Not since 2006 has the Supreme Court taken up a case involving “death with dignity” legislation — the handful of state laws that allow people to end their lives with the help of a physician. That year, the court handed a victory to death with dignity advocates, ruling that the attorney general could not bar doctors in Oregon — the first state to pass such a law — from giving terminally ill patients drugs to facilitate suicide.
It was only the third time the court had heard a case challenging such statutes, and the six-member majority tread lightly, recognizing the sensitivity of the issue.
“Americans are engaged in an earnest and profound debate,” the majority wrote, quoting from a previous opinion, “about the morality, legality, and practicality of physician-assisted suicide.”
That debate is far from resolved today — and it’s one Neil Gorsuch, President Trump’s nominee to the high court, will surely be eager to weigh in on, should he win confirmation.
Gorsuch, a 49-year-old federal appeals court judge from Colorado, was tapped by Trump on Tuesday to replace Justice Antonin Scalia, who died last year after three decades on the Supreme Court. Aside from his bona fides as a lawyer and a jurist — which may all but guarantee a favorable vote in the Senate — Gorsuch has cultivated something of an expertise in assisted suicide and euthanasia in his legal career.
In 2006, the year he was nominated to the federal bench, he released a heavily researched book on the subject titled “The Future of Assisted Suicide and Euthanasia.” The front cover looks almost like a Tom Clancy novel, with purple all-caps block text set against a black background. But the book itself is a deep, highly cerebral overview of the ethical and legal debate surrounding the practices.
In it, Gorsuch reveals that he firmly opposes assisted suicide and euthanasia, and argues against death with dignity laws, which currently exist in just five states. His reasons, he writes, are rooted in his belief in an “inviolability” of human life.
“All human beings are intrinsically valuable,” he writes in the book, “and the intentional taking of human life by private persons is always wrong.”
We seek to protect and preserve life for life’s own sake in everything from our most fundamental laws of homicide to our road traffic regulations to our largest governmental programs for health and social security. We have all witnessed, as well, family, friends, or medical workers who have chosen to provide years of loving care to persons who may suffer from Alzheimer’s or other debilitating illnesses precisely because they are human persons, not because doing so instrumentally advances some other hidden objective. This is not to say that all persons would always make a similar choice, but the fact that some people have made such a choice is some evidence that life itself is a basic good.
Gorsuch’s interest in assisted suicide seems to have bloomed in the early 2000s, when he was studying for his doctorate. After earning a law degree from Harvard and clerking on the U.S. Supreme Court, Gorsuch attended Oxford University on a prestigious Marshall Scholarship. There, he studied legal and moral issues related to assisted suicide and euthanasia under the Australian legal scholar John Finnis, a staunch opponent of aid-in-dying measures, as SCOTUSblog has reported.
At the beginning of his book, Gorsuch thanks Finnis, saying he “provided thoughtful comments on, and kind support through, draft after draft.”
Over the following 300-some pages, Gorsuch, while against assisted suicide, lays out an exhaustive but evenhanded case, treating respectfully the positions of those who disagree with him. He touches on everything from Greek and Roman laws on taking one’s own life to present-day arguments in support of aid-in-dying legislation. But he specifically avoids discussing war and capital punishment, saying they “raise unique questions all their own.”
If his writing is any indication, Gorsuch seems to have been alarmed by the sudden proliferation in the mid-1990s and early-2000s of proposals seeking to legalize physician-assisted suicide or euthanasia. He also cites the flurry of articles, books and defenses that emerged after the late Dr. Jack Kevorkian made headlines in 1990 for helping an Alzheimer’s patient kill herself. One particular work that seemed to bother him was “Final Exit,” a popular book by the right-to-die organization the Hemlock Society that describes various methods of “self-deliverance,” including suicide by plastic bag and firearm.
Some of Gorsuch’s sharpest criticisms were directed at one of his fellow jurists, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Posner has written in favor of permitting physician-assisted suicide, arguing that the government should not interfere with a person’s decision to take his or her own life, especially in cases where the patient is terminally ill.
Gorsuch rejected that view, writing it would “tend toward, if not require, the legalization not only of assisted suicide and euthanasia, but of any act of consensual homicide.” Posner’s position, he writes, would allow “sadomasochist killings” and “mass suicide pacts,” as well as duels, illicit drug use, organ sales and the “sale of one’s own life.”
Gorsuch concludes his book by envisioning a legal system that allows for terminally ill patients to refuse treatments that would extend their lives, while stopping short of permitting intentional killing.
In the time since Gorsuch released his book, several terminally ill patients seeking assisted suicides have drawn national attention. In one recent high profile case, Brittany Maynard, a 29-year-old from Oregon, in 2014 took lethal drugs prescribed by her physician and died. She had been diagnosed with a stage 4 malignant brain tumor and was told she had six months to live.
Multiple states have passed death with dignity laws in recent years — including California and Gorsuch’s own Colorado — and the movement supporting such measures has gained steam. Gorsuch, if confirmed, may very well have the opportunity to hear legal challenges to those statutes if they arrive at the Supreme Court. Indeed, a passage in his book may have been a bit prescient.
“Far from definitively resolving the assisted suicide issue,” he wrote, “the court’s decisions seem to assure that the debate over assisted suicide and euthanasia is not yet over — and may have only begun.”
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