What Belgium’s child euthanasia law means for America and the Constitution

Belgium has just passed a law allowing euthanasia for children. The Low Countries allow for suicide and doctor-assisted suicide, but Brussels is the first to open to door to dealing death to children of any age.

If the prospect of youngsters being helped to off themselves seems horrifying, do not worry – the law has “safeguards” to ensure all the killing will be purely voluntary: a psychologist has to certify that the child has “capacity or discernment” to understand what they are doing.

Aside from its inherent significance, Belgium’s move requires us to revisit Roper v. Simmons, the 2005 Supreme Court case that ruled it inherently unconstitutional to apply the death penalty to anyone under 18. European nations had long waged a moral campaign against America’s allowance of the death penalty for 16-18 year olds, which they called barbaric and savage. After all, minors are not really responsible for their actions. America was labelled a human rights violator, an international outlier.

Finally, in Roper, the Court caved in to this pressure. Indeed, it cited the European position as support for its conclusion – other countries do not allow for such a thing.

Why can a 17 year-old rapist-murderer not face capital punishment? Because, as Justice Kennedy wrote in a 5-4 decision, science has shown that minors, even 17-year-olds, are too immature to truly understand the consequences of their decisions, or the meaning of life and death. Juveniles are prone to “impetuous and ill-considered actions” that they should not be made to lose their life for, even if the action involved taking the life of another.” Moreover, juveniles are susceptible to peer pressure, Kennedy wrote. (Of course, one of the concerns in allowing euthanasia is external pressure from doctors, parents and others.)

Yet now we see Belgium thinks kids are responsible enough; the Netherlands similarly allows euthanasia as young as 12. These countries may be the way of the future, as they have been in other areas of progressive mores. Roper misread their belief system. It is not one of paternalistic concern for youth. Rather, a system that permits the euthanasia of innocent 12 year-olds but not the punishment of guilty 17-year-olds is one that exalts autonomy without culpability.

Of course, with the juvenile death penalty, only a small fraction of minors who committed capital crimes would be sentenced to death. On a case by case basis, hosts of psychologists, jurors, and judges would have to be convinced that the particular defendant truly knew what they were doing.

So it comes out that the juveniles cannot really make accountable decisions when it comes to killing people, unless it is themselves. Or to put it differently, Belgium will not hold children responsible when they hurt others, but gives them free license to hurt themselves. Perversely, in Belgium, the youths who are considered grown up enough to be euthanized have not done anything wrong at all, unlike Simmons, who tied up his victim and thew him off a bridge.

Belgium’s law shows the folly of basing constitutional decisions on the practice of other countries: though we all eat at McDonalds, American and Belgian notions of decency are fundamentally different. In American, an age-unlimited euthanasia law would be unthinkable, in Belgium it apparently has 75 percent popular support. American intellectual elites became uncomfortable being the only Western nation with a juvenile death penalty; the Belgians do not blush at standing out.

Roper
was wrong to look across the seas, and the campaigners against the 16-18 year old death penalty were wrong to accept the conceit of European moral superiority and American ugliness. But to the extent that Roper did base its decision on a theoretically unified consensus about juvenile responsibility, Belgium’s action, which may be followed by other northern European countries, gives an occasion to overrule it.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.

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