Supreme Court Justice Neil Gorsuch recently released a book, A Republic if You Can Keep It, however, earlier in his career before his tenure began as a Supreme Court justice, Gorsuch wrote another book, The Future of Assisted Suicide and Euthanasia.  This book focuses on the philosophical and legal arguments for and against Assisted Suicide and Euthanasia. He cited various empirical studies and data on this issue and also assessed the European view on it. The arguments are well researched and forces one to critically think about the issue and the legal and moral tension it creates. Here, we will reflect briefly on some highlights that raise some good points. We highly recommend the book.

Legal Background

In the legal realm, Gorsuch opens with assessing some Supreme Court case law on the issue and state laws governing assisted suicide and euthanasia. Among the notable cases he highlighted are as follows:

In Cruzan v. Director, Missouri Department of Health, the Supreme Court in a 5-4 decision the affirmed the right of the state of Missouri to require a clear and convincing evidence standard before allowing a patient to refuse lifesaving medical treatment. It focused on the concept of “informed consent” within the tradition of the United States and penal law regarding battery and the common law view on touching others without their consent. When Justice Gorsuch reflects on this case, he notes that one should not construe this decision as an endorsement of the practice of assisted suicide. He states “the common law’s interest in protecting bodily integrity from unwanted physical invasions- the interest the Court in Cruzan sought to protect – simply is not at issue in cases covered by the proffered right to consensual assisted suicide or euthanasia.”  He adds, “the refusal of care simply is not logically equivalent to a right to hasten death.” It lacks a consistent element of intent to “kill or help kill, while seeking out or participating in assisted suicide or euthanasia always does.” [1]

In Washington v. Glucksberg, the Supreme Court found in a unanimous 9-0 decision that state laws banning assisted suicide were not facially unconstitutional. These laws were not a violation of due process and assisted suicide should not be considered as a liberty interest as a matter of Constitutional law. Gorsuch did note, however, that “a majority of the Court reserved judgment on the constitutionality of the practice as applied to terminally ill adults. [2] This is significant because much of the state law that allows room for assisted suicide or death inducing doctor prescribed medications focuses on situations when the patient is terminally ill.

Philosophical Perspectives

Justice Gorsuch addressed some philosophical perspectives on assisted suicide and euthanasia. Among the notable theories he highlighted that have circulated in society include the following:

He cited the utilitarian argument which considers the greatest social benefit with the fewest costs. With this view, theorists propose accessibility to euthanasia and assisted suicide in circumstances open only to the incurably suffering or terminally ill.[3] Other arguments under this umbrella consider reduction of medical costs with less expensive end of life care and less services and resources allotted toward those with no hope of recovery. He then discusses how the Dutch have liberalized laws when considering euthanasia and assisted suicide and have moved away from simply administering to the terminal ill who are suffering in a strict sense. Doctors are entrusted with greater discretion when making decisions and have more freedom with end-of-life prescriptions or meeting the demands of the patient to fulfill their obligations under the law.

Next, he cited the libertarian view, which concludes the legalization of assisted suicide should occur no matter the costs or benefits. He explained that common support for this view rests in the “rationalist” view in that one does not need to be terminal to qualify for assisted suicide or euthanasia, but rather requires rational decision making to choose death over life. There is a major emphasis on the power of individual choice in this matter. People can determine when they are healthy or not and it is not, however, in err for laws to continue being passed that ban assisted suicide for healthy people. Gorsuch strongly pushes back on this view and finds that it is inadequate because it fails to consider the objective physical or psychological circumstances in regards to a given individual and precludes collective consideration on that assessment.[4] It is an unreliable metric to consistently only rely on one’s own personal view of themselves in assessing a “health standard”.

Finally, he offers his own concept on the issue and challenges legalization of euthanasia and assisted suicide. He is not persuaded by the other theories.  His argument focuses on what he terms an “inviolability of life principle”, which offers that “human life is fundamentally and inherently valuable and that the intentional taking of human life by private persons is always wrong.”[5] Life has intrinsic value and he points to examples of actions commonly taken to protect human life such as caring for people with serious illness or pushing for the equality of individual humans because all have innate dignity. There is no intention consistently possessed to consider this care an instrumentality for personal gain, rather it maintains a certain reverence for life itself and recognizes the innate value of life. This view draws challenges as Gorsuch cites opposition that focuses on the grounds of self-defense. What if self-defense requires taking a life, does this not reject life’s innate value? He counters with explaining that intent is a key element. Those in that situation do not possess the intent to kill, rather they are acting to protect themselves from imminent death.

Conclusion

Overall, The Future of Assisted Suicide and Euthanasia was an excellent book, I highly recommend it. It provides an in-depth view on the legal, philosophical and moral tensions regarding euthanasia and assisted suicide. Gorsuch discusses various arguments and their strengths and weaknesses including empirical studies and statistics on the issue. Ultimately, he defends his argument that all human life is intrinsically valuable and the taking of human life by private persons is wrong.

This issue is starting to gain traction in society again with New Jersey passing the Death with Dignity Act which allows for prescriptions to be provided to assist terminally ill patients to end their lives. NJ is among a small minority of states that has passed legislation in support of this practice. There are doctors that are in conflict with the law due to their religious beliefs.[6] This issue will be discussed further in future posts.

[1] Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 84 (2006).

[2] Id. at 216

[3] Id. at 102.

[4] Id. at 156

[5] Id. at 157.

[6] https://www.nj.com/news/2019/08/heres-what-the-nj-supreme-court-ruling-on-the-right-to-die-law-means.html

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 84 (2006).

[2] Id. at 216.

[3] Id. at 102.

[4] Id. at 156

[5] Id. at 157.

[6] https://www.nj.com/news/2019/08/heres-what-the-nj-supreme-court-ruling-on-the-right-to-die-law-means.html