The Constitutional Court of Portugal ruled that the bill allowing physician assisted death is unconstitutional. The bill restricted physician-assisted death to terminally ill patients in excruciating pain who were deemed psychologically capable of understanding what they were asking for. The bill not only allowed physician-assisted dying, but it also eliminated the criminal charges that doctors would have faced otherwise. President Marcelo Duarte Rebelo de Sousa referred the bill to the court for a constitutional review after it was passed by Parliament in January. Duarte Rebelo de Sousa expressed concern about “intolerable pain” and “definitive injury of severe seriousness according to scientific consensus.”
The court upheld the constitutionality of “the principle of unnecessary pain,” but ruled that “definitive injury of severe seriousness according to scientific consensus” was unconstitutional. Articles 2 and 24 of the Portuguese Constitution were the subject of the court. Article 2 ensures that “fundamental rights and freedoms” are respected. Human life is declared inviolable in Article 24(1), which also forbids the death penalty.
On the first chapter, the court held that “the right to live cannot be turned into an obligation to live in any circumstances.” The court went on to propose that a framework be developed that strikes a balance between personal autonomy and protections to prevent violence.
The bill’s terminology about unbearable pain, according to Duarte Rebelo de Sousa, is unnecessary and indeterminable. The court was not convinced. “The definition of unbearable pain, though indefinite, is determinable in accordance with the laws of the medical profession,” the court wrote. The second point of contention for Duarte Rebelo de Sousa was “the definition of conclusive injury of extreme gravity.” The court determined that this did not go far enough in limiting the circumstances in which a patient would be eligible for physician assisted death.
Portugal will become the sixth European country to legalise physician assisted dying if Parliament amends the bill to resolve the court’s concerns, passes it again, and Duarte Rebelo de Sousa signs it.