Portugal’s Constitutional Court ruled Monday that legislation that would permit physician assisted death is unconstitutional.
The bill limited physician-assisted dying to terminally ill patients in severe pain, who are judged to be mentally healthy enough to understand what they were asking. In addition to legalizing physician-assisted dying, the bill removed criminal penalties physicians would have otherwise faced. After it was approved by Parliament in January, President Marcelo Duarte Rebelo de Sousa referred the bill to the court for an assessment of its constitutionality. Duarte Rebelo de Sousa raised two concerns, alleging that “the concept of intolerable suffering” and “definitive injury of extreme severity according to scientific consensus.”
The court found “the concept of intolerable suffering” constitutional, but “definitive injury of extreme severity according to scientific consensus” unconstitutional. The court focused on Articles 2 and 24 of the Portuguese Constitution. Article 2 guarantees respect for “fundamental rights and freedoms.” Article 24(1) declares human life inviolable and prohibits the death penalty.
On the first issue, the court determined “that the right to live cannot be transfigured into a duty to live in any circumstances.” The court went on to suggest the creation of a system that balances personal autonomy and safeguards to prevent misuse. Duarte Rebelo de Sousa alleged that the language in the bill concerning intolerable suffering was excessive and indeterminable. The court disagreed. The court wrote: “the concept of intolerable suffering, although indeterminate, is determinable in accordance with the rules of the medical profession.”
Duarte Rebelo de Sousa’s second concern focused on “the concept of definitive injury of extreme gravity”. This, the court found, did not sufficiently limit the cases that would make a patient eligible for physician assisted dying.
If Parliament amends the bill to incorporate the court’s concerns, approves it again, and Duarte Rebelo de Sousa signs it, Portugal will become the sixth country in Europe to legalize physician assisted dying.