care may be available to ease the pain and other physical discomfort which she will experience, the appellant fears the sedating effects of such drugs and argues, in any event, that they will not prevent the psychological and emotional distress which will result from being in a situation of utter dependence and loss of dignity.

Sopinka, J concluded that the criminal prohibition against assisted suicide did contravene the appellant’s right to security of the person guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. ⁴ However, the deprivation of this right was not contrary to the principles of fundamental justice, as the state had a legitimate interest in protecting the lives of the ‘vulnerable’—particularly elderly and disabled Canadians (Rodriguez, 1993). The blanket prohibition functioned to protect people whose consent to end life might be procured through pressure or coercion, or who lacked the capacity or knowledge to provide informed consent.

In 2015 the Supreme Court’s decision in Carter revisited the question of whether the criminal prohibition concerning MAID violated people’s section 7 rights. The right to life was implicated in Carter because some people who suffered terminal illnesses would feel ‘forced’ to take their own lives before the progress of the disease rendered them incapable of doing so without assistance. The Supreme Court also concluded that the right to liberty and security of the person protects people’s dignity and autonomy. Sections 14 and 241 of the Criminal Code violated the appellants’ liberty because they inhibited ‘the right to make fundamental personal choices free from state interference’ (para. 64). The provision violated the appellants’ security of the person because it interfered with ‘fundamentally important and personal medical decision-making’, and denied people like the appellants the ability ‘to make a choice that may be very important to their sense of dignity and personal integrity’ which is ‘consistent with their lifelong values and that reflects their life’s experience’ (Carter, 2015: para. 65). The court further concluded that while protecting the vulnerable was a legitimate state objective, the provision was overbroad in that it also caught within its ambit people who were not vulnerable; moreover, experiences in permissive jurisdictions suggested that various safeguards could be put in place to prevent the misuse of MAID. For these reasons, prohibiting MAID was not in keeping with principles of fundamental justice. Because Canada could not discharge its burden of showing that the provision was tailored so as be minimally impairing of the section 7 right, it was also not a reasonable limit demonstrably justified in a free and democratic society within the meaning of section 1 of the Charter. ⁵

Thus, the Criminal Code provisions against assisted suicide were:

void insofar as they prohibited physician-assisted death for a competent adult person who 1) clearly consents to the termination of life; and 2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‘Irremediable’, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.

For Tierney, the court’s reasoning would appear to have little promise in terms of resisting power. He argued that the balancing of the state’s interest in preserving life against the right of the individual fails to make visible the role that ‘juridco-medical power plays in shaping and ordering the identities of modern individuals’ (Tierney, 2006: 603). At first glance, his pessimism would appear to be justified, as in many ways Carter seems to affirm both norms of subjectivity and the subject’s ‘subjugation’ to medical power.

Like Rodriguez, the decision in Carter closely associates dignity with autonomy and freedom to choose, but it also observes that dignity is connected to the way in which one is compelled to live as one approaches the end of life:

[Ms Taylor] required home support for assistance with the daily tasks of living, something that she described as an assault on her privacy, dignity and self-esteem [. . .] She did not want to ‘live in a bedridden state, stripped of dignity and independence’, she said; nor did she want an ‘ugly death’.

There are two senses in which the court uses the term ‘dignity’. People may associate the loss of the physical capacity for self-care with an erosion of dignity. But dignity also has to do with social recognition of one’s right to self-determination, and in particular his/her identity as a reasoning subject (Réaume, 2002: para. 34; Smith, 2018). This type of dignity seems to depend not on socially determined norms of physical capacities, but rather on society’s acknowledgement of a person’s right, in Madam Justice Wilson’s terms, to ‘a degree of personal autonomy over important decisions intimately affecting their private lives’ (Morgentaler, 1988: 171). The test for eligibility also focuses on legal capacity and consent. These concerns focus on the existence of ‘true’ consent—technically an affirmation of, rather than a limitation on, the principal attribute of the free liberal subject—the right to rationally choose. Moreover, there is a longstanding requirement within the medical establishment that consent to a procedure must be ‘informed’ (Carter, 2015: para. 106).

Despite this focus on the individual’s right to choose, we could see the result in Carter as an iteration of Foucault’s ‘juridico-medical complex [. . .] which is the major form of power’ (Foucault, 1996: 197). MAID, though not prohibited outright, was now to be governed by medical power. The court only authorized physicians to provide assistance in death. Access to MAID would depend upon knowledges produced by medical power to determine such things as the definition of illness, disease and disability. Competence is a term that only has meaning by reference to norms of reason or comprehension produced through medical knowledges. The court was confident that physicians have the expertise to determine whether an individual is competent to choose MAID. However, because a clinician cannot really know the interior workings of a person’s mind, such questions may have a normative, as well as a technical, component (Banner, 2012; Roth et al., 1977; Somerville, 2001: 317; Weller, 2011: 77). Capacity in many jurisdictions is determined by a person’s ability to understand information relevant to the decision, retain that information and use or weigh that information as part of the process of making the decision. But it is difficult to separate the question of whether a person has the ability to use information from the question of whether the person’s decision seems to be rational to the clinician (Banner, 2012). ⁶ If competence is to be determined by physicians, then ‘nowadays the law folds the very principle of autonomy directly into a regime of regulation’ (Hannig, 2019: 68). In addition, obviously the availability of good palliative care provided by medical power will have an impact on the individual’s decision (if well informed) to avail him/herself of MAID. At the same time, in Canada Charter claims have generally been unsuccessful insofar as they have required the expenditure of state resources not available to the general public (MacFarlane, 2014). This suggests that while the Charter might give suffering individuals a negative right to opt for MAID, it will not serve them well if they seek a positive right to more palliative care options—options that may well have an effect on their decision of whether or not life is worth living. Of course, even if one could assert a positive right to better palliative care through juridical processes, the level of care would depend entirely on norms of health and what constitutes ‘a good death’ produced through biopower.

The Federal government responded to Carter by amending the Criminal Code, adding subsections 241(2)–241(7)—which specifically exclude MAID from the definition of the offence of assisting a suicide. MAID was now a separate category of activity, which included a governing scheme setting out conditions under which MAID could be carried out legally, and a long list of ‘safeguards’ and procedures that had to be adhered to (s. 241.1–241.31). The new sections imposed additional limits on MAID which were not specifically included in Carter, including a waiting period (s. 241.2(3)(g)), a requirement that applicants be informed of measures available to ‘relieve their suffering, including palliative care’ (s. 241.2(1)(e)), and enabling the Minister of Health to make regulations concerning reporting requirements (s. 241.31(3)). The most controversial provision was in section 241.2(2)(d), which required that a person’s death must be ‘reasonably foreseeable’ in order to qualify for MAID—Carter included no such condition. The issue of foreseeability was a medical question (AB v. Canada (Attorney General), 2017). The law as it stood following Carter created a highly regulated scheme, undeniably involving the person seeking MAID and their physician in a complex of legal and medical bureaucracy, which of course would only expand as the provinces and the various provincial professional licensing societies developed their own criteria for the provision of MAID by medical professionals. The rationale behind all this regulation is the perceived need to prevent the abuse of medical power, ensuring that only those who provide ‘true’ consent will receive MAID services.

It was not long before the reasonable foreseeability condition was subject to Charter challenges. In Truchon [2019] the Cour supérieur du Québec concluded that section 241.2 (2)(d) of the Criminal Code as well as article 26(3) of Québec’s Loi concernant les soins de fin de vie ⁷ which provided that MAID was only available to people at the end of life, were unconstitutional. Truchon had cerebral palsy, and his only functional limb was his left arm. He sought MAID when he lost the use of this arm. The other applicant in the case, Gladu, was disabled as a result of post-polio syndrome. Neither Truchon nor Gladu were eligible for MAID because their conditions were not terminal. The court concluded that the reasonable foreseeability requirement was contrary to section 7 of the Charter of Rights and Freedoms, and a person with a grievous and irremediable medical condition might have access to MAID even if they may live for an indefinite period of time. At the time of writing, legislation amending the Criminal Code to bring it into line with Truchon has been introduced into Parliament. It is easy to see how activists for the rights of the disabled might be concerned about these developments that unlink MAID from the immanence of death.

Debates surrounding the right to die often focus on the loss of ‘dignity’ (Baer, 2009; Fyfe, 2007: 3; Weinrib, 1994: 619), which we saw was associated in both Carter and Rodriguez with autonomy and independence. For some people, dignity is eroded through the physical deterioration, the perceived infantilization and intrusions on privacy sometimes associated with the inability to feed or clean oneself. Pullman suggests this is connected to an ‘aesthetical judgment’. While reaching different conclusions, Rodriguez and Carter both assert individual rights to dignity and autonomy, but neither seriously inquires into the question of how one’s ‘aesthetical judgment’ about one’s own life is shaped by the operation of power (Pullman, 2016: 203; see also Somerville, 2001: 257).

Disability scholars argue for a ‘social model’ rather than a ‘medical model’ of disability rights, one that recognizes that ‘disability’ is not only determined by biology. It also has environmental, social and political components (Beauport and Steele, 2015; Goodley, 2014; Sherry, 2014: 17; Weller, 2011). It is constructed through social practices that designate norms, and exclude those whose bodies cannot be made to comply with those norms (Goodley, 2014; Greco, 2004; Kolářová, 2015). So, for example, disability has a relationship to the rise of neoliberalism, where social services that non-normative populations require in order to live decently—or with dignity—are subject to increasing erosion (Beauport and Steele, 2015; Campbell, 2008; Greco, 2004; Sherry, 2014).

Moreover, for humans, the idea of independence is a myth (Goodley, 2014: 56). Butler asserts that:

to be a body is to be exposed to social crafting and form, and that is what makes the ontology of the body a social ontology. In other words, the body is exposed to socially and politically articulated forces as well as to claims of sociality—including language, work, and desire—that make possible the body’s persisting and flourishing.

This suggests that what gives life value—what makes it grievable, in Butler’s terms—is largely a social construct. The value we accord particular lives is reflected in the ways in which some lives are made less precarious and others more so. Precarity is also what we all have in common, and is thus perhaps why the issue of MAID resonates with our fears—both of our own vulnerability to pain and disease and the self-loss associated with the failure of others to recognize our worth (Butler, 2004b). But the decision of whether or not one’s life still has value will be shaped to some extent by norms of dignity and independence (Raymond, 1999; Wolfe, 1996). We revere independence while the lives to which we have become habituated are made possible only through a network of connections with institutions, knowledges, economic relations and so on. It is not that we are ever independent—it is just that the effects of power are invisible to those of us with normalized bodies. Critical disability scholars strive to make these effects visible, and in so doing, valorize not independence, but interdependence (Sherry, 2014; see also Nedelsky, 2011: 305).

If dignity is essentially an ‘aesthetic’ judgement, an ableist perspective on what gives life value surely heavily influences that judgement (Behuniak, 2011: 27). Moreover, it is a judgement that will likely have been internalized by many people experiencing the de-normalizing processes associated with serious illness (Campbell, 2008: 91). In popular culture suicide is often cast as an almost heroic act of resistance and the assertion of individual autonomy (Korálová, 2015; Somerville, 2001: 60). For disabled people death becomes a rational choice—perhaps the only rational choice—in the face of a failure to meet norms of independence and productivity. The flip side of this of course is the belief that those non-normative subjects who choose to continue to live—and make demands for the kinds of health care and services required for them to do so—might be cast as cowardly or irrational. What might appear to be the exercise of an aesthetic judgement concerning the form of one’s own life is not free from the operation of biopower (Tierney, 2006: 610).

What a dilemma. Prohibiting MAID outright subjects the individual to juridical power, informed by the biopolitically mandated obligation to live. The attenuated right to MAID offered by the Carter decision subjects the individual to medical power. But an absolute right to MAID also subjects him/her to power, as the individual’s appreciation of the value of his/her own life will be shaped by biopower and the norms of independence and dignity it produces.

At the same time it seems unreal to deny that there is a realm of individual choice here that ought to be respected—casting people who are affected by illness or disability as too ‘vulnerable’ to make important decisions for themselves can seem smug and paternalistic (Shildrick, 2008). Moreover, while we might acknowledge that suffering is in part a function of norms of independence and dignity, such norms may nonetheless have a profound impact on an individual’s subjective experience of suffering, and this should be taken seriously. In any case, if we wish to argue that ‘the right of the 21st century’ ought to be a right to health, decent standards of living and services for the disabled (Kolářová, 2015), there is no particular reason to believe that such rights will be achieved by forcing an individual to live under conditions that they find intolerable.

Medical assistance in dying: resistance and alterity

In ‘The risks of security’, Foucault seems to advocate a rather absolute right to a form of assisted suicide that does not require submission to medical power:

The idea of bringing individuals and decision centers closer together should imply, at least as a consequence, the recognised right of each individual to kill himself when he wants to under decent conditions [. . .] If I won a few billion in the lottery, I would create an institute where people who would like to die would come spend a weekend, a week, or a month in pleasure, under drugs perhaps, in order to disappear afterward as if erased.

In view of Foucault’s argument in the same piece that norms of health are constructs of medical power, it is clear that he does not intend this broad right to an assisted suicide as an assertion of a prediscursive liberal rights-bearing subject. Both Golder and Tierney understand this passage as a kind of thought experiment, where the encounter with death is not associated with suffering and despair, but is an occasion for reflection on life. Quality-of-life considerations in this analysis were not a matter of one’s ability to ‘take care of his or her own bodily functions [. . .] but were rather focused upon the moral and aesthetic quality of the life that the person had actually lived’ (Tierney, 2006: 630). In particular,

the intent of the exercise of claiming a right of death and in imagining death and its institutions differently is not so much to arrive at the formalization of a right of death but in the performative exercise of thought itself, in the present.

The result of all this seems to be that this kind of right, which ‘is both antidisciplinary and emancipated from the principle of sovereignty’ (Foucault, 2003b: 40) is one that will never be argued in a court or tribunal, that will never be cited in any sort of political struggle and, it seems, will never directly engage with biopower (Tierney, 2006). It provides a means through which we can imaginatively consider critically the meaning of our own lives. It is not clear to me, however, that Foucault’s right to die, whether it is just a thought experiment or a proposal for an unrestricted right to a joyful death, necessarily frees us from the biopower’s hold over us. If the problem is that juridical rationalities discursively place the subject in opposition to power, when in fact the subject is the product of power, we are left with the pernicious question of what constitutes the subject who engages in the sort of self-reflection that Foucault expects from the encounter with death. Where do our ideas about what constitutes a good life come from?

In the alternative, and on what is perhaps a more mundane, practical level, we might ask whether human rights litigation in MAID cases offers scope for provocations ‘at the margins’—provocations that could lead to creative possibilities and transformative social effects. Although the juridical rationality in Carter cast MAID as an individual right, we have seen that the right, in effect, requires direct engagement with medical power, whose expertise is required in order to make determinations of such things as capacity, informed consent and whether the individual suffers from an irremediable medical condition. While Carter and subsequent legislation is permissive of MAID, the lengthy ‘safeguards’ imposed provide many points of resistance to a request for MAID—not surprising given biopower’s mandate to preserve life. The possibilities for MAID to remake the subject may lie in these very points of resistance.

If we understood the right to MAID as purely a matter of an individual’s choice, it might let the broader society ‘off the hook’, as the logic of the juridical perspective will cast the choice as the free subject’s responsibility. In the debate concerning MAID, however, we have already seen that the nature of the subject who makes such a choice will be shaped by biopolitically produced norms of independence and dignity, as well as through norms of care available to those whose dependencies are outside of the norm.

On the other hand, the categorical rejection of death as an option also, in a sense, lets us ‘off the hook’. It means that society never has to face squarely the dilemma suggested by Foucault’s account of the right to health—a right that is contingent on culture, the state of medical technology and social resources. If suicide is something that cannot be contemplated, never mind spoken of, we never have to ask what resources we are willing to devote to making life worth living—which demands reflection on what, in fact, makes life worth living. We can simply require the person seeking death to go on living on our terms.

However, in order to access MAID, a person has to engage directly with medical power. Medical power, because its mandate is to preserve life, must ask why a person would choose death. If people seeking death cite a loss of dignity as a reason, the physician might counter by inquiring into how that experience of loss is shaped by widely held norms of independence. What kinds of alternative conceptions of independence might be offered, partly through providing services to assist the person in making a life they consider to be worth living, but also by reconsidering our own conception of what it means to be respected. More importantly, can we ever address these questions honestly if we insist that voluntarily ending life is a possibility no rational person would entertain?

The emphasis that the Supreme Court placed on autonomy in Carter is mirrored in some of the liberal approaches to the question of assisted suicide. For example, in the famous ‘Philosophers’ brief’ (Dworkin et al., 1997), ⁸ the authors attempt to cast the right to MAID in terms of respect for individual choice. The brief also argued that: ‘[m]ost of us see death, whatever we think will follow it—as the final act of life’s drama, and we want that last act to reflect our own convictions, those we have tried to live by’. (Dworkin et al., 1997) This suggests an image of a subject crafting a life according to a certain set of aesthetics, much as one crafts a work of art (Dworkin, 1993: 83; Pullman, 2016: 203–204). The identity of a subject depends in some way on the finitude of life, in the sense that the creation is only brought to completion by death, which must be on the subject’s own terms if the subject is to be self-creating.

However, a person’s convictions, his/her ideas about what might constitute a good life, are not set in stone. People who become ill or physically disabled might find that their lives are dramatically transformed, to the point where most of the activities that previously made life seem worth living, the abilities that gave rise to all their hopes and ambitions, even the way they defined themselves, are simply no longer available. But they also often find ways of remaking life, finding new possibilities where more familiar ones become out of reach. If our conception of what gives life value is the result of what we have come habitually to expect from our bodies and internalized norms of capabilities and independence, the reconstruction of this conception is necessarily a product of reflection rather than habit. Herein lies a certain potential for transformation through suffering. If power only asks how do we prolong life, giving an individual the right to MAID may force power to consider what makes life worth living.

These are not specifically the issues raised by the Supreme Court in either Carter or Rodriguez; however, the conditions and safeguards imposed by sections 241.1–241.31 of the Criminal Code—conditions that juridical rationalities impose largely to ensure that the individual ‘truly’ consents to MAID—could also be seen as points of resistance, where the individual faces medical power directly. The individual provokes power, challenging the mandate to preserve life by asking for death. The physician, in complying with the regulatory regime imposed on MAID, pushes back against the desire for death, inquires into the nature of the individual’s suffering and discusses possible alternatives to alleviate it. The individual may then push back in return. One could see in this process a very Foucaultian image of freedom and resistance in the landscape of contemporary power relations.

MAID under such conditions could become a thing to be reflected on by both the sufferer and social institutions. It is, however, important to remember that it is not the right itself that gives rise to such reflection. It is how we live in its ‘afterlife’—one that hopefully includes serious social and political engagement with power and how it operates. This process of reflection on the social aspects of dignity and suffering might, in an individual case, lead to either a decision to end life or a decision to affirm a transformed conception of the value of life, even in the face of suffering. Of course, one cannot meaningfully choose to endure suffering if one is deprived of the only means of escape.

The current Criminal Code provisions concerning assisted death includes a requirement that the Minister of Health make regulations ‘respecting the provision and collection, for the purpose of monitoring medical assistance in dying, of information relating to requests for, and the provision of, medical assistance in dying’. ⁹ The accumulation of information concerning individual cases will hopefully generate discussion among jurists, medical professionals and the general public concerning the conditions under which the value of life is brought into question that would never be possible if the termination of life was stigmatized and carried out in secret. It is in engendering these kinds of debates that we may find a connection to alterity—the reflection on what kinds of social subjects we might become.

Conclusion

We see in this discussion that juridical rationalities, specifically those associated with the assertion of Charter rights, might be useful as tactics. However, if we understand human rights litigation in terms of the free subject resisting the abuse of sovereign power, we will overlook the effect of biopower on constructing subjectivities. It is probably also ill-conceived to imagine that rights discourses can free us from the effects of power. We could, however, consider whether the assertion of a particular right presents ‘points of resistance’, where individuals will, in the future, come into contact with and offer a challenge to power, affording occasions for ‘reciprocal incitation and struggle’ (Foucault, 1982: 790). The right itself does not resolve these struggles, nor does it guarantee that any particular result will emerge from them. They simply provide the opportunity—one that may or may not be taken up—to examine critically power and subjectivity in modern life. It is, perhaps, not the right itself that is important. It is how we live in its afterlife.