Op Eds (Published & Unpublished)

How Will Neil Gorsuch Vote on Roe v. Wade?

o  I SUBMITTED THE FOLLOWING POST, BASED ON A CLOSE READING OF NEIL GORSUCH’S BOOK,  THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA, TO THE NY TIMES, WASHINGTON POST, BOSTON GLOBE, and LA TIMES. NONE THOUGHT IT IMPORTANT ENOUGH TO PUBLISH. I DISAGREE. SO HERE IT IS ON MY OWN SITE. IF YOU APPRECIATE THIS, SEND IT TO OTHERS.

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How will Neil M. Gorsuch, Donald Trump’s nominee for the Supreme Court, rule on abortion? Will Gorsuch sustain the many impediments to abortion recently introduced in state legislatures across the country? Will he vote to overturn Roe v. Wade’s establishment of a woman’s basic liberty- and privacy-right to abortion?

Answering these questions is difficult because Gorsuch has almost no record of ruling in abortion-related cases.

In his service on the 10th U.S. Circuit Court of Appeals, Gorsuch ruled against the contraceptive mandate in the Affordable Care Act, but this 2013 decision at best only reinforces the impression that he is willing to privilege the claims of people with dissenting religious objections to reproductive health care over the needs of the women served by that care. In 2015, in the wake of the release of secretly recorded videos of Planned Parenthood workers discussing the provision of fetal tissue, Utah’s governor stripped the organization of funding. When the 10th Circuit Court struck the governor’s ruling down, Gorsuch wrote a dissent defending the governor’s action. But this dissent was based on narrow factual matters and did not address the issue of abortion itself.

This leaves us with only one major source for understanding Gorsuch’s likely positions on abortion and Roe v. Wade: his 2006 book The Future of Assisted Suicide and Euthanasia. Published by Princeton Press in a series edited by Robert P. George, one of the nation’s leading conservative intellectuals and a widely published opponent of a right to abortion, Gorsuch’s book barely mentions abortion. But there are significant strands in the argument that do not bode well for the preservation of Roe.

Chief among these is the principle of the “inviolability-of-life,” which Gorsuch believes rules out both physician-assisted suicide and euthanasia. This principle, views human life as intrinsically valuable no matter what its quality or duration, and it stresses agents’ intent in acting. While it is permissible to discontinue aggressive medical care where the intent is to relieve suffering and respect a patient’s clearly expressed treatment wishes, Gorsuch argues that this principle forbids heeding a patient’s request for assistance in dying, whether by prescribing lethal medications or administering them, because the intent in such cases, by both patient and physician, is to cause death.

Bioethicists like me will quibble with many of Gorsuch’s aruments. One problem is whether it is possible or even desirable to interpret intent as decisively as Gorsuch wants to do. Does a doctor really kill a patient when she prescribes a lethal medication, or is her intent to help the patient to achieve his desired end of life? A deeper problem is whether the writing of a prescription is itself a death-dealing act or whether it is not more properly described as “getting out of the way” and removing state-imposed restrictions that limit someone’s access to needed drugs.

But these questions are beside the point. What is troubling in Gorsuch’s argument is his strong reliance on the “inviolability-of-life” principle because he never states how far this principle extends. Does it comprise the early embryo or first trimester fetus? Does it protect the third trimester fetus that has been diagnosed in utero with Trisomy-13? This is a condition largely incompatible with survival. Only a tenth of Trisomy 13 babies live beyond their first year. But if life is inviolable no matter what its quality or duration, will parents who receive this diagnosis of their fetus be prohibited from terminating a pregnancy? Only Mr. Gorsuch knows his answers to these questions, but the broad argument in his book is not encouraging for supporters of a woman’s or a couple’s right to make these reproductive decisions on their own.

From the perspective of Roe v. Wade, there is another, less obvious theme in The Future of Assisted Suicide and Euthanasia that is troubling for those who support abortion rights. Again and again, Gorsuch signals his preference for leaving complex issues like physician-assisted suicide to “legislative experimentation” at the state level rather than resorting to the kind of broad national mandate epitomized by Roe v. Wade. Although this is a popular position among abortion opponents, its effect would be to return us to the pre-Roe reality where women had to travel hundreds or thousands of miles to the few states (New York, Washington, Hawaii and Alaska) that had repealed their prohibitory laws. In effect, in a post-Roe world, across broad swaths of the country women would be denied access to abortion.

Neil Gorsuch’s rulings and writings provide no definitive answers to the questions with which we started. He is the perfect stealth candidate for the Supreme Court. But if his appointment is approved, the hints in these writings portend the effective end of the right to abortion in this country.

 

 

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