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03/24/2017

Neil Gorsuch, Aid in Dying, and Roe v. Wade

In the absence of any “paper trail” that would give clues to Supreme Court nominee Neil Gorsuch’s views on abortion, many commentators have turned to his book, The Future of Assisted Suicide and Euthanasia, based on his doctoral dissertation at Oxford, where he worked with natural law theorist John Finnis.  Ronald M. Green notes with alarm that Gorsuch relies on an inviolability-of-life principle that would likely lead him to vote to overturn Roe v. Wade.  Furthermore, Green writes that Gorsuch’s conservative preference for allowing states to make their own decisions, would lead to a return to the pre-Roe reality in which women would have to travel long distances for abortions in those states that allowed it.  (https://ronaldmgreen.com/2017/02/17/how-will-neil-gorsuch-vote-on-roe-v-wade/)

However, there are more dire possibilities to consider. In a long and fascinating essay in Vox (March 20, 2017), J. Paul Kelleher argues that Gorsuch is not an originalist in the Scalia mold, but actually a natural law adherent like his mentor Finnis.  Natural law theorists believe that there is an over-arching moral law that judges can and must rely on when existing laws are unclear, or manifestly unjust.  The recognition of human life as a “fundamental good” that can never be intentionally harmed, is an example of such a moral law, and one that Gorsuch relies on in his condemnation of assisted suicide.

It’s important to see that Gorsuch is not merely agreeing with the current legal status of assisted suicide in our country.   In Washington v. Glucksberg, in 1997, the Court declined to follow the logic of the “privacy” cases stretching from contraception through abortion and find a constitutional right to assistance in ending one’s life.  Glucksberg leaves the country, with respect to assisted suicide, in the same position in which we would left with respect to abortion, if Roe were overturned: at the mercy of the legislative wisdom of the individual states.   Gorsuch goes further in arguing that the equal protection clause of the 14th amendment forbids treating the lives of terminally ill people differently from those of the healthy, by allowing the “killing” of the first but not the second (a view often argued by philosopher Felicia Nimüe Ackerman).  In other words, Gorsuch would presumably view favorably an appeal to the Court to strike down existing “death with dignity” laws in Oregon and elsewhere.

As Corey Brettschneider writes in the New York Times (March 21, 2017), all of our abortion jurisprudence rests on the assumption that embryos and fetuses are not “constitutional persons” under the 14th amendment.   Anti-abortion activists have made occasional gestures toward a constitutional amendment declaring embryos to be constitutional persons from the moment of conception, but constitutional amendments are very hard to pass, as proponents of the Equal Rights Amendment will recall.  Relying on natural law theory, John Finnis has written that fetuses deserve to be considered constitutional persons.  Thus, an equal protection argument claiming that the 14th amendment requires embryos and fetuses to be treated the same as born children, might acquire some traction with Gorsuch on the Court.   The result would be much worse for abortion rights than simply overturning Roe; it would criminalize abortion across the country.

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