Supreme Court nominee Neil Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia, is an illuminating, tedious, and telling work. Illuminating because the rigorous mental work of a highly regarded jurist is something to behold; and tedious due both to that rigor and what Gorsuch chose not to reflect upon—the absence of which makes the whole even more telling than what is evident from the title alone.
The title tells us that Gorsuch:
• is against physician aided dying (because he refers to it as assisted suicide)
• conflates aided dying and euthanasia, which are two separate dying pathways (despite disinguishing between them throughout)
• foresees future legal maneuvers affecting the status of aided dying in America.
It’s important to remember that by 2006 Oregon’s Death With Dignity Act, the nation’s first, was 9 years old and had survived several state and Supreme Court challenges, and the Hemlock Society and Compassion in Dying had just merged to form Compassion & Choices—and that since then our social and political landscape has changed. Yet Gorsuch’s dedication in opposition to aided dying is beyond clear.
Scholarship, let alone legal scholarship, is not my strong suit, and I grew weary of Gorsuch’s, abandoning the book midway through except to read the conclusion and epilog. Below I’ll list the gist of his arguments against aided dying, then I’ll discuss what he chose to omit.
Summarizing: throughout over 200 pages Gorsuch writes that:
• aided dying’s survival of initial judicial challenges were and remain minimal, leaving numerous questions for future courts and lawmakers…
• …including the existence at all of a constitutional right to, or legalization of, (or conversely the criminalization of) aided dying on a national level
• there’s a clear distinction between the settled right to refuse medical treatment and any presumed linkage to a right to aided dying
• neither doctrines of equal treatment, fairness, choice, self-creation, three theories of autonomy (neutralist, harm, perfectionism), or utilitarianism support a right to aided dying (together these eight doctrines comprise the book’s legal evaluation and arguments)
• the less frequently-voiced framing of life as a fundamental human ‘good’ equates to or has created an inviolability-of-life principle that must deny aided dying.
Gorsuch is known as a strict constitutional constructionist—a jurist who looks to the Constitution’s original wording upon which to base judgements. I guess one’s either strict or not, and aided dying opponents routinely cite the dictionary definition of suicide as justification for using it in the narrow framework (both situational and temporal) that aided dying applies to. Unlike the Constitution (unless amended), language and dictionaries do evolve, with new terms added annually. Today the catch-all term ‘suicide’ is being expanded, with considerations like ‘rational’ and ‘irrational.’ This expansion of language—based on human experience—has grown out of a historically new context, albeit already well over half a century old: a systemic, default application of life support machinery in an opaque and controlling medical environment that artificially extends life and creates drawn-out dying, which is almost totally overwhelming in far too many, likely a majority of deaths—that is existentially and physically debilitating for all involved.
Gorsuch ignores all of these aspects, discussing none of them except except for scant mention, in passing, of life support machines and suffering. Notably absent from the book’s index are terms like ‘suffering,’ ‘burden,’ ‘aided dying,’ ‘life support’. I do not know if or how the many legal frames Gorsuch examined the issues through might apply to the default systemic entrapment experienced by millions of dying Americans and millions more surviving family members over generations of time. No mention is made, nor exploration offered, regarding self-directed dying or of dying in peace. I find Gorsuch’s silence on these aspects notably and enormously loud, especially because their presence and contours were clear to any deep thinker during the early years of the 21st century, and especially in light of his examination of ancient Greek and biblical commentary on suicide.
Beyond the book’s purported legal focus, small but periodic cues indicate Gorsuch’s personal animus toward aided dying:
• repeated reference to “injections”, which simply don’t happen in America either as an aided dying prescription nor as a method of wink-nod euthanasia (the latter occurs by increasing the dose in an IV drip)
• repeatedly referring to Oregon’s aided dying law as a ‘scheme,’ ‘experiment,’ and ‘regime’
• pejorative descriptions: “seek out an early death at the hands of a doctor” and Dr. Kevorkian “ran off”.
Interested and concerned people disagree about the potential that Gorsuch’s placement on the Supreme Court, should that occur, might have on aided dying’s continued legality and availability. Some dismiss the idea of further/immediate Supreme Court involvement given their previous rulings, the latter of which clearly mentioned the states as the venue for continued development. Some, myself included, expect right-wing or Christian extremists to push something through the legal system with the intent of bringing a case to the Supreme Court in the hopes that it would be taken up. Given the existence of this book, would Gorsuch recuse himself? Of course, no one knows.
To use legal parlance, regarding aided dying, I perceive Neil Gorsuch as “a clear and present danger” to the nascent end-of-life freedom we are finally obtaining, as limited as it is.