Two major changes in the American legal landscape are in progress, although one change is further along than the other. I’m referring to the legalization of same-sex marriage and physician-assisted dying (PAD), a.k.a. physician-assisted suicide. Same-sex marriage is now legal in over thirty states and, depending on action by the Supreme Court, may soon be legal nationwide. PAD is currently legal in only four states, but initiatives to legalize the practice are underway in several other states. Just last Thursday, the New Jersey Assembly passed a bill that would legalize PAD in that state.
That these changes in the law are taking place concurrently is more than just a coincidence. They represent a continuation of a process that began in the late eighteenth century. A significant, transformative series of changes has occurred in many societies in the last two centuries, and these changes can best be described as an enlargement of the scope of individual autonomy.
The first changes were in the areas of freedom of conscience and freedom of speech. Many in developed countries now take these freedoms for granted, but before the Enlightenment it was not unusual for governments to mandate adherence to certain religious beliefs and to prohibit free expression. Unfortunately, recognition of the rights of the individual at first left untouched the institution of slavery and the subordinate status of women. However, the mid-nineteenth and early twentieth centuries, through the elimination of slavery and the emancipation of women, witnessed the extension of liberty to those who had previously been denied even the most basic freedoms. The enlargement of personal autonomy then continued with a marked increase in social mobility (people were no longer expected to stay within their “class”), laws that facilitated both marriage and divorce, and the recognition of reproductive rights. By the late twentieth century, people in many countries could speak freely, follow their conscience in matters of religion, pursue whatever profession they desired, and decide whether or not to have children.
Legalization of same-sex marriage and PAD is properly regarded as a continuation of the process of granting greater scope to personal freedom. People should be free to marry whomever they love, whether of the opposite sex or the same sex, and they should be allowed a measure of control over the most intimate decision a person can make, namely whether to hasten their death.
Moreover, just as there is a common thread to the movements for marriage equality and PAD, there are also common elements to the opposition to these movements. In reviewing the history of the increase in personal freedoms, one finds that two sets of arguments have been advanced in opposition to each effort to increase the sphere of personal autonomy: one set of arguments is inevitably based on religious doctrine, the other on harm to third parties that would allegedly result from the increase in personal freedom.
Religious doctrines have been invoked as the justification for prohibiting “heresy,” suppressing speech, denying equal rights to women, restricting the ability to marry and divorce, and outlawing both contraception and abortion. Similarly, religious precepts constitute the backbone of the opposition to same-sex marriage and PAD. Religious institutions have always wanted to exercise as much control over the individual as possible, but especially in the critical areas of marriage, birth, and death. The good news is that, although as a practical matter one may have to take this religious opposition into account, in a secular democracy religious precepts have no legitimate role to play in formulating public policy. Therefore, they have no legitimate role to play in the debate over marriage equality or PAD.
The “harm to others” argument has also figured prominently in debates about the scope of personal freedom. For example, some maintained that free speech needed to be suppressed because the spread of dangerous ideas could lead to unrest and violence. Granting equality to women would destroy the family, and so on and so on.
Echoes of these arguments appear in the debates over marriage equality and PAD. Because, at least superficially, these arguments are based on secular considerations, they do need to be addressed. But upon examination, one finds that they lack any substance.
Same-sex marriage is supposed to undermine the family and/or the institution of marriage. Were this true, there could be grounds for prohibiting same-sex marriage. However, there is no empirical support for these contentions.
Turning to PAD, legalization of assisted dying is supposed to lead to suicide mills, with hundreds of patients being coerced or pressured into a premature death, and a decline in palliative care, as the option of PAD will cause people to become callous to those in terminal conditions. Fortunately, we now have nearly two decades worth of evidence from Oregon, where PAD went into effect in 1997, and this evidence decisively refutes these contentions. There is no evidence that patients have been coerced or manipulated into requesting assistance in dying. With respect to palliative care, not only has the quality of palliative care not declined, but it has improved significantly.
The moral arc of the last two centuries, despite some occasional setbacks, shows an unmistakable trajectory toward the enlargement of personal autonomy. This is a good thing—a very good thing. People should have the right to give shape and direction to their own lives, and this entails the right to make the critical decisions in their lives, such as what to believe about God or gods, whom to marry, whether to have children, and whether to prolong their existence or hasten their death. Acceptance of marriage equality and PAD continues this trend toward greater personal freedom. Both same-sex marriage and PAD should be welcomed, not feared.