Today the Judiciary Committee of the US Senate begins grilling President Trump’s nominee to fill a vacancy on the Supreme Court. While no one disputes Neil Gorsuch’s qualifications for the job, Democrats fear that he will restore a 5-4 conservative majority on the bench. As well, they resent the fact that Republicans blocked a debate about President Obama’s nominee last year.
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In 2004, Neil Gorsuch was awarded a doctorate in legal philosophy by the University of Oxford, the British institution where he studied as a Marshall Scholar. Gorsuch’s doctoral thesis on euthanasia and assisted suicide served as the basis for his 2006 book, “The Future of Assisted Suicide and Euthanasia.” At Gorsuch’s confirmation hearing that year, Sen. Lindsey Graham asked Gorsuch about his writings on assisted suicide and euthanasia, noting that Gorsuch had been “prolific.”
Gorsuch assured Graham that his “personal views” would have “nothing to do with the case before” him in any situation. Having said that, though, Gorsuch added that his writings on assisted suicide and euthanasia had “been largely in defense of existing law” and were “consistent with the Supreme Court’s decisions in this area and existing law in most places.”
When Gorsuch first began his studies at Oxford in the early 1990s, euthanasia and assisted suicide were both high-profile and controversial issues. In 1997, in Washington v. Glucksberg and Vacco v. Quill, the Supreme Court rejected challenges to the constitutionality of state laws banning assisted suicide. But, Gorsuch emphasized in his book, the justices who concurred in that ruling left open the question whether such laws would be unconstitutional in the specific cases of adults who were terminally ill. “Thus, far from definitively resolving the assisted suicide issue,” Gorsuch suggested, “the Court’s decisions seem to assure that the debate over assisted suicide and euthanasia is not yet over—and may have only begun.”
Gorsuch’s prediction appears to have mostly missed the mark: The debate over assisted suicide and euthanasia largely subsided in the years following the publication of his book. Assisted suicide remains illegal in 44 states, while all 50 states ban euthanasia, and there have been few signs that the issues could make their way to the Supreme Court anytime soon. But Gorsuch’s book on assisted suicide and euthanasia nonetheless remains relevant, not only for what it tells us about his views and his writings more generally, but also for what (if anything) we might be able to glean from the book that might shed more light on his views on abortion.
Much of Gorsuch’s book is devoted to an exhaustive (but not exhausting) survey of the history of assisted suicide and euthanasia, the legal and ethical arguments in favor of the two, and court cases – in the United States and the United Kingdom – dealing with the right to die. Gorsuch is sharply critical of experiments with allowing assisted suicide and euthanasia in the Netherlands and Oregon. In the Netherlands, Gorsuch observes, “it appears that, for every three or four acts of voluntary euthanasia, the Dutch regime generates one case of a patient being killed without consent.” Moreover, he continues, euthanasia and assisted suicide are often motivated less by the desire to alleviate pain or respect patient autonomy than by a physician’s subjective belief that the patient’s quality of life is “degrading” or “hopeless.”
And in Oregon, which allows “capable” adults with terminal diseases to request medication to end their lives, the law does not require physicians to refer patients who want to commit assisted suicide to mental health professionals. Gorsuch cites data raising the possibility that other factors, such as depression or isolation, rather than terminal illnesses, may be driving assisted suicide in Oregon. Reporting requirements in the state are minimal, he adds, such that “Oregon officials admit that they have no idea how often state law is violated, and no way to detect cases of abuse and mistake.” Given the many flaws in the two regimes, he points to the potential costs if assisted suicide and euthanasia were legalized more broadly – particularly the prospect that they could lead to pressure, “real or imagined,” for the poor, minorities and the elderly to commit assisted suicide, in part because of the high costs of health care in the United States.
Although Gorsuch was correct at his confirmation hearing that his book defends existing laws prohibiting assisted suicide and euthanasia, the book offers an alternative ground to justify them: “the idea that all human beings are intrinsically valuable and the intentional taking of human life is always wrong.” Dubbing his rationale the “inviolability-of-life principle,” he characterizes it as a “middle path” between two extremes – on the one hand, the idea that life is “the most important good that must always be maintained” and, on the other, the idea that a person could die or be killed based on someone else’s judgment about his quality of life.
Gorsuch’s “middle ground” would, he takes pains to emphasize, still allow terminally ill patients to refuse or discontinue treatment; it would also allow medical personnel to prescribe high doses of morphine or other painkillers when death is near. The “critical, rational moral line,” he explains, is intent. When medical personnel and the patient’s family are seeking to relieve the patient’s pain, or the patient doesn’t have a “suicidal impulse” but opts to discontinue or refuse treatment “out of a recognition of the inevitability of death,” doctors should be permitted to prescribe painkillers and discontinue treatment even when they know that death will result and may even be accelerated. But, he cautions, doctors cannot do these same things when they do so with the intent to cause the patient’s death.
Allowing doctors to prescribe an overdose of morphine or discontinue care with the intent to relieve a patient’s physical suffering, even knowing that it will also result in death, but not allowing it with the intent to cause death may seem like a somewhat artificial distinction. But, in Gorsuch’s view, the distinction would also solve a constitutional conundrum: If – as essentially all states allow – patients can refuse care or discontinue treatment, why shouldn’t they also have a right to a doctor’s assistance in committing suicide? Although other efforts by scholars and lawyers to distinguish assisted suicide and euthanasia from the right to refuse treatment fall short, Gorsuch contends, “an intent-based distinction may work sufficiently well to withstand a constitutional equal protection challenge. Assisted suicide and euthanasia differ from the right to refuse in that they necessarily entail an intent to kill and, with it, the judgment that a patient’s life is no longer worth living. Such an intention may be present in a decision to refuse treatment, but, I suggest, it need not be.”
Gorsuch devotes an entire chapter to an analysis of Planned Parenthood v. Casey, the Supreme Court’s 1992 decision reaffirming a woman’s right to an abortion, and Cruzan v. Director, Missouri Department of Health, the court’s 1990 decision upholding the state’s refusal to allow the parents of a woman in a “persistent vegetative state” to terminate treatment on her behalf. The question for Gorsuch is whether the two cases support an interest in autonomy, protected by the Constitution, that could in turn support a right to assisted suicide and euthanasia. In his view, they do not. He maintains that the court’s decision in Casey should be read more narrowly, pointing to the portion of the decision in which a plurality of the court argues “that the doctrine of stare decisis, or respect for long-settled law, required continued adherence” to the court’s 1973 decision in Roe v. Wade, which recognized a woman’s right to terminate her pregnancy.
In a footnote, Gorsuch stresses that his analysis in his book is limited to assisted suicide and euthanasia; he has no intent “to engage the abortion debate.” But he doesn’t stop at that. Instead, he acknowledges that “abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if, a fetus is considered a human life.” Gorsuch then seems to pull back again, reminding his readers that in Roe the Supreme Court “unequivocally held that a fetus is not a ‘person’ for purposes of constitutional law” – suggesting, perhaps, that the issue has already been taken off the table. However, when Gorsuch makes the same statement elsewhere in the book, he again cites Roe, but he also cites a dissent by Justice Byron White, for whom Gorsuch clerked. Gorsuch characterizes the White dissent as “arguing that the right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not.” Gorsuch may not share White’s view, but his decision to include it is somewhat curious given what he has elsewhere described as the court’s “unequivocal” holding.
Is Gorsuch’s reference to the White dissent a veiled hint into his own views on abortion or merely an effort to give equal time to an opposing view? It is impossible to know for certain, and we aren’t likely to learn anything more at his confirmation hearing. If Gorsuch is confirmed, we may have to wait for the next challenge to laws regulating abortion to reach the Supreme Court.
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