Justin Collings is Associate Dean for Research and Academic Affairs and Francis R. Kirkham Professor of Law in the J. Reuben Clark Law School at Brigham Young University.
On 26 February 2020, the German Federal Constitutional Court ruled that the state cannot criminalize assisted suicide. The judgment struck down § 217 of the German Criminal Code (Strafgesetzbuch), which made it a crime to offer assisted suicide as a professionalized service. (The law did not apply to individual doctors who helped their patients to end their lives.)
The basis of the Court’s ruling was Article 2(1) of the German Basic Law, which enshrines the right to the free development of one’s personality, in connection with Article 1(1), which proclaims the sacrosanctity of human dignity. Across several decades, the Court has derived from these two provisions a robust series of constituent rights—the general personality right (allgemeine Persönlichkeitsrecht); the general freedom of action (allgemeine Handlungsfreiheit), which extends to virtually every human act or admission; the right of informational self-determination (Recht auf informationelle Selbstbestimmung); the right to the integrity of information systems; the right to state recognition of the gender with which one identifies; and more. Now the Court has added to this list the right to take one’s own life and, as needed, to secure other’s assistance toward that end.
The Court has long held that personal autonomy and self-determination form the essence of Article 2(1). In their assisted dying judgment, the justices added that the general personality right encompasses the right to a self-determined death. As an exercise of personal autonomy and self-determination, an informed and deliberate decision to end one’s life must be recognized and respected by society and the state.
In principle, the Court added, this right knows no limits. It is not confined to cases of serious illness or to the twilight of life. The right is guaranteed in all circumstances of life and all stages of one’s existence. It is also not subject to societal norms or ethical mores. In essence, the justices explained, an individual’s decision to end his or her life eludes “any evaluation on the basis of general values, religious commands, societal models for dealing with life and death, or considerations of objective rationality” (paragraph 210). The right to a self-determined death goes to the heart of the Basic Law’s promise of dignity and protections of the human personality. It is of fundamental importance to questions of personal identity, individuality, and integrity.
The challenged law, in the Court’s view, restricted that right in a serious way. That being so, the limitation could be justified only if it survived a strict proportionality inquiry. The justices found that it didn’t.
The Court’s proportionality analysis was unusual. The Court ruled that the law served valid purposes—counteracting the possible normalization of suicide, for instance, or preventing persons being pressured toward suicide by others—and that the law was rationally related to those purposes. The law thus passed the legitimacy and suitability prongs of the proportionality test. But the Court then skipped the test’s third prong—the necessity or least-restrictive-means prong. There was no need to assess the law’s necessity, the Court explained, because it was manifestly disproportional.
On this last point, the justices explained that, because the law seriously infringed personal autonomy, the last stage of the proportionality test—the balancing stage, or proportionality in the narrow sense—must be especially strict. The law’s legitimate purpose was to preserve personal autonomy, but by criminalizing assisted suicide services the legislature had, for practical purposes, made personal autonomy impossible. The law deprived much more autonomy than it secured.
It was true, the Court acknowledged, that the Basic Law imposed upon the state a duty to protect life—by means of the criminal law if necessary. But in the context of self-determined death, that duty did not apply beyond ensuring that the choice to end one’s life is really one’s own. Apart from ensuring authentic individual choice in the matter, the state must not interfere.
The Court hastened to add that the state remains free to take measures of general suicide prevention, in particular by working to make life more tolerable and suicide less tempting. But the state can’t evade its duty to make life more livable by eliminating the constitutional right to a self-determined death. In a key passage, the justices explained: “Where the protection of life runs counter to the protection of autonomy, it contradicts the central understanding of a community that places human dignity at the centerpiece of its order of values and thus commits itself to respecting and protecting the free human personality as its supreme constitutional value” (paragraph 277). Section 217, then, disproportionately restricted the right to a self-determined death and was therefore null and void.
It is a very strong judgment. The Court has taken a clear stance on a controversial topic. Although it has been overshadowed by the Covid-19 pandemic and the Court’s judgement on the European Central Bank’s public-sector asset-purchase program (PSPP), the assisted dying judgment remains a landmark. It raises pressing questions about the Court’s autonomy jurisprudence moving forward. I will flag only one of them.
That question deals with abortion. As is well known, the German Court has ruled (in 1975 and again in 1993) that the state’s duty to protect human life requires it to make abortion unlawful. In its assisted dying judgment, the Court acknowledges these abortion judgments as one instance in which the state’s duty to protect life requires it to marshal the coercive power of the criminal law. At first blush, nothing in the assisted dying judgment unsettles that abortion jurisprudence. But the strong language about not directing the protection of life against the exercise of personal autonomy would seem to have some bearing on the abortion context, as would the Court’s insistence that the state might take measures to deter suicide but must not constrain autonomy by banning it.
There is an obvious difference, of course, in the two contexts. In the abortion context, the state restricts a woman’s autonomy to protect another (the Court has explicitly held that an unborn child both possesses dignity and enjoys the right to life); in the assisted dying context, the state restricts autonomy to protect individuals from themselves. Even so, the assisted dying judgment might portend a new direction—at the very least, it adopts a new tone—in the Court’s ongoing efforts to balance the state’s sometimes conflicting duties to honor individual autonomy and to protect human life.