In his Senate confirmation hearings, Neil Gorsuch gave little away. His extensive but ultimately unrevealing answers to senators’ questions did not show the workings of his heart—what various Democrats described as the object of their inquiries. Practiced, garrulous, tedious, combative, and smugly civil, the judge repeated stock answers that deflected from his constitutional philosophy and his more controversial court decisions, such as those that favored corporations or the religious liberty of non-church entities. “I am a judge, I am my own man,” Gorsuch repeated, enforcing Republicans’ collective and transparent theme: When one dons the robe, their personal opinions, religious or otherwise, are irrelevant.
Despite claims of objectivity—“My job is to apply the laws you write,” he told lawmakers—the type of justice that Gorsuch will be is not a complete mystery. His philosophy is apparent in the cases he has decided. And, on matters of life and death, his philosophy is also evident in his book, The Future of Assisted Suicide and Euthanasia, published by Princeton University Press in 2006.
Life issues, especially abortion, likely pushed many religious conservatives to vote for Trump, because they wanted to secure an anti-abortion justice to fill the seat vacated after Antonin Scalia’s death. Senators repeatedly questioned Gorsuch about his views on abortion during his hearings—he revealed little—and some Democrats cited his rulings affecting women’s health as reasons to block his nomination. Senate Democrats ultimately did block Gorsuch, but Republicans were able to carry forward his confirmation anyway, changing the rules of the Senate in a historic vote to do so. As the dust from the contentious confirmation settles, it’s worth noting that Gorsuch’s nomination, in some ways, owes its provenance to the anti-abortion movement, making his own bioethical views all the more worth revisiting.
The Future of Assisted Suicide and Euthanasia is a resounding rebuke of the legalization of aid in dying (the term preferred by proponents, just coming into use at the time Gorsuch was doing his research). The book is not specifically about abortion, and the term is not even listed in the book’s index. Still, social conservatives have long defined their “pro-life” ethic as a “seamless garment,” covering a person’s life from birth through death. In this “consistent life” philosophy, abortion and stem cell research, as well as euthanasia and assisted suicide, are of a whole cloth—one is only defensible so much as the others are. “Once we open the door to excusing or justifying the intentional taking of life as ‘necessary,’ we introduce the real possibility that the lives of some persons (very possibly the weakest and most vulnerable among us) may be deemed less ‘valuable,’ and receive less protection from the law, than others,” Gorsuch writes in the book, using language long employed in the anti-abortion wars (and frequently quoted by the media since his nomination).
Gorsuch has never ruled on an abortion case. In the book, he dispassionately references the arguments in Roe v. Wade that legalized abortion. Yet, Gorsuch uses “consistent life” language throughout the book—Chapter 10 outlines a “consistent end of life ethic”—in a way that has reassured anti-abortion groups. “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong,” Gorsuch writes early in the book. (The caveat, “by private persons,” leaves room for the death penalty, a “consistent life ethic” frequently left out by conservatives.)
The book began as Gorsuch’s doctoral dissertation while he was a student at Oxford University. (The text has recently come under fire for allegedly lifting passages from other sources without proper citation.) John Finnis, a conservative Catholic professor and well known natural law theorist, was Gorsuch’s dissertation advisor. Natural law grew out of the teachings of the thirteenth-century Catholic priest and Dominican friar Thomas Aquinas, who wrote that it meant “nothing else than the rational creature’s participation in the eternal law,” the law of God. Gorsuch grew up Catholic and attended a Jesuit high school, though he now attends an Episcopal church. His book, now more than a decade old, bears many of Finnis’s natural law influences.
Natural law’s definitions are contested today, but it has been famously claimed by other leaders in the judiciary and legislature, notably Justice Clarence Thomas. Natural law has become controversial, as proponents—including Finnis—have employed it to argue against same-sex relationships and abortion.
The first half of Gorsuch’s The Future of Assisted Suicide and Euthanasia is more small “c” catholic than large “C,” however. He eschews explicitly Catholic or religious arguments in favor of jurisprudence. He outlines four arguments that are derived from judicial decisions in two prominent 1997 cases: Washington v. Glucksberg and Quill v. Vacco, both of which dealt with the constitutionality of aid in dying. In the first case, Harold Glucksberg and three other doctors challenged Washington state’s 1997 Natural Death Act in order to show that prescribing a lethal dose of medication to a terminal patient was constitutional according to the 14th Amendment. The case won in district court but was ultimately denied by the Supreme Court.
In the second case, Timothy Quill, also a physician, challenged New York’s ban against aid in dying. Quill’s efforts regarding aid in dying were well known; in 1991 he had written a landmark article for the New England Journal of Medicine in which he described prescribing barbiturates to a patient who was dying of leukemia. Although the prescription was ostensibly for Trumbull’s inability to sleep, her desire to hasten her death was understood by Quill. He was never charged for a crime.
Like Glucksberg, Quill also failed in the courts. The United States Supreme Court, in a 9-0 decision, ruled that aid in dying was not guaranteed under the Constitution. Although unanimous, the decision resulted in six different judicial opinions, leaving open various interpretations for future discussion.
The first question that Gorsuch examines in The Future of Assisted Suicide and Euthanasia deals with judges’ concerns that historical precedent prevents aid in dying from being constitutional. Those seeking aid in dying were reacting to new medical technologies—advanced cancer therapies, new techniques of “life” or physiological support—that prolonged death (and patients’ pain) and had not been considered before by law. Jill Lepore writes at The New Yorker that Gorsuch “has his doubts about the history test,” which he outlines in the book’s “The Debate Over History” chapter. This stance is a slight diversion from Scalia, who Lepore writes “spent much of his career arguing for the importance of history in the interpretation of the law.”
The second question under Gorsuch’s consideration regards fairness and equal protection. How can aid in dying be provided to only some, say the terminally ill, and not others, like the mentally ill? Gorsuch discusses the challenges of determining patient consent when a patient is mentally incompetent or too young to make decisions for themselves. He draws a bright distinction between refusing medical treatment—which he argues should be legal—and seeking aid in dying. He argues that the intent of the prescribing doctor determines the legality of an action.
The third question Gorsuch asks is if the “due process clause of the Fourteenth Amendment creates a constitutional guarantee of ‘self-sovereignty,’ embracing all ‘basic and intimate exercises of personal autonomy.’” Whether these “substantive rights”—the issues of “marriage, procreation, contraception, family relationships, childrearing, and education”—included aid in dying was disputed by the courts.
Yet, questions of autonomy and substantive rights are central to Planned Parenthood v. Casey, which reaffirmed the right to abortion, Gorsuch notes. He refrains from criticizing the Casey decision; he simply does not believe that the decision can fully be used to uphold legal aid in dying. He makes this argument, seeming to dismiss the portion of the Casey decision that would, according to many, include aid in dying:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of the liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
To elucidate autonomy, Gorsuch points us to Cruzan v. Director, Missouri Department of Health, cited in various rulings of both Glucksberg and Quill, which determined that patients had the right to end or remove medical treatment because of the “common-law rule that forced medication was a battery,” as Chief Justice William Rehnquist wrote. Does that right extend to aid in dying, Gorsuch asks, or is aid in dying part of one’s “lifestyle choices,” a phrase long used to shame and disparage legal abortion. Of course, in jurisprudence, abortion and aid in dying legislation have always been intertwined: The question of when life begins—and what its value is—is innate to the question of when life ends. As Richard Doerflinger, the Associate Director of Pro-Life Activities at the United States Conference of Catholic Bishops, once told me, one’s life “isn’t one’s own.”
Gorsuch’s final question in the first half of the book examines whether “society as a whole would be improved or worsened” by legalization of assisted suicide, citing fears that the mentally ill, the disabled, or elders would be coerced into ending their lives prematurely. At the time that Gorsuch’s book was published, these fears were already being refuted by the data coming out of Oregon, where aid in dying had been legal for nearly a decade. Critics had claimed that the state’s law would lead to elder abuse, coercion of patients, or a “slippery slope” where patients who were not terminally ill or mentally capable of making their own medical decisions would be harmed. In 2006, the year that Gorsuch’s book was released, sixty-five people received lethal medication via the law; forty-six used it to end their lives. There were no reports of abuse.
Today, nearly 20 years after Oregon’s law went into effect, such fears remain unfounded. In 2015, 218 patients in Oregon received a prescription to aid in dying, but only 132 used it. According to the Oregon health department, most of those patients were enrolled in hospice (where they had access to pain relief), and they died at home—the place where a majority of Americans in surveys say they wish to die.
Washington state passed the Death with Dignity Act, which was modeled on Oregon’s law, in 2008. Four more states have since followed: Montana (2009); Vermont (2013); California and Colorado (2016). At any given time, at least a dozen states have active bills to legalize aid in dying. Gorsuch’s predictions were in part true: The Oregon “experiment” set the stage for other states to adopt aid in dying laws, but his recommendations for the judiciary on how to counter the movement’s progress—protecting a traditionally conservative definition of “the “inviolabillty,” or sanctity, of life—have often proven unsuccessful or unheeded.
The language of much of Gorsuch’s book is dated and jarring to those who have worked for end-of-life rights for decades. Gorsuch consistently uses “killing” or “committing suicide” for aid in dying. In reality, the underlying disease is the killer. As desperate terminal patients have long countered, they are not suicidal and their killer is their illness—not a prescribing doctor or a lethal medication. Death, regardless of the means, is guaranteed. This fact makes their decision not about how they die (although medication is the least traumatic means possible) or when they die (each person is free, according to the laws, to decide the time of ingestion), but about the most important, most present question of their every minute: how much pain they can bear.
While researching my own book on end-of-life care in the U.S., I found it impossible to deny the physical and emotional pain of dying patients who sought a way to live—they desperately wanted to live—their last weeks and days without pain. Robert Baxter, who brought the case that made aid in dying legal in Montana, was not suicidal. He no more wanted to kill himself than you or me. But he knew that his death was inevitable. In his affidavit to the court, Baxter wrote that he could only avoid impossible suffering by being fully sedated. “My family would be forced to stand a horrible vigil while my unconscious body was maintained in this condition, wasting away … while they waited for me to die.”
The Montana State Supreme Court ultimately ruled that Baxter had a right to receive lethal medication, but it was too late. He had already died. Perhaps it is a lack of knowledge about how these patients suffer that allows legal theorists like Gorsuch to claim lofty ideals about the quality and inviolability of life. Otherwise, the denial of the inherent protections and compassion of the law, indeed, of the ability of aid in dying laws to provide compassion in the face of this suffering, seems coldly cruel and the most damning aspect of this book.
Ann Neumann is author of The Good Death: An Exploration of Dying in America and a visiting scholar at the Center for Religion and Media at New York University where she writes the column, “The Patient Body,” for The Revealer. She has written for The New York Times, The Baffler, Harvard Divinity Bulletin, and Guernica magazine, where she is a contributing editor.