I Thought This Was the Land of the Free

Last updated on: October 9, 2015 at 10:38 am by D. G. Hart

I Thought This Was the Land of the Free 2015-10-09T10:38:16-04:00 D. G. Hart

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Imagine my surprise when I learned that California’s new law that makes physician-assisted suicide legal actually has restrictions.

The reason for the surprise comes from the high bar set by Justice Anthony Kennedy who in Planned Parenthood v. Casey opened wide the gates of liberty. Among the broad assertions of freedom were these:

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. . .

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Consider the case of Caitlyn Jenner. She cannot not create a new gender identity without following the procedures of the medical establishment. For instance, before Caitlin can go all the way with “gender assignment surgery” (why does this sound like prose produced by HAL from 2001 A Space Odyssey?), she needs to produce:

Documentation that the individual has completed a minimum of 12 months of successful continuous full time real-life experience in their new gender, across a wide range of life experiences and events that may occur throughout the year (for example, family events, holidays, vacations, season-specific work or school experiences). This includes coming out to partners, family, friends, and community members (for example, at school, work, and other settings).

Note:
The medical documentation should include the start date of living full time in the new gender.
Verification via communication with individuals who have related to the individual in an identity-congruent gender role, or requesting documentation of a legal name change, may be reasonable in some cases;

It’s harder to change gender than obtain a gun. No peace, no justice.

Now comes word that California is putting restrictions on taking your own life (in consultation with your physician). Alan Jacobs notices that California requires an illness to rise to a certain threshold and wonders if it is a tad arbitrary:

The law opens the choice of physician-assisted suicide to persons with a “terminal disease,” and defines “terminal disease” as “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months.” Surely someone will say, “Why six months? Why not a year — or more — if ‘reasonable medical judgment’ concludes that death is overwhelmingly likely?” That is, there’s an arbitrariness in the choice of six months as the (pardon the term) deadline for this choice which makes it likely that there will soon be pressure to extend it.

Moreover, there’s a great deal of wiggle room in the phrase “reasonable medical judgment.” One doctor may deem a disease fatal that another finds eminently treatable; and even when fatality is for all intents and purposes certain, people often surprise their doctors. Some cancer patients have lived far beyond the utmost time predicted for them; others die much more quickly than expected. (My father was one of the latter.)

Notice too how much power the medical profession has in all of these matters. And here we thought two weeks ago that Pope Francis was the man with all the authority.

The lesson appears to be that freedom has limits. Even legislators pursuing bad policy recognize it. So why don’t judges?

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