Review: Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2006).
Hear the word of U.S. Supreme Court Associate Justice Anthony M. Kennedy, writing for the majority in Planned Parenthood v. Casey (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Kennedy’s 27 words are more aspirational and memorable than the observation by Associate Justice William O. Douglas in Griswold v. Connecticut (1965) that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Kennedy’s writing in Casey has since been cited in Lawrence v. Texas (2003), which legalized sexual encounters between people of the same sex, and Obergefell v. Hodges (2015), which made same-sex marriage legal nationwide.
At the risk of noting a foregone conclusion: The Future of Assisted Suicide and Euthanasia shows that some judges have applied “the right to define one’s own concept of existence” to state-sanctioned euthanasia.
It is richly rewarding that the judge who may place Justice Kennedy’s principle on a leash is his former clerk, Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit. Like Kennedy, Gorsuch grew up Roman Catholic. Like many others who have met and married Protestants, he became an Episcopalian.
His wife, Louise, was a member of the Church of England when they met in Oxford. Today the Gorsuches and their teenage daughters attend St. John’s Church in Boulder. “We are an inclusive, Christ-centered community reaching out to all who are seeking a deeper spirituality and relationship with God and one another,” the parish’s website says. “We are formed and strengthened through a variety of worship services, traditional music, contemplative prayer, spiritual and social justice formation programs, as well as meaningful service within the parish, the local community and in the larger world.”
The Future of Assisted Suicide and Euthanasia emerged from Gorsuch’s doctoral study at Oxford University. As part of the New Forum Books series edited by Robert P. George, McCormick Professor of Jurisprudence at Princeton, the book is a thorough study of the euthanasia debate. Through ancient history, early Church history, and the history of common law, Gorsuch examines the arguments of both sides in the debate.
But he also dares to write from a pro-life perspective: “I suggest that the principle that all human life is intrinsically valuable may help illuminate and provide guidance in end-of-life disputes beyond assisted suicide and euthanasia, including in the increasingly frequent cases involving the discontinuation of life-sustaining medical care for incompetent persons.”
I will not be surprised to hear that sentence quoted verbatim in the days ahead. Judge Gorsuch’s opponents seek to depict him as unfit for the Supreme Court because of how he understands religious freedom (see Dahlia Lithwick in Slate and Garrett Epps in The Atlantic).
A certain degree of culture-wars kabuki has been inevitable since Judge Robert H. Bork felt the wrath of Sen. Ted Kennedy and others. Senate Republicans’ refusal to hold hearings on Judge Merrick Garland has not lowered the temperature of debate in 2016 and 2017. But the arguments would be fierce today even if Bork and Garland had not suffered those indignities.
Someday, perhaps, it will no longer be considered provocative for a Supreme Court nominee to believe that all human life is intrinsically valuable. It makes at least as much sense as believing that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”