Not since 2006 hasÂ the Supreme Court taken up a case involving âdeath with dignityâ legislation â the handful of state laws that allow people to end their lives with the help of a physician. That year, theÂ court handed a victory to death with dignity advocates, ruling that the attorney general could not bar doctors inÂ Oregon â the first state to pass such a law â from giving terminally ill patients drugs to facilitate suicide.
It was only the third time the court had heard aÂ case challenging such statutes, and the six-member majority tread lightly, recognizing the sensitivity of the issue.
âAmericans are engaged in an earnest and profound debate,â the majority wrote, quoting from a previous opinion, âabout the morality, legality, and practicality of physician-assisted suicide.â
That debate is far from resolved today â and itâs one Neil Gorsuch, President Trumpâs 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,Â who died last year afterÂ three decades on theÂ Supreme Court. Aside fromÂ his bona fides as a lawyer and a jurist â which may all but guarantee a favorable vote in the Senate â 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 âThe Future of Assisted Suicide and Euthanasia.â TheÂ 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 legalÂ 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 beliefÂ in an âinviolabilityâ of human life.
âAll human beings are intrinsically valuable,â he writes in the book, âand the intentional taking of human life by private persons is always wrong.â
We seek to protect and preserve life for lifeâs 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 Alzheimerâs 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.
Gorsuchâs 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 issuesÂ related to assisted suicide and euthanasiaÂ under theÂ Australian legal scholarÂ John Finnis, a staunch opponent ofÂ aid-in-dying measures, as SCOTUSblog has reported.
AtÂ the beginning of his book, Gorsuch thanks Finnis, saying he âprovided thoughtful comments on, and kind support through, draft after draft.â
Over the following 300-some pages, Gorsuch, while against assisted suicide, lays outÂ 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 oneâs own life to present-day arguments in support of aid-in-dying legislation. But heÂ specifically avoids discussing war and capital punishment, saying they âraise unique questions all their own.â
If his writing is any indication, Gorsuch seems to have been alarmed by the sudden proliferation inÂ the mid-1990s and early-2000s of proposals seekingÂ to legalize physician-assisted suicide or euthanasia.Â He also cites the flurry of articles, books and defenses that emerged after the late Dr. Jack Kevorkian made headlines in 1990 for helpingÂ an Alzheimerâs patient kill herself. One particular work that seemed to bother him was âFinal Exit,â a popular book by the right-to-die organization the Hemlock Society thatÂ describes various methods of âself-deliverance,â including suicide by plastic bag and firearm.
Some of Gorsuchâs sharpest criticisms wereÂ 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 favorÂ of permitting physician-assisted suicide, arguing that the government should not interfere with a personâs decision to take his or her own life, especially in cases where the patient is terminally ill.
Gorsuch rejected that view, writing it wouldÂ âtend toward, if not require, the legalization not only of assisted suicide and euthanasia, but of any act of consensual homicide.âÂ Posnerâs position, he writes, would allow âsadomasochist killingsâ and âmass suicide pacts,â as well as duels, illicit drug use, organ sales and theÂ âsale of oneâs own life.â
Gorsuch concludes his book by envisioning a legal system that allows for terminally ill patients toÂ refuse treatments that would extend their lives, while stopping short of permittingÂ 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 andÂ died. She had been diagnosed with aÂ stage 4 malignant brain tumor and wasÂ told she had six months to live.
Multiple states have passed death with dignity laws in recent years â including California and Gorsuchâs own Colorado âÂ and the movementÂ supporting such measures hasÂ gainedÂ steam. Gorsuch, if confirmed,Â may very well have the opportunity to hear legal challenges to those statutes if they arrive atÂ the Supreme Court. Indeed, a passage in his book may haveÂ been a bit prescient.
âFar from definitively resolving the assisted suicide issue,â he wrote, âthe courtâs decisions seem to assure that the debate over assisted suicide and euthanasia is not yet over â and may have only begun.â
More from Morning Mix