Assisted Suicide the Italian Way

On March 16th, Italy made an unexpected yet significant step toward recognizing end-of-life rights – not through national legislation, but via a regional law. More than five years ago, the Italian Constitutional Court (ItCC) ruled that assisted suicide must be permitted under specific conditions. Yet, Parliament’s inability to legislate has left this right in legal limbo. Now, recent regional actions could break the deadlock. The Italian region of Tuscany is setting an example for other sub-national legislatures to pass laws on the matter. In doing so, however, regional assemblies might overstep their competences and trigger constitutional litigation. This blog post argues that constitutional courts, and the ItCC in particular, should not stifle this kind of activism – especially when it steps in to uphold judicial mandates that the national legislature refuses to enforce.

From Strategic Litigation to Strategic Regional Legislation

The approval of a law to implement the 2019 ItCC judgement by Tuscany Region comes after a shift in strategy by Associazione Luca Coscioni, the NGO that has always been at the forefront of advocating for the recognition of end-of-life rights in Italy.

Initially, the strategy was to engage in acts of civil disobedience to ultimately challenge the constitutionality of the violated bans. This is how, in 2019, the ItCC came to strike down the provision of the Criminal Code that punished the act of assisting another person in committing suicide. Then, after unsuccessfully postponing its final judgment for a year to allow Parliament to amend the unconstitutional absolute ban, the Court affirmed the right to third-party assistance in suicide for anyone who (a) suffers from an incurable illness, (b) experiences physical or psychological suffering they find intolerable, (c) is kept alive by means of life support treatments, and (d) remains capable of making free and informed decisions.

To challenge the discriminatory nature of such requirements, Italian activists recently assisted a person in dying in Switzerland who was not dependent on life-sustaining treatments. However, in a 2024 decision, the ItCC upheld its original ruling. The Court also made clear that, since the 2019 judgment required a public authority within the national health service to verify the eligibility conditions, even where such conditions had been struck down, assisting someone in committing suicide abroad would still have been punishable under current legislation. This is likely to bring the original civil disobedience strategy to an end, at least for now.

But the strictness of the requirements set by the ItCC was not the only problem. In fact, without a law implementing the 2019 judgment, administrative procedures for verifying the four conditions remain entirely discretionary and have often required civil litigation to impose time limits on public health authorities. To overcome this legal uncertainty and maintain political pressure on Parliament, Associazione Luca Coscioni eventually shifted toward a more institutional strategy, urging regions to pass laws on assisted suicide. That was an unusual approach, but it proved effective.

The Competence of Italian Regions to Regulate Assisted Suicide

The political campaign to press regional legislatures to regulate assisted suicide divided Italian legal scholarship and public authorities over whether regions actually have the competence to do so.

According to Art. 117, para. 2 of the Constitution, the State has exclusive legislative powers in the fields of civil and criminal law, and in determining the minimum levels of benefits relating to civil and social entitlements.

Some scholars and the government contended that those powers prevent any regional regulation on assisted suicide. Others, along with the independent bodies overseeing the respect of regional Statutes of Piedmont, Emilia-Romagna and Tuscany, argued that a regional legislative power, although limited, does exist on the matter.

Indeed, under Art. 117, para. 3 of the Constitution, regions have concurrent legislative authority in the field of health protection. This means that regional legislatures can enact laws in this area, while the State retains the power to establish the fundamental principles. According to ItCC case law, this legal basis allows regions to adopt norms concerning the organization, procedures, and use of public funding in the healthcare sector. In the case of assisted suicide, the 2019 judgment defined fundamental principles nationwide, determining the conditions for the legitimacy of assisted suicides, qualifying them as medical treatments, and setting minimum procedural constraints. As with any other treatment, it should then be up to the regions to regulate organizational aspects, such as time limits for verifying eligibility conditions, costs, etc. These aspects pertain to administrative law and do not impact civil or criminal law. In principle, the State could regulate these specific aspects as well, by setting a minimum level of service to be ensured throughout the national territory (Art. 117, para. 2, lit. m). The exercise of this competence would pre-empt regional laws, even if already in force. However, the absence of such a set minimum does not preclude regional legislation.

The law passed by Tuscany Region establishes a procedural framework for accessing assisted suicide in the cases provided by the ItCC. It creates a multidisciplinary medical commission to evaluate requests and oversee treatments, sets a time limit of approximately 35 days for the entire procedure, and ensures full cost coverage by the regional health administration. Importantly, the law affirms its provisional nature, pending future national legislation. This is precisely what existing constitutional case-law allows regions to do. Assisted suicide, though, is not just any medical treatment, which may lead the Court to a different assessment of the scope of regional competences than in the past.

Regional Legislative Activism on Trial

The approval of a regional law on end-of-life rights, along with fears that other pro-assisted suicide regions might follow suit, sparked renewed debate over the need for a national law. The idea of approving regional laws to implement the ItCC judgment was originally criticized by both left- and right-wing parties who argued that the procedural framework should not vary from region to region. The day after the law’s enactment, a pro-life association petitioned the government to challenge it before the ItCC. A constitutional complaint can be filed within 60 days, and while the government has yet to make an official announcement, based on its previous stance on the unconstitutionality of regional actions, it is likely to do so. What the ItCC would rule in a constitutional challenge, however, is very hard to say.

On the one hand, the Court has historically leaned towards the State in state-regional conflicts concerning legislative competences, adopting a strict interpretation of regional powers. This reflects a longstanding skepticism, dating back to the Constituent Assembly, that regional autonomy could undermine national unity and the effectiveness of the State’s actions and reforms. Moreover, Parliament (where the right-wing holds a majority) recently elected four constitutional judges, shifting the equilibrium within the ItCC towards a more conservative stance.

On the other hand, however, the government’s position is substantially weakened by the fact that, despite judgments in 2018, 2019, 2022, and 2024 openly requesting Parliament to legislate on end-of-life rights, no national law implementing the ItCC rulings is yet in force (nor is one on the way). There is something hypocritical about asserting the exclusivity of a legislative competence that one clearly does not want to use due to political opposition to a constitutional court decision. All in all, striking down the regional law would mean, for the ItCC, acquiescing to the State’s breach of its own order.

Instead, the Court has something to gain from admitting some legislative activism by regions. In Italy, as in most constitutional states, activism to implement the constitution has traditionally been judicial. This has resulted in an Italian debate on “taking back constitutions”, which frames the Court’s activism, particularly on fundamental rights, as an attempt to restrict the political dimension of constitutional law and the powers of other constitutional bodies, advocating for more political decisions to be made outside courts. Putting the theoretical debate on the role of constitutional courts aside, concentrating political decision-making in hard cases – particularly when part of the scholarly debate or society views it as overstepping their competences – does risk eroding courts’ authority in the long run.

In this case, however, we have a democratically elected assembly – though not national – advancing a constitutional interpretation that permits better implementation of an ItCC judgment. Regions are not looking to create division but rather to act in support of republican political unity by stepping in to fulfill a constitutional obligation that the parliament is deliberately refusing to meet. The Court would do well to recognize an ally and thus begin sharing its heavy burden of constitutional enforcement. In fact, both progressive and conservative judges should have an interest in upholding the ItCC’s authority by admitting sustainable forms of constitutional activism aimed at implementing its decisions – especially if such activism, for once, comes from bodies that have a more direct democratic legitimacy and can be more easily held accountable by the people.