# introduction

In this paper, I make two basic claims about Canada’s regime of medical assistance in dying for people who do not have a reasonably foreseeable natural death (Track 2 MAiD) (1)<fnref n="1" />. First, that Track 2 MAiD is discriminatory against people with disabilities generally, and second, that it has a disproportionate, indirect impact on women with disabilities such that it also constitutes sex discrimination. It is important to unpack why women may be disproportionately at risk of having their lives ended under Track 2.

Both Track 1 and Track 2 MAiD require that the individual have a grievous and irremediable medical condition. This is comprised of a serious and incurable illness, disease or disability, an advanced state of irreversible decline in capability, and physical or psychological suffering that is intolerable to the individual and that cannot be remediated by means that are acceptable to that individual. The difference between these two tracks lies primarily in the fact that under Track 1, a reasonably foreseeable natural death is required whereas for Track 2, the individual need be nowhere near death. There are some additional safeguards associated with Track 2, such as a 90-day assessment period, but eager providers have learned how to circumvent many of those safeguards. An individual must be told what means are available to alleviate their suffering, but those means need not be provided, funded or made accessible to the individual. In other words, there is no legal obligation to attempt to alleviate the suffering of an individual accessing Track 2 other than through the provision of death.

While I am focusing on Track 2 as being discriminatory, I must start with an important caveat. While Track 1 and Track 2 are different in principle, we are increasingly learning that they blur in practice. The principle that differentiates them, of course, is that under Track 1 the person is *supposed*to be already dying (2). Track 1 was intended to deal with the suffering of a difficult death. Track 2, by contrast, deals with the suffering of a difficult life. In both contexts, death is put forward as the solution and presented as a form of medical treatment.

However, in Canada reasonably foreseeable natural death has been interpreted by some medical practitioners as only requiring that death be predictable from the irremediable medical condition, which, if correct, means that some individuals may have years left to live but nonetheless can be classified as Track 1 (2)<fnref n="2" />. Furthermore, some practitioners are willing to provide Track 1 on the basis that the individual has demonstrated a serious intent to stop eating or to refuse routine medical treatment like antibiotics (3). Thus, while we may have a principled difference between the two tracks, there are ways to circumvent what was intended as a safeguard but has been characterized by proponents as a barrier to access (4).

Before looking at the substance of section 15 of the *Charter*, Canada’s equality guarantee, there are two preliminary points that are important to understanding why Track 2 MAiD is discriminatory.

First, and this point is central to understanding the discrimination argument, every person who accesses Track 2 MAiD (as well as Track 1) has a disability in the eyes of the law. While not everyone who has a disability will qualify for Track 2, everyone who has a grievous and irremediable medical condition — which by definition involves a serious and incurable illness, disease or disability, an advanced state of irreversible decline in capability and intolerable physical or psychological suffering — is disabled in the eyes of the law. While there is no universal definition of disability in Canadian law, if one looks at definitions in human rights statutes (5-6)<fnref n="3" />, the *UN Convention on the Rights of Persons with Disabilities* (7)<fnref n="4" />, and other federal statutes (8,9), one will see that a grievous and irremediable medical condition satisfies every relevant legal definition of disability. This is true whether or not the person self-identifies as being disabled. Self-identification as disabled is complex in light of the stigmatization associated with the label of disability and the degree to which internalized ableism may prevent many people from attributing that label to themselves (10,11). But Canadian law does not distinguish between illnesses, diseases and other forms of disability. All of these come within the umbrella term of disability, especially when coupled with an irreversible decline in capability and intolerable suffering. From a legal perspective, everyone who qualifies for MAiD is disabled regardless of whether one identifies as such. This point is important because if everyone who accesses Track 2 MAiD is disabled, and no one who is not disabled can access it, then it becomes clear that the law draws a distinction based on disability — a prohibited ground of discrimination under section 15 of the *Charter*.

The second preliminary point is that MAiD is largely premised on a medical model of disability that constructs disability as a medical shortcoming or a flaw, a deviation from what is normal — something that medicine seeks to fix or eliminate (12). MAiD becomes an option when there are no other medical solutions available. It is notable that the General Comment No. 6 on Equality and Discrimination on the *UN Convention on the Rights of Persons with Disabilities* (7) starts by observing that a medical model of disability is incompatible with the Convention because “persons with disabilities are not recognized as rights holders but are instead ‘reduced’ to their impairments.” (13, p.2, para 8)

While there might be good reasons to have medical practitioners administering MAiD, and perhaps diagnosing whether a condition is irremediable, it is not apparent why doctors and nurse practitioners are the sole gatekeepers for MAiD. In fact, deciding whose suffering warrants a response of death is fundamentally not a medical decision but a normative one about whose lives may be worse than death. Doctors and nurse practitioners have no particular expertise in making this assessment. It is the medicalization of suffering, and the assumption that the suffering experienced by people with disabilities is caused primarily by that disability and is intrinsically different and worse than other human suffering, that leads one to believe that death might be preferable to life with a disability. But suffering is far more complex than simply the symptoms that may or may not accompany a particular disability. One’s access to the social determinants of health, for example, may well influence one’s ability to live a tolerable life with those symptoms.

This medical construction of human suffering may obscure the social factors that often contribute to and shape one’s perception of suffering. Those who can afford adequate home care (14), an accessible and even comfortable place to live (15), and have strong social connections (16-18), are more likely to perceive their suffering as tolerable and may be less likely to perceive themselves as a financial or emotional burden on others (17,18). This reality is compounded by the fact that studies suggest that doctors evaluate the quality of the lives of people with disabilities considerably lower than those individuals rate their own lives (19,20). This is the ableist lens through which people with disabilities interact with the medical profession, a framing that is only exacerbated by the intersections with racism and sexism within the medical profession (21-23).

<footnote n="1">I use Medical Assistance in Dying (MAiD) in this paper for convenience. However, I agree with other scholars that this term must be contested, especially in the context of Track 2 where individuals may be nowhere near the end of their lives and those lives are being ended by physicians and nurse practitioners.</footnote>

<footnote n="2">Catherine Frazee has documented the story of Julia Lamb, who initiated litigation to extend Track 1 to those who were not dying only to drop her case when she was told by an expert witness that she could qualify for Track 1.</footnote>

<footnote n="3">The Ontario Human Rights Code includes in its definition of disability “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness”, “a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language” and “a mental disorder”.</footnote>

<footnote n="4">The purpose of the Convention states that “[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”</footnote>
# DISCRIMINATION AGAINST PERSONS WITH
        DISABILITIES

Section 15 of the *Charter* reads:

> Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
> — 24

There are two steps to a discrimination analysis under section 15. First, it must be shown that the distinction made by the law is based on one of the enumerated (or analogous) grounds protected by section 15, like mental or physical disability. The second, and most important, step in the MAiD context is to show that that distinction is discriminatory against people with disabilities. I have already shown that everyone who qualifies for MAiD has a disability as that term is understood in law. The intolerable suffering of people with disabilities may be responded to with the option of death whereas that is not the case for the intolerable suffering of any person without a disability. But the law often makes distinctions on the basis of disability — for example, the law might provide financial benefits for people with disabilities that are not available to others. Equality in fact may require us to make distinctions based on disability that are necessary to level the playing field. Thus, the key question is whether the distinction drawn on the basis of disability is discriminatory.

The answer to the discrimination question depends on whether MAiD is properly constructed as a benefit to people with disabilities or a detriment, a subject on which there is considerable debate. Those who support MAiD argue that death may be a benefit to people who are suffering intolerably because it allows them to escape that suffering when other solutions to the suffering have failed (25-27). Those who are concerned about MAiD argue that death is generally conceived of as a detriment and that to posit death as a benefit, but only for people whose suffering can be linked to disability, is itself an ableist premise that is inconsistent with equality for persons with disabilities (2).

The Supreme Court of Canada has observed that people with disabilities have historically faced disadvantages that have been shaped and perpetuated by the notion that disability is an abnormality or flaw:

> As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration” that s. 15(1) of the *Charter*demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms
> — 28, para 56

This conception of disability as a flaw or abnormality is very much grounded in the medical model of disability. Disability is construed as a flaw that demands a medical response. And we assume that the suffering associated with disability is a medical phenomenon rather than a social one. The final step is to distort death into a form of medical treatment used to ‘cure‘ the suffering of disability. But death does not cure suffering; it eliminates the sufferer. So, this s. 15 analysis requires us to assess whether Track 2 MAiD perpetuates or remediates the historical disadvantage of people with disabilities.

The Supreme Court has also explained that laws which widen the gap between the historically disadvantaged group and the rest of society are discriminatory (29). Track 2 MAiD widens the gap between how we respond to the suffering of people with disabilities and how we respond to the suffering of others. That distinction lies at the core of the problem with Track 2. If your suffering is based even in part on an irremediable illness, disease or disability, death may be an appropriate solution to all your suffering, regardless of the role of social factors in that suffering. The fact that the *Criminal Code* is clear that intolerable psychological suffering alone is a sufficient basis for Track 2 MAiD clearly demonstrates that Track 2 is not necessarily about the physical suffering that may be associated with some disabilities. Psychological suffering is not limited to people with disabilities and yet access to MAiD is.

The law against murder makes an unequivocal statement that intentionally ending someone’s life is a harm regardless of whether the victim consents to the death. An Ontario man who allegedly used the Internet to sell suicide drugs to people who wanted to end their lives has been charged with multiple counts of first-degree murder (30-32)<fnref n="5" />. His victims wanted the drugs and voluntarily chose to consume them. Some, if not all, of those victims were almost certainly suffering in ways they perceived as intolerable. Yet, no one is suggesting that we should prioritize the victims’ autonomy and choice to die. Instead, we believe their suffering should have been responded to with suicide prevention in the broadest sense of that term. But if you are disabled, suicide prevention may fall off the table and your death can be funded by the state as well as encouraged, facilitated and caused by healthcare practitioners. Peters has noted that Track 2 MAiD has created a “killable class” (33). There is simply no way that such a “killable class” does not widen the gap between people with disabilities and the rest of society. It is profoundly stigmatizing to suggest that some people with disabilities might be better off dead.

Track 2 MAiD also fundamentally alters the relationship between persons with disabilities and their medical practitioners. Doctors are allowed to offer patients MAiD even where the patient has not raised it or suggested that death is an option they are considering. A medical practitioner suggesting MAiD is a signal that the practitioner has lost hope and an acknowledgement that they believe the person might be better off dead. Some people with disabilities may be deterred from seeing a physician, or from going to the emergency room where they fear being offered MAiD (33). The media is replete with stories of people being offered MAiD on their way into surgery for a mastectomy (34), or upon being diagnosed with cancer (35). In the recently filed constitutional challenge to Track 2 MAiD, the applicants argue that Track 2 MAiD may actually narrow choices:

> A health-care provider communicating to a person with a disability that the person could or should consider MAiD, and that death is an option for their suffering, can shape that person’s perceptions of their value, dignity and the degree to which they are, or are perceived to be, a burden. An offer of MAiD also communicates that their circumstances are hopeless and that the health care and other systems do not value their lives, and cannot be relied upon to save or support them. MAiD Track 2 thus narrows the range of options that are available, or that persons with disabilities may perceive as available, for dealing with suffering they are finding intolerable
> — 36

One could argue that the same logic applies to Track 1 MAiD which is almost certainly constitutional, given the decision of the Supreme Court of Canada in *Carter v Canada* (37). Everyone who accesses Track 1 MAiD is also disabled and being offered death. However, Track 1 does not distinguish on the basis of disability in the same way that Track 2 does. The fundamental distinction made by Track 1 is whether the individual has a reasonably foreseeable natural death. The distinction is made between how we treat people who are suffering in the process of dying and those who are suffering in the process of living. Death for Track 1 individuals is presumably inevitable and cannot be avoided, and the question is whether they can be eased into death with less suffering. Track 2 MAiD, by contrast, makes a distinction based on the cause of your intolerable suffering; the distinction is whether you are disabled or not. MAiD to deal with the suffering of life is different than MAiD to deal with the suffering of death<fnref n="6" />. I am not asserting that social suffering never contributes to MAiD deaths under Track 1. Rather, as Frazee explains: “[w]hen the threshold for MAID was suffering from a medical condition at the end-of-life, the discriminatory effects of the regime had been neutralized, with eligibility contingent upon one’s place along the trajectory of life, rather than one’s medical or disability status.” (2, p.55) I recognize that this distinction is fragile, however, if MAiD providers are willing to shift Track 2 patients to Track 1 if they refuse food and drink or decline basic medical care.

Another possible response to my discrimination argument is that no one is forced to access Track 2 MAiD — only those who choose it will receive it. If you feel threatened or harmed by Track 2 MAiD, just avoid it; just say no. However, the fact that Track 2 MAiD is contingent on the choice of the recipient does not necessarily insulate the law from s. 15 scrutiny. Choice must be assessed through the lens of ableism and sexism that shape both the choices available to people with disabilities and the choice made. The Supreme Court has consistently held that differential treatment can be discriminatory even if it is based on choices made by the individual — particularly where those choices are constrained by the kinds of systemic inequalities facing people with disabilities. As the Supreme Court said in the *Fraser*decision, you have to look at the social and economic environment in which choices play out to understand whether choice negates discrimination (38). We know that people with disabilities disproportionately live in poverty, and face unemployment and other forms of disadvantage that contribute to them being unable to remediate their social suffering (39-41).

Justice Abella stressed that the structural conditions in which people exist mean that some choices are made more often by people with “particular ‘personal characteristics’.” (38, para 90 [emphasis removed]) That is especially true of Track 2 MAiD where it is a response to intolerable suffering only for those who are disabled. What we are seeing with Track 2 is a choice disproportionately being made by those who are marginalized and those who are women. This should be a huge red flag for those concerned about social justice and yet it has been ignored and obscured by pro-MAiD rhetoric about choice.

Choice in the abstract is simply not a sufficient answer to the discrimination allegation. Those who promote choice as a justification for Track 2 fail to explain why this is a choice only available to people with disabilities. If MAiD is really about ending intolerable suffering, why is it not available to everyone who is suffering intolerably? And if choice is central to the analysis, why do we not prioritize choices that people with disabilities make to continue living or the choices of those who want to commit suicide for reasons unrelated to disability (39-41)<fnref n="7" />. Where choices are driven by state-sanctioned poverty, social isolation, a history of trauma, loneliness, or perceiving oneself to be a burden on others, it is problematic to construct state inflicted death as an autonomous choice. It may be a person’s only available choice but that does not make it an autonomous one.

Where the state has deliberately curtailed the range of life-affirming choices open to people with disabilities, a choice between intolerable suffering and death — as Frazee has explained — is a choice between what is bad and what is worse, and that is not an exercise of true autonomy (43, p.66-71). Of the people who received Track 2 MAiD in 2023, 49.2% cited being a burden to their loved ones or caregivers as one of the causes of their intolerable suffering and 47.1% cited loneliness or isolation (18). An alarming 70.4% of Track 2 recipients cited a loss of dignity (18). Track 2 MAiD recipients are disproportionately living lonely and isolated lives which they perceive to be undignified. None of that is inherent to disability. As Benedet has observed, “some choices have such profound consequences, and take place in the context of such inequality, that we ought to preclude them.” (43, p.50)

The focus on choice also obscures the harms caused by Track 2 to people with disabilities who are not seeking MAiD. These individuals are now forced to live in a country whose laws exempt the deaths of some people with disabilities from the crimes of murder and aiding suicide as long as those deaths are carried out by medical practitioners under the MAiD regime. People with irremediable disabilities are now required to engage with medical professionals and others who may believe they are better off dead. It is no longer taken for granted that all people with disabilities who do not have a reasonably foreseeable death should continue to live and that their lives are worthy of saving; Track 2 MAiD may lead those who are suffering to reassess whether their own lives are worth living. Briscoe (44) explains why it is harmful to lose the benefit of a default position that one’s life should continue.

> [E]ven if they never face the overt inquiry from others, [the person] must nevertheless settle the matter in their own mind: why am I still trying to live? Can I come up with sufficient reasons? Is society helping me find a reason to live? The mere offer—even the existence—of [MAiD] forces them out of default territory. Now they *must*choose.

For many, this so-called choice exacerbates suffering rather than relieves it. It adds to the burdens of those who already perceive themselves to be a burden (44).

In March 2025 the United Nations Committee reviewing Canada’s performance under the *Convention on the Rights of Persons with Disabilities*, comprised of international experts on disability, in its concluding observations, urged Canada to repeal Track 2 MAiD and not extend Track 1 any further. It confronted the choice issue directly highlighting Canada’s refusal to provide access to good choices:

> [T]he concept of ‘choice’ creates a false dichotomy, setting up the premise that if persons with disabilities are suffering, it is valid for the State Party to enable their death without providing safeguards that guarantee the provision of support, and on the basis of ableist assumptions that de-emphasize the myriad of support options that could allow persons with disabilities to live dignified lives, and about the systemic failure of the State Party to address the social determinants of health and well-being with regard to poverty alleviation, access to healthcare, accessible housing, prevention of homelessness, prevention of gender-based violence, and the provision of community-based mental health support and employment support
> — 41, para 19(b)

These observations have thus far gone unanswered by Canada.

<footnote n="5">At the time of writing there is some dispute about whether Kenneth Law should have been charged with murder or aiding suicide because his victims actually consumed the drugs themselves. The Supreme Court of Canada has heard an appeal in *R v BF*, 2024 ONCA 511 which may resolve this question. There is no dispute, however, that had Mr. Law injected those drugs into his victims, as is done in the overwhelming majority of MAiD cases, first degree murder would have been the appropriate charge.</footnote>

<footnote n="6">It is again important to refer to the caveat here that the scope of Track 1 has been interpreted so broadly that the differences between the Tracks may eventually have less significance.</footnote>

<footnote n="7">According to 2023 Statistics Canada data, individuals with disabilities experience roughly twice the rates of poverty and unemployment that individuals without disabilities experience. Individuals with disabilities, especially women with disabilities, also experience disproportionate rates of homelessness.</footnote>
# DISCRIMINATION AGAINST WOMEN

The most obvious discrimination caused by Track 2 MAiD is what lawyers refer to as “direct discrimination”, i.e., the very purpose of the law is discriminatory. The purpose of the law is to make death available as a means to respond to the intolerable suffering of some people with disabilities. Here the assertion of discrimination refers to a form of direct discrimination. But there is another type of discrimination in law referred to as “adverse impact” or “indirect discrimination” that applies where a law has a disproportionate impact on a protected group, even though that was not the purpose of the law (38). In other words, this discrimination may be completely unintentional but if the impact is adverse on a protected group under s.15, then the law may be discriminatory. Thus, I argue that Track 2 MAiD has had an adverse impact on women with disabilities. This reality of Track 2 MAiD has been largely ignored by Canadian feminist organizations (43)<fnref n="8" />, and obscured in public debate by reliance on numbers of MAiD deaths from Track 1. MAiD proponents focus on the fact that women may be more likely to suffer from MAiD-able chronic illnesses, which I do not dispute. However, the relevant question is why women are more likely to be suffering intolerably from these conditions. I make this argument not because I think this is the basis on which the law is likely to be invalidated. Rather, I use this argument as a device for confronting the particular dangers this law presents to women with disabilities who live at the intersection of ableism, ageism and sexism and often experience other intersecting forms of disadvantage.

Many more people die from Track 1 MAiD than from Track 2 and thus, when looking at overall MAiD numbers, the Track 1 numbers will always overwhelm the Track 2 numbers (18). Track 1 appears to have roughly equal numbers of men and women with slightly more men accessing it (18). It is important to stress, however, that numbers do not tell the whole story, nor even the most important part of the story. If women are disproportionately at risk of accessing Track 1 because of their history of trauma, because they perceive themselves to be a burden, or because they are socially isolated, that is cause for concern (43).

The Track 2 numbers, by contrast, make clear that Track 2 is more obviously gendered than Track 1. For instance, 59% of those who died from Track 2 in 2023 in Canada were women (18). The Ontario Coroner’s report comes in with 61% of Ontario Track 2 deaths as women (42).

These numbers are especially troubling in light of what we know about gender and euthanasia for mental illness from other jurisdictions. Nicolini, Gastmans and Kim found that, in Belgium and the Netherlands, 69 to 77% of those who received euthanasia based on a psychiatric condition were women (45). They note that the numbers on the gender breakdown for MAiD for mental illness map almost perfectly to the gender breakdown for attempted suicide. We know that at least in the Western world, roughly two thirds of those who attempt suicide are women even though men are more likely to die by suicide. This gender paradox is explained in part by the fact that women are likely to choose less violent methods of suicide and thus are less likely to succeed in bringing about their own deaths. Thus, the suggestion is that MAiD is providing women with a nonviolent means of committing suicide that is 100% effective. While that study relates to mental illness, 62% of those dying from euthanasia for mental illness also had one or more physical comorbidities (46), meaning that they might well have been eligible under Track 2 MAiD.

Once reasonably foreseeable natural death is eliminated from MAiD, the result is a law that makes it easier for disabled people to die by suicide. The idea that we can somehow differentiate people who are suicidal from people who have a settled intention to access Track 2 MAiD is problematic. Wanting to commit suicide because one is disabled does not transform death from suicide into some form of beneficent medical treatment. Kim has accurately described labelling Track 2 MAiD as treatment as “an especially cruel form of gaslighting.” (47) As Peters describes, the MAiD regime has created a form of socially acceptable suicide which may itself act as a source of social pressure encouraging a disabled person to apply for MAiD and serving as “a façade entryway to respectability and middle-class-sanctioned dignity” (48, p.214).

I acknowledge that this view is premised on a belief that suicide is something we should, as a society, try to prevent or at least minimize. In other words, I view suicide generally as a harm to be avoided and suicide prevention as an important social good (49,50). Others may disagree and see some suicide as a rational response to life circumstances (51,52). Whether one sees assisted suicide as harmful or beneficial, however, does not change the fact that receiving a fatal prescription and ending one’s life or giving a doctor permission to end one’s life through lethal injection is a form of suicide, if not a form of homicide, whatever the motivation. This is precisely why the MAiD regime is built around explicit *Criminal Code* exemptions from the crimes of murder and aiding suicide.

The important question is: What drives the fact that more women are accessing Track 2? This is a complex question that probably has many contributing factors and cannot be answered with certainty without much better data. However, we cannot ignore the possible role of the widespread systemic inequality that is still experienced by women in Canada, and especially by women with disabilities, in almost every aspect of social, political and economic life. In the following section, I briefly raise three factors that may well put women at heightened risk from Track 2 MAiD.

## Violence Against Women

It is well known that the types of violence women experience are different than that experienced by men. Overwhelmingly, violence against women and girls is perpetrated by men with whom they are in close personal relationships: a father, a brother, and most often for adult women, an intimate partner. And there is an important link between disability and male violence, with women and girls with disabilities facing higher rates of intimate partner violence (IPV) and higher rates of sexual violence throughout their lives (53,54).

An alarming 30 to 40% of women experience intimate partner violence in Canada, depending on how it is defined. The Government of Canada reports that among women who have been in intimate partner relationships, 44% — or about 6.2 million women aged 15 and over — reported experiencing some kind of psychological, physical, or sexual abuse (55). Women and girls are overrepresented among victims of IPV, with rates nearly four times higher than for men and boys (56)<fnref n="9" />. A history of intimate violence greatly increases the risk of suicide attempts. In one global study using evidence from the WHO multi-country study on women’s health and domestic violence, the authors found that IPV was significantly associated with suicide attempts in every location studied (57). Childhood sexual abuse and having a mother who had experienced IPV also increased the risk of suicide attempts considerably (57).

A recent English study by McManus found that women who have experienced domestic abuse were four times more likely to have attempted suicide and three times more likely to have done so in the past year (58). McManus analyzed the most recent edition of the Adult Psychiatric Morbidity Survey, which asked 7,000 people aged 16 and over in detail about their mental health. Among women who had attempted suicide in the past year, over half had experienced IPV in their lifetime, and a third had experienced it in the past year (58). Those who had experienced sexual abuse within a relationship had an even higher risk of suicide, and were seven times more likely to have attempted to end their life (58). McManus also observed — and this is important in the MAiD context — that women living in poverty, or who were unemployed, or could not work because of sickness or disability, were at a heightened risk of IPV (59).

Not only do women with disabilities face higher risks of male violence, but male violence is also disabling for women. This is both in the sense of causing physical injuries like traumatic brain injury and chronic pain, for example, but also psychiatric conditions like complex PTSD and depression (60)<fnref n="10" />. In one systematic review, observational data made clear that persistent pain is one of the most frequently reported health consequences of IPV (61). Chronic pain is also listed as one of the most common “other conditions” cited by 65% of all Track 2 MAiD recipients (18). We know that Indigenous women face alarming rates of physical and sexual violence and that immigrant women or those who are socially isolated for other reasons may also be particularly at risk (62,63). Being disabled makes people more susceptible to IPV which in turn is disabling, and IPV makes it more likely that a woman will attempt suicide. And now, in Canada, disability resulting from IPV may make one eligible for MAiD.

In Canada, at least until March 2027, a person cannot access MAiD on the sole basis of PTSD or depression — there must be some corresponding physical disability. But once there is a physical disability, we have no hesitation ending the lives of people with comorbid mental illness. A high number of women with PTSD and or depression have physical comorbidities (64,65).

Escaping male violence is also particularly difficult for women with disabilities. It may be much more challenging for women with disabilities to extricate themselves from a violent relationship, particularly where the abuser is in a caregiving role. Women with disabilities may have fewer financial resources, they may be less likely to be believed by professionals when they seek help, and disability may make it more difficult to defend oneself in a physical confrontation. A coercively controlling man can manipulate these physical and economic realities, making a woman feel all the more entrapped (66,67).

A majority of women who experience physical and/or sexual violence do not report that violence (68), so it is unlikely that they will report it to their MAiD assessor who may have no ongoing relationship with the woman involved. Of course, MAiD proponents will say that if a woman who has suffered IPV wants to die because of her resulting disability and intolerable suffering, we should let her — ending her life, we are told, enhances her autonomy (69). But if we understand male violence against women as an issue of systemic inequality in which the state is complicit, we are more likely to understand that offering state-facilitated death as a solution to state-facilitated inequality only compounds the inequality.

## Sexism Within the Medical Profession

Another systemic factor that is deeply worrying about gender and Track 2 MAiD is the well-established sexism within the medical profession. Sexism, combined with ableism, is a dangerous combination for disabled women. This intersection is evident on a variety of dimensions.

For example, the conditions from which women are disproportionately likely to suffer have historically been much less studied than conditions predominantly affecting men (70). Endometriosis, fibromyalgia, chronic fatigue syndrome, multiple chemical sensitivities, and migraines — all of which are disproportionately experienced by women — have struggled for research dollars (23). Where a condition or disorder is predominantly experienced by women, funding is comparably lower: “[t]he disparity between actual funding and the disease burden by sex is nearly twice as large for diseases more prevalent in females versus those more prevalent in males.” (71, p.5) Further, studies on more gender-neutral conditions like cardiac and stroke risk have tended to focus on male subjects, thus, making it more difficult to diagnose these conditions adequately in women and so they are more likely to go undiagnosed (72).

Women’s pain is also consistently undertreated. When women complain of the same symptoms as men for conditions like diabetes, cancer, coronary artery disease, stroke orthopedics and other conditions, they are less likely to be admitted to the ICU than men, they are less likely to be given pain medication in the emergency room, and they are more likely to be given psychotropic medication for the same symptoms as men (73-75). The opioid crisis has heightened the barriers to seeking adequate pain control, making opioid pain medication harder to access in Canada than a death by lethal injection (76). Thus, while women are overrepresented among those with chronic pain, women’s pain is more likely to be undertreated, thereby also making it more likely that their suffering becomes intolerable.

## Women Perceiving Themselves as a Burden

Women are socialized to be the caregivers in society. Thus, it is not a big leap to assume that when women are the ones needing care, they are more likely to perceive themselves to be a burden (77,78). As mentioned above, 49% of those who accessed Track 2 MAiD in 2023 expressed being a burden on their families as one of the reasons for their suffering (18). We do not have a gender breakdown for this form of suffering. I am not suggesting that men never perceive themselves to be a burden, but rather that the particular pressures on women to play a caregiving role, and their perceptions of themselves in that role, are evident throughout their lives.

Older women with disabilities also tend to be socially isolated. Men are more likely to abandon their female partners with disabilities than women are to abandon disabled men (78-80). In a 2009 study of over 500 patients, Glantz et al. (78) found that women with cancer were much more likely to be left by their partners than were men with the same diagnosis — 90% of the separations involved women as the unwell spouse being left by their male spouse. Female sex of the ill partner was the strongest predictor of divorce or separation in each of the three patient populations under study (78). In addition, women who were left by their male partners did less well medically on a number of variables — they were less likely to be able to die at home, less likely to be enrolled in clinical studies and more likely to take antidepressants than those who had a supportive spouse. It is notable that, in 2023, recipients of Track 2 MAiD were most likely to live alone whereas recipients of Track 1 MAiD were most likely to live with family members (18).

And finally, as Sheehy has pointed out, perceived burdensomeness and male violence often intersect. Being constructed as a burden may well be an integral part of a pattern of a coercively controlling relationship (43,81). Women in these relationships are made to feel of no value, a burden to society and to their families. It is notable that a recent UK study on so-called “mercy killing” revealed that overwhelmingly the killings of elderly persons with disabilities involved men killing disabled women (82). The potential that MAiD can be weaponized in such a relationship is a real concern (83), which will only be exacerbated in 2027 when MAiD on the sole basis of mental illness comes into force.

In response to my argument that women are disproportionately harmed by Track 2 MAiD, it might be argued that women have also, to a great extent, been the face of MAiD in Canada. Pullman has highlighted the prominent role of women in MAiD, both in terms of the plaintiffs in landmark cases and vocal MAiD activists and providers (84)<fnref n="11" />. He explores the thin version of autonomy that is used by these activists to promote MAiD, which focuses on the individual as an autonomous actor, unencumbered by social context, and demonstrates that this view fails to incorporate an ethic of care which “trades on a richer and more nuanced sense of human flourishing.” (84, p.18)

Seen through a lens of equality under section 15 of the *Charter*, the view of autonomy espoused by scholars like Downie and Llewellyn (85), is more consistent with a formal approach to equality where everyone is assumed to have the same starting point and where equality simply requires that we treat everyone the same. Aside from the fact that our MAiD law does not treat everyone the same, this view fails to reckon with the Supreme Court’s mandate that equality be looked at substantively and that the social context in which choices play out is important to understanding substantive inequality (38).

<footnote n="8">Two exceptions of note are the Disabled Women’s Network (DAWN) who has actively opposed Track 2 and the Feminist Alliance for International Action (FAFIA) who made a submission to the UN CRPD Committee in Geneva arguing that Track 2 MAiD is discriminatory against disabled women.</footnote>

<footnote n="9">In this report, IPV included “physical and sexual assault, harassment, uttering threats and other forms of violence that reach the criminal threshold.”</footnote>

<footnote n="10">The authors found that “[o]f those who experience physical IPV, up to 92% may suffer a brain injury (BI) as a result of trauma to the head or hypoxia via strangulation. BI ranges in severity from mild trauma (mTBI) or concussion, characterized by transient symptoms affecting mental processes such as memory and executive function, to moderate and severe BI resulting in disorders of consciousness lasting days to years. IPV-BI is often complicated by neurologic and mental health comorbidities, including depression, anxiety, post-traumatic stress disorder, and substance use disorder.”</footnote>

<footnote n="11">Pullman notes that “the dominant voice that has emerged in this ongoing discourse is increasingly the familiar voice that champions a narrow view of personal autonomy and individual rights. We must question whether this voice speaks to the needs of the most vulnerable members in our midst, namely those contemplating the end of their existence.”</footnote>
# CONCLUSION

I have argued here that Track 2 MAiD is discriminatory against all people with disabilities, but that it also has a disproportionate impact on women with disabilities. I make the sex discrimination claim to highlight what has been largely ignored in the literature. Track 2 MAiD does not have an equal impact on the privileged and the less privileged. A law that purports to offer death as a form of medical treatment to address the suffering of people living with disabilities is discriminatory and a particular danger to those within the broader umbrella of disability who are the most marginalized.

As Peters has noted, by framing MAiD as being exclusively about choice, we have obscured the role of the state in the lives of people with disabilities (48). The state plays an important role in perpetuating the disadvantage experienced by people with disabilities. This law posits death as an affordable and convenient response to the suffering of people with disabilities, whereas supports like housing and home care are neither convenient nor affordable. One of the plaintiffs in the Ontario litigation notes that they had contemplated MAiD because they could not get adequate pain medication since the opioid crisis, even though they had no history of drug abuse (36). Pain relief is increasingly hard to access while lethal injections are increasingly accessible. How does that make sense?

Track 2 MAiD exceptionalizes the suffering associated with disability as different and inherently worse than other human suffering. But many of the factors motivating MAiD Track 2 deaths are social factors that are not unique to disability but may be exacerbated by it. While disability may contribute to that suffering, the failure to meet the needs of people with disabilities also contributes to the intolerable suffering experienced disproportionately by disabled women. We would never tolerate this for any other protected group under our *Charter*, other than people with disabilities. In fact, it would be unthinkable to suggest a MAiD regime that only ends the lives of Black, Indigenous or transgender people. We would understand why such a law would be discriminatory — why we cannot isolate one marginalized group who may disproportionately experience suffering and dress up death as a desirable solution to that suffering. Yet, when that targeted group is people with disabilities, we do not recognize the discrimination. We see disability as unique and as sometimes justifying death. In fact, for people with disabilities, death is equated with compassion. Track 2 MAiD is only compassionate if we believe that some people with disabilities are in fact better off dead. While I have focused on the inequality of women and the disproportionate numbers of dead women, I could have discussed the suicide crisis in Indigenous communities, the dangers of MAiD in Canadian penitentiaries, especially for Indigenous people with disabilities, or the lack of access to adequate medical care for transgender Canadians with disabilities. Track 2 MAiD preys on our most marginalized citizens.

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