:format(webp)/cdn.vox-cdn.com/uploads/chorus_image/image/53082291/633558406.0.jpg)
Neil Gorsuch has not publicly stated whether or not he thinks Roe v. Wade was correctly decided. But if you read his one published book, The Future of Assisted Suicide and Euthanasia, his position on right-to-life issues becomes exceptionally clear, and it’s not particularly difficult to infer what they imply for his thinking on abortion.
Gorsuch’s core argument in the book is that the US should “retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong." The “private persons” bit there is telling — Gorsuch elaborates, "I do not seek to address publicly authorized forms of killing like capital punishment and war."
Nor does his argument explicitly address abortion. But many of the book’s arguments apply equally well to both euthanasia and abortion — the latter of which could be considered the intentional taking of human life by private persons by a judge inclined to enact Gorsuch’s principle.
And make no mistake: Gorsuch sees this argument as having legal implications, beyond merely moral ones. At the end of the book, he advances an argument that laws allowing assisted suicide could be unconstitutional on equal protection grounds, and argues that the Equal Protection Clause could be interpreted as including his "inviolability-of-life principle.” If applied to abortion, that argument could easily be used to contend that not only is abortion not constitutionally protected, but that the Constitution actually requires laws banning abortion.
To be clear, Gorsuch never explicitly states that he thinks this argument should be used that way. But for reproductive rights supporters, the argument should raise many red flags nonetheless.
Gorsuch thinks the “inviolability of life” could be in the Constitution
:format(webp):no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/7926725/John_Finnis_on_After_Dark_26th_June_1987.jpg)
Most of the book focuses not on the law per se, but on moral arguments. It grew out of a doctoral dissertation Gorsuch wrote at Oxford, where he studied as a Marshall scholar. His adviser was John Finnis, a hugely influential conservative Catholic legal philosopher who is a prominent defender of a "natural law" approach to jurisprudence. Finnis’s work attempts to provide a rigorous, secular philosophical justification for the approach to ethics and law that follows from Catholic social teaching. Gorsuch isn’t a Catholic (he belongs to a quite liberal Episcopal congregation), but his book makes clear he shares Finnis’s view that the law and morality are not easily extricable.
At the end of the book, after many chapters arguing for his view that human life can never be taken by private actors and arguing against assisted-suicide supporters like Ronald Dworkin and Peter Singer, Gorsuch provides an intriguing argument for why this moral stance of his could have legal significance.
"The inviolability-of-life principle is strongly associated with the concept of human equality; the two are mutually reinforcing ideas," he writes. That invites the possibility of a challenge to laws allowing assisted suicide on the grounds that they discriminate against the disabled, or the terminally ill, by making their lives subject to termination by medical professionals acting in “good faith” without those professional facing any legal punishment.
Gorsuch strongly implies he thinks a challenge on these lines could, and should, succeed. He contends that when a law involves a marginalized group like disabled people, that demands more stringent review, perhaps including review under intermediate or strict scrutiny, legal standards that require laws serve a compelling government interest if they’re to be found constitutional.
This argument jibes strongly with disability rights activists' arguments against assisted suicide, which focus on the potential for abuse, the potential for family members and doctors to pressure disabled people to kill themselves contrary to their own wishes, and for cases of depression to lead to euthanasia because the depressed party happens to also have a physical disability. Most disability rights activists view assisted-suicide laws as dangerous invitations to discrimination against disabled people.
But one line in the book indicates the equal protection argument could extend further, and apply not only to euthanasia but also to abortion. "Any line one might draw among human beings for purposes of determining who must live and who may die ultimately seems to devolve into an arbitrary exercise of picking out which particular instrumental capacities one especially likes," Gorsuch writes.
The problem here is that most lines one could devise beyond which abortion is banned and before which it is permitted are based, in some sense, on a fetus’s capacities: its potential to survive outside the womb, its ability to feel pain or formulate desires, etc. Birth is an exception; if you believe in an autonomy-based right of women to have abortions in all circumstances, then you need not worry about the capacities of the fetus. But the Supreme Court has made distinctions in the past based on the trimester of pregnancy, or whether the fetus is “viable” outside the mother. Gorsuch suggests that capacity-based distinctions like this might be illegitimate.
That could have huge implications for his abortion jurisprudence. For one thing, if you take this line of argumentation all the way, then you could argue that state laws discriminating between fetuses on the basis of their capacities violate equal protection. That would imply that not only is there not a right to abortion, but states do not even have the right to allow it; fetuses have a constitutional right to live.
To be clear, Gorsuch has said nothing like this. His specific views on abortion remain unarticulated. But his line of reasoning opens the door to this conclusion in a provocative way.
Gorsuch presents euthanasia advocates as heirs to a toxic history
:format(webp):no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/7926751/GettyImages_50677217.jpg)
One of the most revealing sections of book as to Gorsuch's overall attitude is chapter three, a historical overview of Western thought on suicide and euthanasia. The point is to provide some clue as to whether a right to die is deeply rooted in tradition and American history — a matter with serious legal significance.
Under a doctrine known as “substantive due process,” the Supreme Court has over the past century interpreted the 14th Amendment to not just guarantee that legal proceedings be carried out fairly but also protect certain fundamental freedoms from excessive regulation by the state. That’s the basis upon which the Court has determined that the Constitution protects the right to contraception, to abortion, to consensual sex, and to same-sex marriage.
Determining just what freedoms are protected is a matter of strong methodological dispute, but a widely held position among many jurists is that to be protected by substantive due process, a liberty or freedom has to be deeply rooted in tradition or American history. That can lead to somewhat awkward places. In 1972, the Court struck down a Massachusetts law banning the distribution of contraceptives to unmarried people, despite the fact that in many states bans like that were themselves a longstanding tradition, which would seem to run against the idea that the right to contraceptives outside of marriage had a strong historical basis.
Gorsuch himself seems to be very skeptical of using history to defend substantive due process claims, noting that in the contraceptive case, the "result can be defended fully, without contortions over historical 'levels' and even without reference to due process doctrine, as an equal protection decision simply and quite straightforwardly requiring the same access to contraceptives for married and unmarried persons alike." This, tellingly, gives the same result but doesn’t provide much basis for thinking that both married and unmarried people have a right to contraception.
With that context laid out, Gorsuch proceeds to sketch out the attitudes toward suicide displayed by everyone from Plato to Aristotle to Roman law to St. Augustine to St. Thomas Aquinas to English common law and the practices of the American colonies. But he really gets going when it comes to the embrace of euthanasia by the late 19th/early 20th century eugenics movement, which viewed the practice as a way to, often involuntarily, prevent the proliferation of “feeble-minded” people in society.
Gorsuch goes to great lengths to demonstrate just how mainstream the view that doctors should kill disabled people was:
Clarence Darrow of Scopes Monkey fame proclaimed, "Chloroform unfit children. Show them the same mercy that is shown beasts that are no longer fit to live." Novelist Sherwood Anderson and physician Abraham Wolbarst, two future members of the Euthanasia Society of America, openly argued that society had a duty to kill those with defects because they unnecessarily drained community resources.
Madison Grant, a New York attorney and Yale Law graduate who also served as a trustee of the American Museum of Natural History and cofounded the American Eugenics Society, proclaimed that "[t]he laws of nature require the obliteration of the unfit and [a] human is valuable only when it is of use to the community or race."… In 1939 Ann Mitchell, an ESA cofounder, welcomed the advent of World War II as a "biological house cleaning." She counseled "euthanasia as a war measure, including euthanasia for the insane, feeble-minded monstrosities."
Of course, euthanasia did become a war measure, specifically for Nazi Germany, which launched the T4 program the same month it invaded Poland; about 200,000 disabled people were killed in various Nazi euthanasia efforts. And the effort was substantially inspired by American euthanasia advocates. Gorsuch notes that Adolf Hitler himself wrote to Madison Grant, describing Grant’s pro-eugenics book Passing of the Great Race as "his Bible," and stated that he had "studied with interest the laws of several American states concerning prevention of reproduction by people whose progeny would, in all probability, be of no value or be injurious to the racial stock.”
Understandably, association with Nazi atrocities destroyed the reputation of eugenics, and by extension euthanasia, in the United States. But within a few decades, arguments for euthanasia began gaining currency as a way to enhance the autonomy and ease the suffering of people at the end of their lives, quite apart from eugenic considerations. Most contemporary advocates explicitly and strenuously reject that legacy and argue that legalizing euthanasia and assisted suicide has nothing whatsoever to do with involuntary killings of the disabled.
While Gorsuch certainly doesn’t equate today’s euthanasia advocates with eugenicists, he does argue quite persistently that the differences are often slight, and that contemporary bioethicists supporting euthanasia from the 1960s and onward have been far too comfortable with killing people who do not themselves agree to be killed:
Joseph Fletcher, father of situational ethics, an Episcopal priest, and author of Morals and Medicine (1979), spent much of the 1960s, 1970s, and 1980s arguing for the movement's "original task as the [Euthanasia Society of America] perceived it." Fletcher called upon the euthanasia movement not only to press for assisted suicide and voluntary euthanasia, but also to advocate euthanasia for "helpless newborns or minors still too young to make any input into decisions about when to stop life-prolonging treatment."
Lie earlier ESA members, Olive Ruth Russell, psychologist and author of Freedom to Die: Moral and Legal Aspects of Euthanasia (1975), sought to extend legal euthanasia to infants with birth defects. Hearkening back to the Malthusian concerns of the social Darwinists, Russell viewed euthanasia as a means of combating the "surging rise in the number of physically and mentally crippled children."
From here, Gorsuch glides seamlessly into citing passages from prominent ethicists like Dworkin or Singer that seem to endorse involuntary euthanasia. Dworkin, for instance, wrote that respecting individual autonomy means honoring a woman's request to be killed should Alzheimer's-induced dementia set in, even if once that happens the woman no longer wants to die. Singer, perhaps the most notorious of any euthanasia proponent, has argued for the justifiability of early infanticide, particularly in the case of disabled children, drawing the fierce opposition of disability rights advocates.
“Many of the policies they proffer would embrace not just a right to die, but a duty of certain persons to do so — and do so in some cases regardless of whether they consent," Gorsuch writes. He argues that it’s “hard to disagree” with the conclusion of the historian Ian Dowbiggin, who wrote that “today's defenders of the right to die often echo the justifications of euthanasia first uttered" by eugenicists.
This obviously gives one a very strong sense of how Gorsuch would rule on end-of-life cases brought before the Court. But it also suggests something about his attitude toward abortion. Some early abortion advocates in the US were — as pro-life activists today are extremely eager to point out — also proponents of eugenics, with Planned Parenthood founder Margaret Sanger being perhaps the most famous example. By tying euthanasia to eugenics, Gorsuch is implicitly tying abortion to eugenics as well.
And within the world of contemporary moral philosophy, the defense of abortion is inextricably linked with the defense of assisted suicide and euthanasia. Dworkin laid out a comprehensive theory covering both in Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom, arguing that only a particular view about how to respect the sanctity of human life can justify bans on the practices, and that it is illegitimate for the state to privilege one such view over others.
Singer’s defense of abortion and his defense of euthanasia of infants derive from identical premises: that neither fetuses nor infants are beings capable of wanting to continue living, so they have no preferences in that regard that other people are obligated to honor. Judith Jarvis Thomson, whose “A Defense of Abortion” is perhaps the single most influential philosophical article on the subject, has defended assisted suicide on similar, personal autonomy–based grounds.
Given that he paints arguments like these as heirs to the ideas that literally produced Nazi war crimes, it’s not hard to guess what Gorsuch thinks about their application to abortion.
Gorsuch is sympathetic to a limited view of due process
:format(webp):no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/7926765/50784382.jpg)
The most explicit the book gets on the topic of abortion is its analysis of Planned Parenthood v. Casey, the landmark 1992 case in which the Supreme Court upheld Roe v. Wade but allowed certain restrictions on abortion nonetheless. Casey is relevant to the debate over euthanasia because of its comments on how the Court should determine which rights are guaranteed by substantive due process and which are not.
While Gorsuch never plainly states his own views on substantive due process, he lays out those of Justices Hugo Black, Antonin Scalia, and Clarence Thomas at some length, and very sympathetically. Black is identified with the idea that the due process clause of the 14th amendment applied the Bill of Rights to the states. Previously, the first 10 amendments were thought only to apply to the federal government. Congress could make no law abridging the freedom of speech, but state legislatures could. Black thought that by guaranteeing all people due process of the law, the 14th Amendment “incorporated” the Bill of Rights and applied it to states.
But he also thought that substantive due process could go no further than that. It could not contain a right to privacy, to sexual freedom, to abortion or marriage or (certainly) assisted suicide. While Scalia accepted a broader view of substantive due process early in his tenure, he later flipped and declared that he could no longer "accept the proposition that [due process] is the secret repository of all sorts of other unenumerated, substantive rights."
Gorsuch's sympathetic recounting of this argument is not a conclusive indication of his own views. For one thing, Gorsuch notes that even if you take this view, you could think Roe v. Wade is correctly decided on other (for instance, equal protection) grounds. But it is revealing, and suggests he's at least sympathetic with the side of the Court that has voted to overturn Roe and other substantive due process–based rulings. It also suggests a limit to his conservatism. In the early 20th century, substantive due process was used to argue for “freedom of contract,” which led the Supreme Court in cases like Lochner v. New York to strike down limits on working hours, minimum wage laws, and other economic regulations. This view has been revived in conservative legal circles in recent years, but Gorsuch’s take on substantive due process suggests he doesn’t think the Constitution mandates libertarian economic policy.
Gorsuch’s comments on Casey bolsters this interpretation of his views. In the Casey opinion, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter argued, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." If that test, meant to provide a more stable basis than reliance on history, is binding precedent, it could form the basis of a right to assisted suicide, which reflects a particular view on the part of the dying person of the meaning of their life.
But Gorsuch argues that it cannot be binding. For one thing, it's not necessary for the result of Casey, which can be justified on the grounds of stare decisis — the Court was merely upholding its prior ruling in Roe, out of respect to settled law. For another, Gorsuch argues the test might "prove too much": "If the Constitution protects as fundamental liberty interests any 'intimate' or 'personal' decisions, the Court arguably would have to support future autonomy-based constitutional challenges to laws banning any private consensual act of significance to the participants in defining their 'own concept of existence.'" That opens the door to legalizing drugs, polygamy, dueling, prostitution, and various other activities. A lot of people might be willing to bite that bullet, but Gorsuch appears not to.
That dismissal of Casey’s broad approach to substantive due process again suggests that Gorsuch shares Scalia and Thomas’s view: that the Constitution protects the liberties enumerated in the Bill of Rights, but not additional ones like a right to abortion.
