By Dan Barker
Freedom From Religion Foundation
Gorsuch has never decided a case dealing with abortion and has apparently not publicly articulated his views on the topic. However, Trump vowed to his supporters that he would appoint Supreme Court justices who will overturn Roe v. Wade. Since Gorsuch is a conservative originalist (like his predecessor Antonin Scalia) who has decried judicial activism and has never spoken favorably about abortion, we can assume that he is no friend to women’s rights.
Although Gorsuch converted to Episcopalianism, he was raised Catholic, and attended Christ the King Roman Catholic school and then Georgetown Preparatory School, a Jesuit high school. His mother, Anne Gorsuch Burford, whom he has always defended, has been described as “fervently anti-abortion.”
Regarding his views on contraceptive rights, we do know for a fact that as a justice on the 10th U.S. Circuit Court of Appeals, he sided with Hobby Lobby’s argument that a corporation can have “religious rights” that trump the right of women employees to choose their own form of contraception. The U.S. Supreme Court went on to affirm the decision in its disastrous 2014 ruling. It is clear that Gorsuch will embrace the Religious Right’s campaign to redefine religious liberty as the right to impose religious dogma on others.
We can also try to discern his views on abortion and human life by analyzing his 2006 book, The Future of Assisted Suicide and Euthanasia (Princeton University Press). The tome is an expansion of his doctoral dissertation at Oxford. In this book, Gorsuch makes arguments that sound like they were cut-and-pasted from a “pro-life” tract. He opposes assisted suicide based on the “basic good” of the “inviolability of life.” That kind of talk dovetails with the anti-abortionists.
“His adviser was John Finnis, a hugely influential conservative Catholic legal philosopher who is a prominent defender of a ‘natural law’ approach to jurisprudence,” writes reviewer Dylan Matthews. “Gorsuch isn’t a Catholic . . . but his book makes clear he shares Finnis’ view that the law and morality are not easily extricable.”
Although it is clear that the overwhelming opposition to assisted suicide and abortion comes from the Religious Right, Gorsuch goes out of his way to insist that he is making a secular case. He proposes “an argument for retaining existing law 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” assuring us that this argument, “based on secular moral theory, is consistent with the common law and long-standing medical ethics.”
Notice the phrase “private persons.” Gorsuch thinks the state, not a private person, is justified in taking human life for capital punishment and during wartime. His views in this book establish Gorsuch’s as firmly pro-death penalty.
As a conservative, Gorsuch assigns high respect to historical and legal precedent: “One of the central purposes of this book,” he writes, “is to identify and explore the strengths and weaknesses of the legal and moral arguments deployed by those who seek to overthrow existing laws against those practices.” [Emphasis mine]
Insisting that “all human life is intrinsically valuable,” Gorsuch attempts to weaken (or eliminate) the distinctions between assisted suicide and euthanasia, between euthanasia and eugenics, and between eugenics and homicide. “Is there really any meaningful moral distinction that can be drawn between assisted suicide and euthanasia?” he asks. (Some of us would say yes, because assisted suicide always involves a decision by the patient.) His argument appears to be “assisted suicide = euthanasia = eugenics = murder.”
While arguing that this is entirely secular, Gorsuch uses Christian history as a precedent: “Though the bible nowhere explicitly forbids suicide, from its earliest days Christianity taught against the practice.” He quotes Thomas Aquinas: “[Suicide] wrongs God, whose gift life is and who alone has power over life and death.” He claims that Christianity had an “influence on the common law’s initial view of suicide” (although he later admits that this is “at best a matter for speculation”). After surveying historical precedent, Gorsuch concludes: “There is no meaningful historical antecedent for a right to assistance in suicide and euthanasia.”
Most of Gorsuch’s book is a careful and comprehensive legal treatise, acknowledging that there are differences of opinion (in society as well as the courts) and good reasons for overturning precedent as society changes (for example, in Loving v. Virginia, which overturned anti-miscegenation law). But he links eugenics to the modern movement to legalize abortion and to the decline of religion: “Skepticism of traditional authority, the rise of the legal right to privacy in the form of birth control and abortion rulings, and the feminist movement all led to renewed debate over the appropriate balance between collective and individual rights. . . . At the same time, the influence of religion began to decline in much of the Western world. Euthanasia advocates sought to take advantage of this changing cultural climate.”
Gorsuch agrees that the modern eugenics movement (since World War II) is less extreme, focusing on physician-assisted suicide rather than euthanasia, but he warns that “strains from the early euthanasia movement have never completely disappeared,” suggesting a hidden agenda. “The right to die sometimes appears to morph into a duty to do so.” Beware the slippery slope.
The centerpiece of Gorsuch’s book is Chapter 9, “An Argument against Legalization.” It is here that he makes his inviolability-of-life case. “If human life qualifies as a basic good it follows that we can and should refrain from actions intended to do it harm.”
Gorsuch makes a number of comments that resonate with anti-abortion arguments. “Even if a certain degree of arbitrariness or uncertainty is tolerable and perhaps even inherent in many policy decisions,” he writes, “it is simply not acceptable when we are deciding who is and is not treated as fully human.”
He elaborates elsewhere: “Once we open the door to excusing or justifying the intentional taking of life as ‘necessary,’ we introduce the real possibility that the lives of some persons (very possibly the weakest and most vulnerable among us) may be deemed less ‘valuable,’ and receive less protection from the law, than others,” he writes.
That phrase “weakest and most vulnerable” sounds like anti-abortion talk. It would certainly apply to an embryo or fetus if you think the fetus is a person. (And most people who grant personhood to fetal life do so for the religious reason that they believe “ensoulment” takes place as conception.)
Gorsuch doesn’t appear to explicitly address the concept of personhood, but he does point out: “In Roe, the Court explained that, had it found the fetus to be a ‘person’ for purposes of the Fourteenth Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother’s liberty interests over the child’s life.” (Notice that he uses the weighted term, “mother,” instead of “pregnant woman.” Pregnant women should only be referred to as “mothers” if they already have children.)
If we connect these “right to life” comments with Gorsuch’s belief that faith in God is also a “basic good,” this sends a powerful message to Catholic and evangelical anti-abortionists. “While life is certainly one basic human good,” he writes, “it is far from the only one, and it is impossible to say that it should always be preferred to other basic, innate goods that are themselves entirely independent and sufficient reasons for action—like the freedom and equality of one’s countrymen, the liberty of others, or one’s faith in God.”
In case you think that sentiment might allow for the life and privacy of a pregnant woman to also be a “basic good,” remember that he is only talking here about the right of a competent adult to withhold medical treatment.
Proposing a “middle way,” Gorsuch might appear to have some moderate impulses: “The inviolability-of-life principle allows us to chart what is, in a very real sense, a ‘middle way’ between the extremes of treating life as a mere instrumental good and treating it as something that we must preserve at any cost—affording, in the process, significant liberty to patient and doctor alike to discontinue or apply palliative treatment even in circumstances where death is foreseen as a certainty.” However, notice that this “middle way” does not allow for assisted suicide, only for the right to refuse medical care. This principle would not seem to apply to the life of a pregnant woman, if the fetus is viewed as a person.
The “right to privacy” is used very narrowly in this book, dealing only with the patient’s decision to discontinue life support, not with assisted suicide or euthanasia, and certainly not with the privacy of a pregnant woman.
He acknowledges privacy, mentioning that the New Jersey Supreme Court held that “competent patients have a right, grounded in both the common law of battery and the constitutional right to privacy, to order a physician to leave them alone.” This right, the court said, is not absolute, but must be tempered to prevent suicide and preserve “the sanctity of all life.” This is obviously not the same privacy referred to in Roe.
A revelatory comment is where Gorsuch makes no distinction between comatose and semi-comatose patients, stating: “The same fundamental liberties are at stake: the right to life, the right to privacy, and the right to be treated as equal to all other human beings.” This is like anti-abortionists who believe an embryo or fetus and a pregnant woman should be treated equally.
What I found most striking about Gorsuch’s book is the way he talks about the patients who would request assistance in dying. He reports numerous cases of Lou Gehrig’s and other tragic illnesses with a kind of clinical detachment, not really acknowledging or sympathizing with the horrible plight of the suffering individual. (See, for example, the sad story of Read Schuster.) Gorsuch spends a whole chapter on “inviolability of life,” but only mentions suffering in passing. He does acknowledge, “Learning to accept the inevitable end and to choose to die in a graceful way consistent with our own values and commitments is in no way inconsistent with the inviolability-of-life principle.” Yet this does not extend to the compassionate option of asking for help. You have to die “gracefully” all by yourself.
Needless to say, with several states adopting death-with-dignity measures, it’s inevitable Gorsuch, if confirmed, will be asked to vote on challenges to such legislation. It’s clear he would rule against these laws. His confirmation as a judge would give him a vote to retard the adoption of rational and humane regulations honoring the choice of gravely or terminally ill patients.
At the end of the book, Gorsuch leaves no doubt: “Recognizing human life as intrinsically, not instrumentally, valuable . . . would rule out assisted suicide and euthanasia, though it would not lead to, and should be confused with, a vitalist’s view that measures must always be taken to keep human beings alive; to the contrary, it would leave significant room for individual autonomy, restricting state interference only to cases where an intent to help kill is present.”
If we replace the words “assisted suicide and euthanasia” with “abortion,” and “human beings” with “pregnant women,” this becomes a chilling statement.