Trump's Supreme Court Pick Could Shape Bioethics for Generations

SCOTUS nominee Neil Gorsuch. IMAGE: Getty Images

Neil Gorsuch, President Trump’s freshly-announced nominee for the US Supreme Court, has spent his career weighing matters of life and death. His views on life—that it is sacred and “intrinsically valuable”—are likely to shape court decisions in areas from abortion to assisted suicide for decades to come.

Gorsuch is a 49-year-old Tenth Circuit Court of Appeals judge with a Harvard law degree and a PhD in legal philosophy from Oxford. He is likely best known for his role in Hobby Lobby vs. Sebelius, a case challenging the Affordable Care Act’s coverage of birth control based on religious objections. In that case, Gorsuch ruled on the side of the company back in 2013, before it eventually wound its way to the Supreme Court, where that view was upheld. The precedent-setting case allowed corporations to decline coverage of contraceptives based on religious views.


But Gorsuch’s views on life and death have not been restricted to his writings from the bench. In 2006, he published The Future of Assisted Suicide and Euthanasia, a philosophical treatise outlining the legal and ethical debate surrounding assisted suicide.

The book has been praised for its measuredness and rigor in assessing end of life issues from a bioethical standpoint, rather than one that was theological or political. And yet, Gorsuch, a Jesuit-educated Episcopalian, makes clear that he firmly opposes assisted suicide and euthanasia.

“All human beings are intrinsically valuable,” he writes in the book, “and the intentional taking of human life by private persons is always wrong.”

“Once we open the door to excusing or justifying the intentional taking of life as ‘necessary,’” he writes, “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.”


His views on the end of life have obvious implications for the beginning of life, though despite assertions that he is a “pro-life pick,” Gorsuch has at no point come out explicitly as an opponent of abortion. Rather, his point of view seems grounded in whether things like abortion and birth control obey the letter of existing laws.

In his book, Gorsuch said Roe v. Wade created a “new right” to abortion access, rather than applying and interpreting the country’s existing laws. During his nomination announcement, he emphasized that he does not believe that this is the purpose of the court.


“In our legal order it is for Congress and not the courts to write new laws,” Gorsuch said. “It is the role of judges to apply, not alter, the work of the people’s representatives.”

But in the book, he also seems to suggest that the 1992 Supreme Court decision in Planned Parenthood v. Casey decision created a more sound legal reasoning for abortion rights. The case reaffirmed Roe v. Wade, finding that “matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” It also created a new standard for vetting restrictions on abortion rights, determining that restrictions were invalid when they resulted in “undue burden.”


“The plurality in Casey expressly sought to provide a firmer basis for the abortion right and to shore up the reasoning behind Roe’s result,” Gorsuch wrote. “In doing so, the Casey plurality purposefully eschewed any effort to examine the history of abortion regulation, stressing instead the importance of ‘reasoned judgment’ in assessing whether to continue recognizing the constitutional right to abortion.”

No matter his views, it’s unlikely that in a challenge to Roe v. Wade he would vote much differently than his would-be predecessor, the conservative Antonin Scalia who desperately desired to overturn Roe v. Wade.


The issues at the root of Gorsuch’s personal moral philosophy are likely to show up in the Supreme Court again. The last time the Supreme Court took up a case involving “death with dignity” legislation was in 2006, and it left the matter far from settled, determining only that an Oregon state death with dignity law was valid. In recent years, multiple states have passed laws legalizing death with dignity—including California and Gorsuch’s home state of Colorado.

His time on the bench is certain to be one in which we see bioethical challenges once never dreamed of. Genetic engineering and other advanced technology make possible challenges to our basic notion of what it means to be human. In his book, Gorsuch notes that intolerable pain is not a good argument in favor of assisted suicide, which risks creating a world in which some lives are less valuable than others. These are the same moral inquiries that surround dystopian concerns over the inequalities that might be created once we’re genetically engineering superhuman and designer babies. How will he apply that thinking to issues of the future?


A line from Gorsuch himself may be the most prescient predictor.

“Far from definitively resolving the assisted suicide issue,” he wrote, “the court’s decisions seem to assure that the debate over assisted suicide and euthanasia is not yet over—and may have only begun.”


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