When President Donald Trump nominated federal appellate Judge Neil Gorsuch to replace the late Antonin Scalia on the U.S. Supreme Court, it was a punch in the gut to the nation’s leading organization promoting physician aid in dying.
The group, Compassion & Choices, wasted no time firing off a salvo.
“Judge Gorsuch would be a dangerous addition to the nation’s highest court,” said Kevin Diaz, the nonpartisan organization’s national director of legal advocacy, whose heart sank when Gorsuch was announced. “We oppose his nomination specifically because his views … are contrary to our goals.”
Aid in Dying Views Detailed in a Book
It’s not simply that Gorsuch is opposed to doctors writing prescriptions for mentally competent, terminally ill adults who want to end their lives, which is now legal in six states: Oregon, Washington, Montana, Vermont, California and Colorado. In 2006, Gorsuch wrote a book, The Future of Assisted Suicide and Euthanasia, detailing the reasons for his opposition. The book is described by its publisher as “the most comprehensive argument against … legalization [of assisted suicide] — ever published.”
One thing Gorsuch makes clear in his book is that “the intentional taking of human life by private persons is always wrong.” That’s just the kind of language Senators will seize upon at his confirmation hearings to try to suss out Gorsuch’s views on abortion and whether the President has nominated someone who could someday be part of a Supreme Court that overturns Roe v. Wade.
With the baby boomer generation, I think we will see more and more people calling for medical aid in dying.
— Kevin Diaz, Compassion & Choices
The issue of physician aid in dying is complicated. Opponents maintain that people with serious illness or injury could be vulnerable to undue influence. Or that depression may cloud one’s judgment.
Disability rights advocates are among them. “It would almost be too easy to make an irrevocable choice,” Marilyn Golden, a senior policy analyst at Disability Rights Education & Defense Fund, told the Atlantic in a 2015 story preceding the California law to allow aid in dying. “It could lead to people giving up on treatment and losing good years of their lives.”
Opposition by Democrats
For Democratic Sen. Ron Wyden of Oregon, the first state that legalized physician aid in dying, Gorsuch’s opposition to aid in dying makes it likely he’ll vote “No” when the Senate takes up the judge’s nomination.
“His opposition to legal death with dignity, as successfully practiced in Oregon, is couched in the sort of jurisprudence that justified the horrific oppression of one group after another in our first two centuries,” Wyden said in a statement immediately after Gorsuch was nominated to the high court. “No Senator who believes that individual rights are reserved to the people, and not the government, can support this nomination.”
At Gorsuch’s confirmation hearings to be a federal judge on the Tenth Circuit in 2006, Sens. Wyden and Patrick Leahy (D-Vt.) submitted written questions to him, including: “Your writings … appear to conclude there is no constitutional right to physician aid in dying. Should a case come before you concerning this issue in any way, would you be able to consider it without bias?”
Gorsuch responded: “If confirmed, my personal views on this — or any — matter would play no role in my decisions as a judge. A judge’s personal policy preferences and politics have no place in the process of deciding cases.”
Too Early to Predict
“It’s hard to separate personal preferences from judicial philosophy,” says Jeffrey Toobin, staff writer for The New Yorker and author of several books on the Supreme Court, including The Nine and The Oath. It’s impossible to say whether a justice’s personal views ever find their way into his or her opinion, Toobin says.
If Gorsuch wins confirmation, he’ll have plenty of company among the justices on the Supreme Court who have written a book on a controversial issue that may come before them. “Frankly, I think that’s a good thing. These people are not robots. Being involved in the current debate of the day should not disqualify you from being a Supreme Court justice,” says Toobin.
Toobin says if Gorsuch is confirmed, which appears likely at this writing, and a case involving physician aid in dying comes before him, “it’s possible he might have to recuse himself if the case is close to what is in his book. But if it’s more generic, I don’t think so.” Like all judges, Supreme Court justices must decide for themselves if they need to recuse themselves from certain cases.
Similarity to Same-Sex Marriage?
Regardless of whether Gorsuch is confirmed and occupies the Scalia chair, physician aid in dying seems to be on a similar trajectory as another social issue that recently scored a breakthrough victory in the Supreme Court: same-sex marriage.
“One of the things that changed the whole same-sex marriage debate was people coming out of the closet and being open about their sexual orientation,” says Diaz.
But unlike other issues, Diaz says, the end-of-life choice movement has been slow to grow. That’s partly because there weren’t many people who opted for physician aid in dying who were willing to advocate for it publicly. “A lot of these people were elderly and didn’t want to take on the burden of advocating for something they’re not likely to benefit from because they won’t live long enough,” notes Diaz.
The Impact of Brittany Maynard
And then came Brittany Maynard, the young California woman with brain cancer who in 2014 announced she would take advantage of Oregon’s death with dignity law. When her video about this went viral, it was something of a turning point for the movement.
You can track the trend in online Medscape polls of 7,500 doctors from more than 25 specialties, which showed 46 percent support for physician-assisted dying policies in 2010, 54 percent in 2014 and 57 percent last fall.
The mayor of Washington, D.C. signed a death with dignity bill in December, but Congress is trying to block it from becoming law. Similar bills have been introduced in 18 other states.
Proponents Forecast a Shift
Ultimately, Diaz believes, the country’s demographics will inevitably raise the profile of the matter.
“We have an aging population, a lot of people who will be facing these kind of issues,” he says. “The more people talk about death, make their wishes known, the more we’re going to see a shift in what health care providers offer and states allow. With the baby boomer generation, I think we will see more and more people calling for medical aid in dying.”
As he made the rounds of Capitol Hill Wednesday, informally meeting Senators, Gorsuch demonstrated some independence. He told Connecticut Democratic Sen. Richard Blumenthal that Trump’s recent criticism of the judiciary in its rulings on refugees was “disheartening” and “demoralizing.”
The question for proponents of physician aid in dying is whether the man who wrote the book against end-of-life choice was sending out a clue when he was introduced last week at the White House. “A judge who likes every outcome he reaches,” said Gorsuch, “is very likely a bad judge stretching for results he prefers rather than those the law demands.”