neil gorsuch doctoral thesis

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The right to receive assistance in suicide and euthanasia, with particular reference to the law of the United States

Whether to legalize assisted suicide and euthanasia is among the most hotly debated legal and public policy issues today in the United States, as it is in many countries. In this Thesis, I first (in Chapters I and II) isolate the critical questions in this debate, the answers to which will likely determine the fate of assisted suicide and euthanasia in America's courts and legislatures: Is there historical precedent for allowing the practices? Do fairness concerns dictate that we ...

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Gorsuch, Abortion and the Concept of Personhood

By Corey Brettschneider

• March 21, 2017

Judge Neil M. Gorsuch has written little about abortion, and we do not know whether he would vote to overturn Roe v. Wade, the 1973 Supreme Court decision that established abortion as a fundamental right. But he has expressed a position on two related subjects, assisted suicide and euthanasia. In his Oxford dissertation and a later book, he defended the inviolability of human life. He rejected the role of states in granting the terminally ill a right to die and offered a legal framework that could be applied to abortion.

Judge Gorsuch, who is President Trump’s nominee to fill the Supreme Court seat vacated by Justice Antonin Scalia’s death last year, argued in both his dissertation and his book, “The Future of Assisted Suicide and Euthanasia,” that the Constitution requires banning doctor-assisted suicide and euthanasia nationwide, with a few possible exceptions. He asserted that allowing these practices in any state would violate the 14th Amendment’s guarantee of equal protection. Such a law would treat “the lives of different persons quite differently” by prohibiting the murder of the healthy while allowing the killing of the sick, he wrote.

Judge Gorsuch has clearly thought long and hard about matters of life and death. Would he extrapolate to abortion his views on assisted suicide or euthanasia? It’s not clear. In his dissertation, his limited remarks on Roe are skeptical; he calls its logic a “hodgepodge of doctrines and theories” and refers to abortion as a “nontextual right,” meaning it has no basis in the text of the Constitution. However, as Amy Howe of Scotusblog noted recently , he “has not ruled on any cases directly involving abortion during his 10 years” as an appeals court judge.

But he has had much to say in his writings about human personhood and the inviolability of life, views that are worth exploring. What gives individuals such an inviolable right, he has reasoned, is a status that legal scholars call “constitutional personhood,” defined by the 14th Amendment. Under that amendment, a state is prohibited from denying any constitutional person “life, liberty or property, without due process of law,” and cannot “deny any person within its jurisdiction the equal protection of the laws.”

The Roe decision expressly excluded human fetuses from that definition. As the court put it in 1973 , “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.” But if the Supreme Court were ever to recognize fetuses as constitutional persons, however unlikely that might seem now, then under Judge Gorsuch’s framework, the 14th Amendment’s equal protection clause would require that they be entitled to the same legal protection as constitutional persons. Laws that prohibit murder thus would have to be extended to them.

Judge Gorsuch has said as much himself. In his book, he wrote, “Abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if , a fetus is considered a human life.” He noted that had the court “found the fetus to be a ‘person’ for purposes of the 14th Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother’s liberty interests over the child’s life.”

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Neil Gorsuch

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I n his Senate confirmation hearings, Neil Gorsuch gave little away. His extensive but ultimately unrevealing answers to senators’ questions did not show the workings of his heart—what various Democrats described as the object of their inquiries. Practiced, garrulous, tedious, combative, and smugly civil, the judge repeated stock answers that deflected from his constitutional philosophy and his more controversial court decisions, such as those that favored corporations or the religious liberty of non-church entities . “I am a judge, I am my own man,” Gorsuch repeated, enforcing Republicans’ collective and transparent theme: When one dons the robe, their personal opinions, religious or otherwise, are irrelevant.

Despite claims of objectivity—“My job is to apply the laws you write,” he told lawmakers—the type of justice that Gorsuch will be is not a complete mystery. His philosophy is apparent in the cases he has decided. And, on matters of life and death, his philosophy is also evident in his book , The Future of Assisted Suicide and Euthanasia , published by Princeton University Press in 2006.

Life issues, especially abortion, likely pushed many religious conservatives to vote for Trump, because they wanted to secure an anti-abortion justice to fill the seat vacated after Antonin Scalia’s death. Senators repeatedly questioned Gorsuch about his views on abortion during his hearings—he revealed little—and some Democrats cited his rulings affecting women’s health as reasons to block his nomination. Senate Democrats ultimately did block Gorsuch, but Republicans were able to carry forward his confirmation anyway, changing the rules of the Senate in a historic vote to do so. As the dust from the contentious confirmation settles, it’s worth noting that Gorsuch’s nomination, in some ways, owes its provenance to the anti-abortion movement, making his own bioethical views all the more worth revisiting.

The Future of Assisted Suicide and Euthanasia is a resounding rebuke of the legalization of aid in dying (the term preferred by proponents, just coming into use at the time Gorsuch was doing his research). The book is not specifically about abortion, and the term is not even listed in the book’s index. Still, social conservatives have long defined their “pro-life” ethic as a “seamless garment,” covering a person’s life from birth through death. In this “consistent life” philosophy, abortion and stem cell research, as well as euthanasia and assisted suicide, are of a whole cloth—one is only defensible so much as the others are. “Once we open the door to excusing or justifying the intentional taking of life as ‘necessary,’ 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,” Gorsuch writes in the book, using language long employed in the anti-abortion wars (and frequently quoted by the media since his nomination).

Gorsuch has never ruled on an abortion case. In the book, he dispassionately references the arguments in Roe v. Wade that legalized abortion. Yet, Gorsuch uses “consistent life” language throughout the book—Chapter 10 outlines a “consistent end of life ethic”—in a way that has reassured anti-abortion groups . “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong,” Gorsuch writes early in the book. (The caveat, “by private persons,” leaves room for the death penalty, a “consistent life ethic” frequently left out by conservatives.)

The book began as Gorsuch’s doctoral dissertation while he was a student at Oxford University. (The text has recently come under fire for allegedly lifting passages from other sources without proper citation.) John Finnis, a conservative Catholic professor and well known natural law theorist , was Gorsuch’s dissertation advisor. Natural law grew out of the teachings of the thirteenth-century Catholic priest and Dominican friar Thomas Aquinas, who wrote that it meant “nothing else than the rational creature’s participation in the eternal law,” the law of God. Gorsuch grew up Catholic and attended a Jesuit high school, though he now attends an Episcopal church. His book, now more than a decade old, bears many of Finnis’s natural law influences.

Natural law’s definitions are contested today, but it has been famously claimed by other leaders in the judiciary and legislature, notably Justice Clarence Thomas . Natural law has become controversial, as proponents—including Finnis—have employed it to argue against same-sex relationships and abortion.

The first half of Gorsuch’s The Future of Assisted Suicide and Euthanasia is more small “c” catholic than large “C,” however. He eschews explicitly Catholic or religious arguments in favor of jurisprudence. He outlines four arguments that are derived from judicial decisions in two prominent 1997 cases: Washington v. Glucksberg and Quill v. Vacco , both of which dealt with the constitutionality of aid in dying. In the first case, Harold Glucksberg and three other doctors challenged Washington state’s 1997 Natural Death Act in order to show that prescribing a lethal dose of medication to a terminal patient was constitutional according to the 14th Amendment. The case won in district court but was ultimately denied by the Supreme Court.

In the second case, Timothy Quill, also a physician, challenged New York’s ban against aid in dying. Quill’s efforts regarding aid in dying were well known ; in 1991 he had written a landmark article for the New England Journal of Medicine in which he described prescribing barbiturates to a patient who was dying of leukemia. Although the prescription was ostensibly for Trumbull’s inability to sleep, her desire to hasten her death was understood by Quill. He was never charged for a crime.

Like Glucksberg , Quill also failed in the courts. The United States Supreme Court, in a 9-0 decision, ruled that aid in dying was not guaranteed under the Constitution. Although unanimous, the decision resulted in six different judicial opinions, leaving open various interpretations for future discussion.

The first question that Gorsuch examines in The Future of Assisted Suicide and Euthanasia deals with judges’ concerns that historical precedent prevents aid in dying from being constitutional. Those seeking aid in dying were reacting to new medical technologies—advanced cancer therapies, new techniques of “life” or physiological support—that prolonged death (and patients’ pain) and had not been considered before by law. Jill Lepore writes at The New Yorker that Gorsuch “has his doubts about the history test,” which he outlines in the book’s “The Debate Over History” chapter. This stance is a slight diversion from Scalia, who Lepore writes “spent much of his career arguing for the importance of history in the interpretation of the law.”

The second question under Gorsuch’s consideration regards fairness and equal protection. How can aid in dying be provided to only some, say the terminally ill, and not others, like the mentally ill? Gorsuch discusses the challenges of determining patient consent when a patient is mentally incompetent or too young to make decisions for themselves. He draws a bright distinction between refusing medical treatment—which he argues should be legal—and seeking aid in dying. He argues that the intent of the prescribing doctor determines the legality of an action.

The third question Gorsuch asks is if the “due process clause of the Fourteenth Amendment creates a constitutional guarantee of ‘self-sovereignty,’ embracing all ‘basic and intimate exercises of personal autonomy.’” Whether these “substantive rights”—the issues of “marriage, procreation, contraception, family relationships, childrearing, and education”—included aid in dying was disputed by the courts.

Yet, questions of autonomy and substantive rights are central to Planned Parenthood v. Casey , which reaffirmed the right to abortion, Gorsuch notes. He refrains from criticizing the Casey decision; he simply does not believe that the decision can fully be used to uphold legal aid in dying. He makes this argument, seeming to dismiss the portion of the Casey decision that would, according to many, include aid in dying:

These 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. At the heart of the liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

To elucidate autonomy, Gorsuch points us to Cruzan v. Director, Missouri Department of Health , cited in various rulings of both Glucksberg and Quill , which determined that patients had the right to end or remove medical treatment because of the “common-law rule that forced medication was a battery,” as Chief Justice William Rehnquist wrote. Does that right extend to aid in dying, Gorsuch asks, or is aid in dying part of one’s “lifestyle choices,” a phrase long used to shame and disparage legal abortion. Of course, in jurisprudence, abortion and aid in dying legislation have always been intertwined: The question of when life begins—and what its value is—is innate to the question of when life ends. As Richard Doerflinger, the Associate Director of Pro-Life Activities at the United States Conference of Catholic Bishops, once told me , one’s life “isn’t one’s own.”

Gorsuch’s final question in the first half of the book examines whether “society as a whole would be improved or worsened” by legalization of assisted suicide, citing fears that the mentally ill, the disabled, or elders would be coerced into ending their lives prematurely. At the time that Gorsuch’s book was published, these fears were already being refuted by the data coming out of Oregon, where aid in dying had been legal for nearly a decade . Critics had claimed that the state’s law would lead to elder abuse, coercion of patients, or a “slippery slope” where patients who were not terminally ill or mentally capable of making their own medical decisions would be harmed. In 2006, the year that Gorsuch’s book was released, sixty-five people received lethal medication via the law; forty-six used it to end their lives. There were no reports of abuse.

Today, nearly 20 years after Oregon’s law went into effect, such fears remain unfounded . In 2015, 218 patients in Oregon received a prescription to aid in dying, but only 132 used it. According to the Oregon health department, most of those patients were enrolled in hospice (where they had access to pain relief), and they died at home—the place where a majority of Americans in surveys say they wish to die.

Washington state passed the Death with Dignity Act, which was modeled on Oregon’s law, in 2008. Four more states have since followed: Montana (2009); Vermont (2013); California and Colorado (2016). At any given time, at least a dozen states have active bills to legalize aid in dying. Gorsuch’s predictions were in part true: The Oregon “experiment” set the stage for other states to adopt aid in dying laws, but his recommendations for the judiciary on how to counter the movement’s progress—protecting a traditionally conservative definition of “the “inviolabillty,” or sanctity, of life—have often proven unsuccessful or unheeded.

The language of much of Gorsuch’s book is dated and jarring to those who have worked for end-of-life rights for decades. Gorsuch consistently uses “killing” or “committing suicide” for aid in dying. In reality, the underlying disease is the killer. As desperate terminal patients have long countered, they are not suicidal and their killer is their illness—not a prescribing doctor or a lethal medication. Death, regardless of the means, is guaranteed. This fact makes their decision not about how they die (although medication is the least traumatic means possible) or when they die (each person is free, according to the laws, to decide the time of ingestion), but about the most important, most present question of their every minute: how much pain they can bear.

While researching my own book on end-of-life care in the U.S., I found it impossible to deny the physical and emotional pain of dying patients who sought a way to live—they desperately wanted to live—their last weeks and days without pain. Robert Baxter, who brought the case that made aid in dying legal in Montana, was not suicidal. He no more wanted to kill himself than you or me. But he knew that his death was inevitable. In his affidavit to the court, Baxter wrote that he could only avoid impossible suffering by being fully sedated. “My family would be forced to stand a horrible vigil while my unconscious body was maintained in this condition, wasting away … while they waited for me to die.”

The Montana State Supreme Court ultimately ruled that Baxter had a right to receive lethal medication, but it was too late. He had already died. Perhaps it is a lack of knowledge about how these patients suffer that allows legal theorists like Gorsuch to claim lofty ideals about the quality and inviolability of life. Otherwise, the denial of the inherent protections and compassion of the law, indeed, of the ability of aid in dying laws to provide compassion in the face of this suffering, seems coldly cruel and the most damning aspect of this book.

Ann Neumann is author of The Good Death: An Exploration of Dying in America and a visiting scholar at the Center for Religion and Media at New York University where she writes the column, “The Patient Body,” for The Revealer . She has written for The New York Times , The Baffler , Harvard Divinity Bulletin , and Guernica magazine, where she is a contributing editor.

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Gorsuch made an important distinction when asked about assisted suicide

By Matt Hadro

Washington D.C., Mar 22, 2017 / 15:11 pm

Supreme Court nominee Neil Gorsuch made a crucial ethical distinction in his response to questions about doctor-prescribed suicide during his confirmation hearing on Wednesday, said one ethicist.

When asked what his views were on end-of-life care in the case of a terminal patient enduring unbearable pain, Gorsuch replied that "anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death. Not intentionally, but knowingly. I drew the line between intent and knowingly."

This is an important distinction, said Edward Furton Ph.D., director of publications and an ethicist at the National Catholic Bioethics Center. He told CNA that the situation presents the case of "double-effect," where proper steps taken to alleviate a patient's pain may have the side effect of causing their death, but are permissible when certain conditions are met.

"You've got a good intention, the action you're doing is good – in this case, it's alleviating the pain with appropriate amounts of medication," he explained, emphasizing that the dosage of pain medication may never be lethal and should not render the patient unconscious except when "absolutely necessary."

"You've got a side effect, which is not intended, but is foreseen. It is going to happen, but you don't want it to happen, you're doing your action for another reason. And there is really no other route to alleviate the pain. So this is perfectly appropriate, it makes good sense," Furton said.

Gorsuch, a judge on the Tenth U.S. Circuit Court of Appeals, faced his third day of questioning before the Senate Judiciary Committee on Wednesday as he is considered for confirmation to replace the late Justice Antonin Scalia on the Supreme Court.

He wrote a book in 2006 on "The Future of Assisted Suicide and Euthanasia." Gorsuch explored various arguments made in favor of doctor-prescribed suicide and euthanasia before offering his own observations and opinions.

The book "was my doctoral dissertation, essentially," he told the Senate Judiciary Committee on Wednesday. It was written "in my capacity as a commentator" and not as a judge, he clarified. The book was published the same year he was nominated and confirmed to the Tenth U.S. Circuit Court of Appeals.

He argued in the book that "human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong." Regarding doctor-prescribed suicide, he upheld laws prohibiting it, basing his argument upon "secular moral theory."

Senate advances bills to protect privacy and safety of children online

Asked by Sen. John Kennedy (R-La.) to briefly discuss his book, Gorsuch suggested that doctor-prescribed suicide could pose a significant threat "to the least amongst us – the vulnerable, the elderly, the disabled."

It does this by becoming a cheap end-of-life option offered to vulnerable people, he said. "I do know that when you have a more expensive option and a cheaper option, those who can't afford the more expensive option tend to get thrust into the cheaper option."

"It's a long book. It's complicated. And I do not profess to have the right, final, or complete answer," he admitted. "I hoped, at most, to contribute to a discussion on an unanswered social question where all people – and I do think all people – have a good faith interest in trying to reach some consensus socially on it."

Currently, doctor-prescribed suicide is legal in six states and in the District of Columbia, with some 25 states to consider legalizing it this year.

Sen. Dianne Feinstein (D-Calif.) pressed Gorsuch on the matter on Wednesday, citing California's End of Life Option Act that legalized the procedure in the state.

"I, in my life, have seen people die horrible deaths – family, of cancer – when there was no hope. And my father, begging me, 'stop this Diane, I'm dying'," she explained. "And my father was a professor of surgery."

"And the suffering becomes so pronounced – I just went through this with a close friend – that this is real. And it's very hard," she continued, asking him what he thought of California's law.

(Story continues below)

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Gorsuch, speaking in his personal capacity, said that for some terminal patients, "at some point, you want to be left alone. Enough with the poking and the prodding. 'I want to go home and die in my own bed in the arms of my family'."

"And the Supreme Court recognized in Cruzan" – a 1990 decision on an end-of-life case – "that that's a right in common law, to be free from assault and battery, effectively. And assumed that there was a Constitutional dimension to that. I agree."

Gorsuch added that the matter of a terminal, suffering patient foregoing treatment was a personal one for him.  

"Your father, we've all been through it with family. My heart goes out to you. It does. And I've been there with my dad. And others," he told Feinstein.

Speaking as an ethicist, Furton clarified that in end-of-life cases, pain management may certainly be used but should never be an overdose and should not render the patient unconscious except in extraordinary circumstances.

Pain medication should be "measured, so that it matches the pain that the patient is experiencing," he said.

"You can't just give them a massive dose, or something like that," he said, as "it would bring about their death in a way that was not measured and not connected to a proper intention which is to alleviate the pain."

And medication should not induce unconsciousness, except in extraordinary cases, he insisted.

"Another important element is that the loss of consciousness in a person who is dying is very significant, and shouldn't happen unless it's absolutely necessary, because we should meet our Maker alert and in a prayerful way," he added.

Furton praised Gorsuch's knowledge and treatment of the matter as someone who "has obviously thought about these issues very carefully."

"So I think we should be happy that he has such a strong sense of where to draw the line in a case such as this, where you've got a person with intractable pain and needs to have it remedied," Furton said.

"He understands that that is not intentionally killing somebody. It's not euthanasia, it's not physician-assisted suicide. A lot of people don't understand the difference between those two, so it's good that he does because he's obviously going to be a man of considerable power and importance in the area of law."

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I read Supreme Court nominee Neil Gorsuch's book. It's very revealing.

by Dylan Matthews

Neil Gorsuch has not publicly stated whether or not he thinks Roe v. Wade was correctly decided. But if you read his one published book, The Future of Assisted Suicide and Euthanasia , his position on right-to-life issues becomes exceptionally clear, and it’s not particularly difficult to infer what they imply for his thinking on abortion.

Gorsuch’s core argument in the book is that the US should “retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” The “private persons” bit there is telling — Gorsuch elaborates, “I do not seek to address publicly authorized forms of killing like capital punishment and war.”

Nor does his argument explicitly address abortion. But many of the book’s arguments apply equally well to both euthanasia and abortion — the latter of which could be considered the intentional taking of human life by private persons by a judge inclined to enact Gorsuch’s principle.

And make no mistake: Gorsuch sees this argument as having legal implications, beyond merely moral ones. At the end of the book, he advances an argument that laws allowing assisted suicide could be unconstitutional on equal protection grounds, and argues that the Equal Protection Clause could be interpreted as including his “inviolability-of-life principle.” If applied to abortion, that argument could easily be used to contend that not only is abortion not constitutionally protected, but that the Constitution actually requires laws banning abortion.

To be clear, Gorsuch never explicitly states that he thinks this argument should be used that way. But for reproductive rights supporters, the argument should raise many red flags nonetheless.

Gorsuch thinks the “inviolability of life” could be in the Constitution

Most of the book focuses not on the law per se, but on moral arguments. It grew out of a doctoral dissertation Gorsuch wrote at Oxford, where he studied as a Marshall scholar. His adviser was John Finnis, a hugely influential conservative Catholic legal philosopher who is a prominent defender of a “natural law” approach to jurisprudence. Finnis’s work attempts to provide a rigorous, secular philosophical justification for the approach to ethics and law that follows from Catholic social teaching. Gorsuch isn’t a Catholic (he belongs to a quite liberal Episcopal congregation ), but his book makes clear he shares Finnis’s view that the law and morality are not easily extricable.

At the end of the book, after many chapters arguing for his view that human life can never be taken by private actors and arguing against assisted-suicide supporters like Ronald Dworkin and Peter Singer, Gorsuch provides an intriguing argument for why this moral stance of his could have legal significance.

“The inviolability-of-life principle is strongly associated with the concept of human equality; the two are mutually reinforcing ideas,” he writes. That invites the possibility of a challenge to laws allowing assisted suicide on the grounds that they discriminate against the disabled, or the terminally ill, by making their lives subject to termination by medical professionals acting in “good faith” without those professional facing any legal punishment.

Gorsuch strongly implies he thinks a challenge on these lines could, and should, succeed. He contends that when a law involves a marginalized group like disabled people, that demands more stringent review, perhaps including review under intermediate or strict scrutiny, legal standards that require laws serve a compelling government interest if they’re to be found constitutional.

This argument jibes strongly with disability rights activists ’ arguments against assisted suicide , which focus on the potential for abuse, the potential for family members and doctors to pressure disabled people to kill themselves contrary to their own wishes, and for cases of depression to lead to euthanasia because the depressed party happens to also have a physical disability. Most disability rights activists view assisted-suicide laws as dangerous invitations to discrimination against disabled people.

But one line in the book indicates the equal protection argument could extend further, and apply not only to euthanasia but also to abortion. “Any line one might draw among human beings for purposes of determining who must live and who may die ultimately seems to devolve into an arbitrary exercise of picking out which particular instrumental capacities one especially likes,” Gorsuch writes.

The problem here is that most lines one could devise beyond which abortion is banned and before which it is permitted are based, in some sense, on a fetus’s capacities: its potential to survive outside the womb, its ability to feel pain or formulate desires, etc. Birth is an exception; if you believe in an autonomy-based right of women to have abortions in all circumstances, then you need not worry about the capacities of the fetus. But the Supreme Court has made distinctions in the past based on the trimester of pregnancy, or whether the fetus is “viable” outside the mother. Gorsuch suggests that capacity-based distinctions like this might be illegitimate.

That could have huge implications for his abortion jurisprudence. For one thing, if you take this line of argumentation all the way, then you could argue that state laws discriminating between fetuses on the basis of their capacities violate equal protection. That would imply that not only is there not a right to abortion, but states do not even have the right to allow it; fetuses have a constitutional right to live.

To be clear, Gorsuch has said nothing like this. His specific views on abortion remain unarticulated. But his line of reasoning opens the door to this conclusion in a provocative way.

Gorsuch presents euthanasia advocates as heirs to a toxic history

One of the most revealing sections of book as to Gorsuch’s overall attitude is chapter three, a historical overview of Western thought on suicide and euthanasia. The point is to provide some clue as to whether a right to die is deeply rooted in tradition and American history — a matter with serious legal significance.

Under a doctrine known as “substantive due process,” the Supreme Court has over the past century interpreted the 14th Amendment to not just guarantee that legal proceedings be carried out fairly but also protect certain fundamental freedoms from excessive regulation by the state. That’s the basis upon which the Court has determined that the Constitution protects the right to contraception , to abortion , to consensual sex , and to same-sex marriage .

Determining just what freedoms are protected is a matter of strong methodological dispute, but a widely held position among many jurists is that to be protected by substantive due process, a liberty or freedom has to be deeply rooted in tradition or American history. That can lead to somewhat awkward places. In 1972, the Court struck down a Massachusetts law banning the distribution of contraceptives to unmarried people, despite the fact that in many states bans like that were themselves a longstanding tradition, which would seem to run against the idea that the right to contraceptives outside of marriage had a strong historical basis.

Gorsuch himself seems to be very skeptical of using history to defend substantive due process claims, noting that in the contraceptive case, the “result can be defended fully, without contortions over historical ‘levels’ and even without reference to due process doctrine, as an equal protection decision simply and quite straightforwardly requiring the same access to contraceptives for married and unmarried persons alike.” This, tellingly, gives the same result but doesn’t provide much basis for thinking that both married and unmarried people have a right to contraception.

With that context laid out, Gorsuch proceeds to sketch out the attitudes toward suicide displayed by everyone from Plato to Aristotle to Roman law to St. Augustine to St. Thomas Aquinas to English common law and the practices of the American colonies. But he really gets going when it comes to the embrace of euthanasia by the late 19th/early 20th century eugenics movement, which viewed the practice as a way to, often involuntarily, prevent the proliferation of “feeble-minded” people in society.

Gorsuch goes to great lengths to demonstrate just how mainstream the view that doctors should kill disabled people was:

Clarence Darrow of Scopes Monkey fame proclaimed, “Chloroform unfit children. Show them the same mercy that is shown beasts that are no longer fit to live.” Novelist Sherwood Anderson and physician Abraham Wolbarst, two future members of the Euthanasia Society of America, openly argued that society had a duty to kill those with defects because they unnecessarily drained community resources. Madison Grant, a New York attorney and Yale Law graduate who also served as a trustee of the American Museum of Natural History and cofounded the American Eugenics Society, proclaimed that “[t]he laws of nature require the obliteration of the unfit and [a] human is valuable only when it is of use to the community or race.”… In 1939 Ann Mitchell, an ESA cofounder, welcomed the advent of World War II as a “biological house cleaning.” She counseled “euthanasia as a war measure, including euthanasia for the insane, feeble-minded monstrosities.”

Of course, euthanasia did become a war measure, specifically for Nazi Germany , which launched the T4 program the same month it invaded Poland; about 200,000 disabled people were killed in various Nazi euthanasia efforts. And the effort was substantially inspired by American euthanasia advocates. Gorsuch notes that Adolf Hitler himself wrote to Madison Grant, describing Grant’s pro-eugenics book Passing of the Great Race as “his Bible,” and stated that he had “studied with interest the laws of several American states concerning prevention of reproduction by people whose progeny would, in all probability, be of no value or be injurious to the racial stock.”

Understandably, association with Nazi atrocities destroyed the reputation of eugenics, and by extension euthanasia, in the United States. But within a few decades, arguments for euthanasia began gaining currency as a way to enhance the autonomy and ease the suffering of people at the end of their lives, quite apart from eugenic considerations. Most contemporary advocates explicitly and strenuously reject that legacy and argue that legalizing euthanasia and assisted suicide has nothing whatsoever to do with involuntary killings of the disabled.

While Gorsuch certainly doesn’t equate today’s euthanasia advocates with eugenicists, he does argue quite persistently that the differences are often slight, and that contemporary bioethicists supporting euthanasia from the 1960s and onward have been far too comfortable with killing people who do not themselves agree to be killed:

Joseph Fletcher, father of situational ethics, an Episcopal priest, and author of Morals and Medicine (1979), spent much of the 1960s, 1970s, and 1980s arguing for the movement’s “original task as the [Euthanasia Society of America] perceived it.” Fletcher called upon the euthanasia movement not only to press for assisted suicide and voluntary euthanasia, but also to advocate euthanasia for “helpless newborns or minors still too young to make any input into decisions about when to stop life-prolonging treatment.” Lie earlier ESA members, Olive Ruth Russell, psychologist and author of Freedom to Die: Moral and Legal Aspects of Euthanasia (1975), sought to extend legal euthanasia to infants with birth defects. Hearkening back to the Malthusian concerns of the social Darwinists, Russell viewed euthanasia as a means of combating the “surging rise in the number of physically and mentally crippled children.”

From here, Gorsuch glides seamlessly into citing passages from prominent ethicists like Dworkin or Singer that seem to endorse involuntary euthanasia. Dworkin, for instance, wrote that respecting individual autonomy means honoring a woman’s request to be killed should Alzheimer’s-induced dementia set in, even if once that happens the woman no longer wants to die. Singer, perhaps the most notorious of any euthanasia proponent, has argued for the justifiability of early infanticide, particularly in the case of disabled children, drawing the fierce opposition of disability rights advocates .

“Many of the policies they proffer would embrace not just a right to die, but a duty of certain persons to do so — and do so in some cases regardless of whether they consent,“ Gorsuch writes. He argues that it’s “hard to disagree” with the conclusion of the historian Ian Dowbiggin, who wrote that “today’s defenders of the right to die often echo the justifications of euthanasia first uttered” by eugenicists.

This obviously gives one a very strong sense of how Gorsuch would rule on end-of-life cases brought before the Court. But it also suggests something about his attitude toward abortion. Some early abortion advocates in the US were — as pro-life activists today are extremely eager to point out — also proponents of eugenics, with Planned Parenthood founder Margaret Sanger being perhaps the most famous example. By tying euthanasia to eugenics, Gorsuch is implicitly tying abortion to eugenics as well.

And within the world of contemporary moral philosophy, the defense of abortion is inextricably linked with the defense of assisted suicide and euthanasia. Dworkin laid out a comprehensive theory covering both in Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom , arguing that only a particular view about how to respect the sanctity of human life can justify bans on the practices, and that it is illegitimate for the state to privilege one such view over others.

Singer’s defense of abortion and his defense of euthanasia of infants derive from identical premises: that neither fetuses nor infants are beings capable of wanting to continue living, so they have no preferences in that regard that other people are obligated to honor. Judith Jarvis Thomson, whose “A Defense of Abortion” is perhaps the single most influential philosophical article on the subject, has defended assisted suicide on similar, personal autonomy–based grounds.

Given that he paints arguments like these as heirs to the ideas that literally produced Nazi war crimes , it’s not hard to guess what Gorsuch thinks about their application to abortion.

Gorsuch is sympathetic to a limited view of due process

The most explicit the book gets on the topic of abortion is its analysis of Planned Parenthood v. Casey , the landmark 1992 case in which the Supreme Court upheld Roe v. Wade but allowed certain restrictions on abortion nonetheless. Casey is relevant to the debate over euthanasia because of its comments on how the Court should determine which rights are guaranteed by substantive due process and which are not.

While Gorsuch never plainly states his own views on substantive due process, he lays out those of Justices Hugo Black, Antonin Scalia, and Clarence Thomas at some length, and very sympathetically. Black is identified with the idea that the due process clause of the 14th amendment applied the Bill of Rights to the states. Previously, the first 10 amendments were thought only to apply to the federal government. Congress could make no law abridging the freedom of speech, but state legislatures could. Black thought that by guaranteeing all people due process of the law, the 14th Amendment “incorporated” the Bill of Rights and applied it to states.

But he also thought that substantive due process could go no further than that. It could not contain a right to privacy, to sexual freedom, to abortion or marriage or (certainly) assisted suicide. While Scalia accepted a broader view of substantive due process early in his tenure, he later flipped and declared that he could no longer “accept the proposition that [due process] is the secret repository of all sorts of other unenumerated, substantive rights.”

Gorsuch’s sympathetic recounting of this argument is not a conclusive indication of his own views. For one thing, Gorsuch notes that even if you take this view, you could think Roe v. Wade is correctly decided on other (for instance, equal protection ) grounds. But it is revealing, and suggests he’s at least sympathetic with the side of the Court that has voted to overturn Roe and other substantive due process–based rulings. It also suggests a limit to his conservatism. In the early 20th century, substantive due process was used to argue for “freedom of contract,” which led the Supreme Court in cases like Lochner v. New York to strike down limits on working hours, minimum wage laws, and other economic regulations. This view has been revived in conservative legal circles in recent years , but Gorsuch’s take on substantive due process suggests he doesn’t think the Constitution mandates libertarian economic policy.

Gorsuch’s comments on Casey bolsters this interpretation of his views. In the Casey opinion, Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter argued, “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.” If that test, meant to provide a more stable basis than reliance on history, is binding precedent, it could form the basis of a right to assisted suicide, which reflects a particular view on the part of the dying person of the meaning of their life.

But Gorsuch argues that it cannot be binding. For one thing, it’s not necessary for the result of Casey , which can be justified on the grounds of stare decisis — the Court was merely upholding its prior ruling in Roe , out of respect to settled law. For another, Gorsuch argues the test might “prove too much”: “If the Constitution protects as fundamental liberty interests any ‘intimate’ or ‘personal’ decisions, the Court arguably would have to support future autonomy-based constitutional challenges to laws banning any private consensual act of significance to the participants in defining their ‘own concept of existence.’” That opens the door to legalizing drugs, polygamy, dueling, prostitution, and various other activities. A lot of people might be willing to bite that bullet, but Gorsuch appears not to.

That dismissal of Casey’ s broad approach to substantive due process again suggests that Gorsuch shares Scalia and Thomas’s view: that the Constitution protects the liberties enumerated in the Bill of Rights, but not additional ones like a right to abortion.

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Neil Gorsuch: An Eloquent Intellectual

The president’s nominee for the Supreme Court is a credit to his profession.

Within hours of the nomination of Neil Gorsuch to the Supreme Court of the United States, the battle lines had already formed. Leftwing groups were reflexively opposed—as they would oppose any Republican nominee. Right-leaning groups rallied in support. It became almost impossible to separate truth from falsehood, analysis from spin.

I served on the Tenth Circuit Court of Appeals with Judge Gorsuch for over three years, before moving to Stanford University to teach constitutional law. He and I sat together on almost 50 cases of every description. We did not always agree. But Neil Gorsuch is a man of intelligence, independence, and integrity. In my opinion, he is a superb choice to replace Justice Antonin Scalia on the Court. In normal times, he would be swiftly and easily confirmed. Alas, these are not normal times.

Qualifications and Qualities of Mind

Gorsuch has impeccable and impressive qualifications for the High Court: a law degree from Harvard, a doctorate in legal philosophy from Oxford, Supreme Court clerkships with moderate Justices Byron White and Anthony Kennedy, private practice with one of the most respected law firms in Washington, public service at the Department of Justice, and now ten years of outstanding work on the Tenth Circuit. When nominated to that court in 2006, he won high praise from both sides of the aisle and was confirmed unanimously by the Senate.

More important than his qualifications are his qualities of mind. He is rigorously intelligent, fair-minded, and one of the finest writers in the entire judiciary. Like Justice Scalia, he tries to minimize the role that judges’ own views play in the interpretation of the law. Perhaps unlike Justice Scalia, a pugnacious lover of intellectual battle whose intellectual inclination was to clarify and sharpen differences, Gorsuch looks for common ground, even with judges of a generally opposing position. We see both of these qualities in this witty passage from Gorsuch’s dissenting opinion last year in A.M. v. Holmes :

Often enough the law can be “a ass—a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838)—and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives.  Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent.

I asked my research assistant to pull every case in the last five years where Judge Gorsuch sat with both a Republican-appointed and a Democratic-appointed judge and the panel split as to the outcome. The results were striking. In almost a third of the cases, Judge Gorsuch voted with his presumably more liberal Democratic colleagues rather than the presumably more conservative Republicans. That is the mark of an independent, non-partisan jurist.

This is not just my opinion. In the days since the nomination, several liberal professors have studied his record and come to a similar conclusion.

Principles of Interpretation

Judge Gorsuch is a longstanding proponent of the view that the Constitution must be interpreted according to its text as it was understood by those with authority to enact it. In his words: “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” ( Cordova v. City of Albuquerque (2016)). That sometimes leads to conservative results, but not always. As one liberal law professor wrote: “He is way too conservative for my taste, but his decisions are largely principled and fair from his originalist’s view of constitutional interpretation. . . . That approach can result in decisions that don’t reliably fall into any one place on the liberal-to-conservative spectrum.”

If the Constitution, fairly interpreted, does not speak to an issue, Judge Gorsuch leaves it to the political process. As he wrote in tribute to his mentor Justice Byron White, we should have “confidence in the people’s elected representatives, rather than the unelected judiciary, to experiment and solve society’s problems, so long as the procedures used were fair and the opportunity to participate was open to all.”

For example (and like Justice Scalia), this approach often leads him to rule in favor of criminal defendants based on the original meaning of constitutional trial guarantees or a narrow textual reading of criminal statutes. One example is United States v. Carloss (2016). In that case, he dissented from a decision holding that police may disregard a property owner’s “No Trespassing” signs. Gorsuch responded to the government’s concern that a contrary rulling would make the “job of ferreting out crime . . . marginally more difficult” with the pungent riposte: “[Obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs  and benefits but to apply the Amendment according to its terms and in light of its historical meaning.” In many more cases, Judge Gorsuch has voted to affirm convictions. His overall record in criminal cases is neither pro-prosecution or pro-defendant, but simply obedient to the law.

There is no reason to think that Judge Gorsuch regards the death penalty as unconstitutional. Perhaps that is because it is not.  

Judge Gorsuch’s approach has led him to defend the constitutional autonomy of the states – whether exercised by a conservative Republican governor in Planned Parenthood v. Herbert (2016) or a liberal Democratic governor in Kerr v. Hickenlooper (2014). In light of the recent revival of interest in local autonomy in progressive circles, these power-devolving doctrines may win newfound respect. The genius of our system is to empower conservative states like Texas or West Virginia to resist progressive presidencies, and liberal states like California or Washington to resist conservative ones.

Judge Gorsuch’s opinion for the court in Energy & Environment Legal Inst. v. Epel (2016) has received little attention from his progressive critics. In it, Judge Gorsuch rejected a highly plausible challenge by a corporation to Colorado’s renewable energy rules, based on his reading of the historical meaning of the Commerce Clause. The case was a three-fer: it was against a corporation, in favor of environmental laws, and based on originalist interpretation. No wonder progressives prefer to ignore it!

The same principles probably make Judge Gorsuch skeptical of the Supreme Court’s jurisprudence on same-sex marriage and abortion. But whatever his views may be, they will not affect the balance of votes on those issues. He is replacing Justice Scalia, after all. I personally believe that the issue of same-sex marriage will not be reopened, and that some 45 years of precedent make radical change on abortion unlikely, no matter who is on the Court or what they think of the legal reasoning in Roe v. Wade .

Most importantly, Judge Gorsuch has never had a case on abortion rights, same-sex marriage, gun rights, or affirmative action. Any worries or hopes on these issues are purely a matter of speculation. Judge Gorsuch did, however, dissent from a Tenth Circuit decision forbidding the governor of Utah from cutting the funding from Planned Parenthood. The legal issue was the imputation of an unconstitutional motive to the governor without actual evidence of it, which could arise in any number of political contexts. Nothing in his opinion suggests that the abortion context affected his analysis. Gorsuch also dissented from the conviction of a defendant charged with knowing possession of a firearm, on the ground that the government did not prove an element of the crime. This decision has, absurdly, been treated as evidence of pro-gun views. Judge Gorsuch’s dissenting opinion begins this way:

People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.

The language is passionate—but about innocence, not gun rights.

Freedoms of Speech and Religion

Among Judge Gorsuch’s most impassioned commitments is to the freedoms of speech and religion. Probably his best-known cases are Hobby Lobby v. Sibelius (2014), which upheld the right under the Religious Freedom Restoration Act of a closely-held family corporation not to be compelled to pay for insurance coverage of what they sincerely believe to be abortion-inducing drugs, and Little Sisters of the Poor v. Burwell , which applied the same principles to a Catholic religious order. I suspect most Americans agree that Catholic nuns should not be forced to pay for things their religion condemns. In my opinion, a government attentive to civil liberties would never have tried. Hobby Lobby was affirmed by the Supreme Court, and Little Sisters of the Poor was remanded in the expectation that the government could accommodate the Sisters’ religious beliefs without sacrificing any compelling governmental interests.

Judge Gorsuch’s commitment to freedom of religion extends to all faith and all kinds of people: to prisoners, to Muslims, to Native Americans, as well as to Christians. In Yellowbear v. Lampert (2014), for example, he wrote an opinion supporting the claim of a Native American prisoner for access to a sweat lodge for religious ceremonials. In Abdulhaseeb v. Calbone (2010), he supported the claim of a Muslim prisoner to religiously appropriate food. On the other hand, he recognizes that not all claims of religious freedom are legally warranted. He voted to reject a claim by members of a so-called “Church of Cognizance” to use marijuana as a sacrament, and claims by atheist and secular groups to tear down public monuments with religious elements. In the latter, Judge Gorsuch’s indignant common sense comes through:

It is undisputed that the state actors here did not act with any religious purpose; there is no suggestion in this case that Utah's monuments establish a religion or coerce anyone to participate in any religious exercise; and the court does not even render a judgment that it thinks Utah's memorials actually endorse religion. . . . Thus it is that the court strikes down Utah's policy only because it is able to imagine a hypothetical "reasonable observer" who could think Utah means to endorse religion—even when it doesn't.

Two freedom of speech cases warrant mention. In Riddle v. Hickenlooper (2014), he concurred in a decision protecting the right of minor-party candidates and their supporters to make campaign contributions equal to those allowed the Republicans and Democrats. And in Van Deelen v. Johnson (2007), he voted to extend the protection of the Petition Clause of the First Amendment to statements made in a petition, even if those statements were on a private matter and were in fact baseless. Judge Gorsuch explained, “[T]he    constitutionally numerated right of a private citizen  to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private.”      

Executive Power

Tenth Circuit judges do not have many opportunities to rule on the scope of executive power, but arguably this will be the most prominent Supreme Court issue of the coming decade. Not only will there be high-profile contests involving the ever-controversial President Donald Trump, but there will be even more cases involving the ever-increasing authority of bureaucratic agencies to govern our lives without congressional say-so or real democratic accountability.

As it happens, Neil Gorsuch has addressed this question, albeit obliquely. An alien, Hugo Rosario Gutierrez-Brizuela, applied to the immigration authorities for a change in immigration status. The executive branch, however, had changed its mind about how to handle this class of aliens, and applied its new-found ideas retroactively to Mr. Gutierrez-Brizeula. The court rejected the government’s position for technical reasons. Judge Gorsuch filed a separate concurring opinion. Rather than characterize it, I will quote a passage from the opinion. I believe it tells us all we need to know about what kind of Justice my former colleague will be:

[T]he founders considered the separation of powers a vital guard against governmental encroachment on the people's liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment — and raising along the way, too, grave due process (fair notice) and equal protection problems. Conversely, what would happen if politically unresponsive and life-tenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.

In times like these, we need judges who are neither toadies nor resisters. We need judges who take their bearings from the Constitution, and not from party loyalties. In Neil Gorsuch, we have such a judge.

Neil Gorsuch: The Man For The Court , by Richard A. Epstein

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The Hastings Center

Bioethics Forum Essay

Neil gorsuch, aid in dying, and roe v. wade.

In the absence of any paper trail that would give clues to Supreme Court nominee Neil Gorsuch’s views on abortion, many commentators have turned to his book, The Future of Assisted Suicide and Euthanasia , based on his doctoral dissertation at Oxford, where he worked with natural law theorist John Finnis.  Ronald M. Green notes with alarm that Gorsuch relies on an inviolability-of-life principle that would likely lead him to vote to overturn Roe v. Wade .  Furthermore, Green writes that Gorsuch’s conservative preference for allowing states to make their own decisions would lead to a return to the pre- Roe reality in which women would have to travel long distances for abortions in those states that allowed it.

However, there are more dire possibilities to consider. In a long and fascinating essay in Vox, J. Paul Kelleher argues that Gorsuch is not an originalist in the Scalia mold, but actually a natural law adherent like his mentor Finnis. Natural law theorists believe that there is an overarching moral law that judges can and must rely on when existing laws are unclear, or manifestly unjust. The recognition of human life as a “fundamental good” that can never be intentionally harmed, is an example of such a moral law, and one that Gorsuch relies on in his condemnation of assisted suicide.

It’s important to see that Gorsuch is not merely agreeing with the current legal status of assisted suicide in our country. In Washington v. Glucksberg , in 1997, the Supreme Court declined to follow the logic of the “privacy” cases stretching from contraception through abortion and find a constitutional right to assistance in ending one’s life.  Glucksberg leaves the country, with respect to assisted suicide, in the same position in which we would be left with respect to abortion if Roe were overturned: at the mercy of the legislative wisdom of the individual states. Gorsuch goes further in arguing that the equal protection clause of the 14 th Amendment forbids treating the lives of terminally ill people differently from those of the healthy, by allowing the “killing” of the first but not the second (a view often argued by philosopher Felicia Nimüe Ackerman).  In other words, Gorsuch would presumably view favorably an appeal to the Court to strike down existing “death with dignity” laws in Oregon and elsewhere.

As Corey Brettschneider writes in the New York Times , all of our abortion jurisprudence rests on the assumption that embryos and fetuses are not “constitutional persons” under the 14 th Amendment.   Anti-abortion activists have made occasional gestures toward a constitutional amendment, declaring embryos to be constitutional persons from the moment of conception. But constitutional amendments are very hard to pass, as proponents of the Equal Rights Amendment will recall.  Relying on natural law theory, John Finnis has written that fetuses deserve to be considered constitutional persons.  Thus, an equal protection argument claiming that the 14 th Amendment requires embryos and fetuses to be treated the same as born children might acquire some traction with Gorsuch on the Court. The result would be much worse for abortion rights than simply overturning Roe ; it would criminalize abortion across the country.

Dena S. Davis, JD, PhD, Hastings Center Fellow, is the Endowed Presidential Chair in Health and a professor of bioethics and religion studies at Lehigh University.  A version of this essay originally appeared on Bioethics and Other Stuff .

Hastings Bioethics Forum essays are the opinions of the authors, not of The Hastings Center.

All is not well where assisted suicide is legal. There is documented abuse see Thomas Middleton Fed case where he was killed via the OR policy for his assets. A public policy failure. I was my wife’s 24/7 caregiver during her last 18 months of declining autonomy. Pitfalls in assisted suicide laws need attention. We already have the right to refuse treatment. Many who believe in the concept under the choice banner have second-thoughts org she n they read the language of the actual bill and realize our choice is Ignored and certainly not assured. This is not about people who are dying anyway. Amending Colorado’s Prop 106 is sorely needed (and OR,WA,CA). The initiative a monopoly and profit center was bought for $8,000,000 of deception. Even as they proclaimed that the poison must be self administered they did not provide for an ordinary witness. The difference is that without a witness it allows forced euthanasia but with a witness they would up hold individual choice.

Amendments would include requiring a witness to the self administration, restore the illegality of falsifying the death certificate require the posting of the poison applied in the medical record for the sake of good stewardship for future studies, register organ/tissue trafficking, reveal commissions and memorials paid to the corporate facilitators and keep all records for transparent public safety policy. These Oregon model bills do not assure our choice and ignore our choice by empowering predatory corporations over us. Bradley Williams President MTaas org

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Neil Gorsuch

For supreme court justices, faith in law.

Alumni Focus

Judicial Temperament

Neil m. gorsuch ’91 sworn in as u.s. supreme court justice.

April 10, 2017

Neil M. Gorsuch, a 1991 graduate of Harvard Law School, was sworn in today as the 113th justice of the U.S. Supreme Court.

• Supreme Court

Neil Gorsuch’s Dissertation Opposes Same-Sex Marriage

Brettschneider is a professor of political science at Brown University

I f Judge Neil Gorsuch is confirmed as the next Supreme Court justice, he would play a decisive role in the future of same-sex marriage in the United States. The Court held in its 2015 Obergefell decision that there is a nationwide right of same-sex couples to marry. But no Supreme Court decision is written in stone. Gorsuch’s statements on the issue in his 2004 Oxford University dissertation for his Doctorate in Philosophy reveal that he thought it obvious that the United States Constitution did not protect a right to same-sex marriage. If he still holds this view, he could join forces with other justices to reverse the Court’s protection of this right.

In order to understand why Gorsuch’s statements are potentially problematic for the future of same-sex marriage, we first have to understand the connection between the Constitution’s protection of that right and the legal doctrine that paved the way for it—the idea that the Constitution protects individual choice in matters of intimacy for gay and straight people alike. Gorsuch is critical of this legal doctrine, sometimes referred to as the right to privacy or autonomy.

The right to make choices in intimate matters is based in Griswold v. Connecticut (1965), a case holding that married couples have the right to use contraception. This right was later broadened by the Court to include non-married couples.

In Planned Parenthood v. Casey (1992) the Court extended the Constitution’s guarantee of autonomy in intimate matters to include abortion, arguing that abortion, like contraception, was a personal decision. As Justices O’Connor, Kennedy and Souter wrote in their opinion, “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” They argue that “these 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. 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.”

In later decisions, the Court would use this idea of a privacy guarantee to defend gay rights. In its 2003 decision in Lawrence v. Texas , the Court invoked the liberty provision of the Due Process Clause to strike down a Texas law banning “ homosexual conduct .” The Due Process Clause of the Fourteenth Amendment provides that no state “shall . . . deprive any person of life, liberty, or property, without due process of law.” Texas had unconstitutionally deprived its gay citizens of their liberty by prohibiting them from having sexual relations. The opinion stressed that the Texas law conflicted with the right of all adults, gay or straight, to have personal choice in matters of consensual sexual relations. The Lawrence decision also helped lay the groundwork for the Court’s later holding in Obergefell that the right to marriage is fundamental and that same-sex couples cannot be excluded from it.

When Gorsuch wrote a dissertation to fulfill his PhD requirements at Oxford, his dissertation advisor, who deeply influenced his work, was John Finnis . Finnis, a prominent law professor at Oxford and Notre Dame, is a critic of the Court’s decisions about choice in intimate matters, specifically its support for abortion rights and same-sex marriage. Finnis rejects the idea that the state should protect individuals’ ability to make autonomous choices in these areas. Instead, his natural law theory calls for the state to promote a list of “basic goods.” He argues that such a philosophy is incompatible with same-sex marriage or abortion, both of which he thinks should be prohibited by law. Indeed, he refers to heterosexual marriage as the only “real” kind of marriage.

Gorsuch invokes Finnis’ natural law framework in his dissertation, which focuses on the legal debate around physician-assisted suicide. Stressing the importance of “human life as a basic good,” Gorsuch argues that there is no constitutional right to physician-assisted suicide. Instead, he claims that the government can protect the basic good of life by preventing the seriously ill and their doctors from making the choice to end it. He writes, “ruling out a ‘bad choice’ does not necessarily evince disrespect for the chooser, but for the choice he or she made; after all, parents punish children who make bad choices, not because they disdain them, but because they love them and do not wish to see them make bad decisions.”

Gorsuch’s criticism of choice in the context of assisted suicide includes a broader attack on the idea of a constitutional right to autonomy in intimate personal matters. This attack focuses on the Court’s Casey decision, critiquing the opinion from Casey quoted above and negatively referencing same-sex marriage. Casey upheld the right to abortion and confirmed the Constitution’s protection of individual autonomy in intimate personal matters. Gorsuch argues that recognizing this right to autonomy would mean that the state would have to allow every type of voluntary adult intimacy, even those he thinks should clearly be illegal. He writes that Casey ’s invocation of a constitutional right to personal choice is “open to question on the ground that it proves too much.” He continues,

If the Constitution protects as a fundamental liberty interest “intimate” or “personal” decisions, the Court arguably would have to support future autonomy-based constitutional challenges to laws banning any private consensual act of any significance to the participants in defining their “own concept of existence.” As Judge O’Scannlain queried in dissent in the Ninth Circuit’s proceedings: “If physician-assisted suicide is protected ‘intimate and personal choice,’ why aren’t polygamy, consensual duels, prostitution, and, indeed, the use of illicit drugs?” Justice Scalia raised much the same question in Lawrence, contending that “State laws against bigamy, gay marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” are all at risk if we take seriously what Justice Scalia derided as Casey’s “famed sweet-mystery-of-life passage.”

In the quoted passage, Gorsuch marshals evidence against Casey’s embrace of a broad right to privacy because that right threatens his strong opposition to assisted suicide. The gist of the paragraph is that the Casey decision is open to question because it would allow for a long list of rights that he thinks should clearly not protected by the Constitution. He cites Justice Scalia to suggest that gay marriage, like bestiality, should be included on this list.

Part of what is concerning here is the conflation of gay marriage, which is central to the family life of gay and lesbian people, and practices like bestiality, which should be prohibited. In criticizing the doctrines of autonomy and privacy, Scalia places gay marriage and bestiality in the same category, ignoring the obvious distinctions. Gorsuch, in turn, fails to distance himself from this reasoning.

In a book based on his dissertation, The Future of Assisted Suicide and Euthanasia , published in 2006, Gorsuch moves this Scalia quote to a footnote. Did he do so because he has changed his mind and wants to differentiate his view from Scalia’s? Or did he wish to make opaque his true opinion about the topic, revealed in his dissertation? The confirmation hearings are the place to ask.

Gorsuch’s dissertation was written before the Court’s 2015 decision in Obergefell . As an appellate judge, Gorsuch is bound to follow the holdings of the Supreme Court. But as a Supreme Court justice, he would be free to participate in overturning Obergefell and abolishing this right. The Obergefell decision rested on a rationale of marriage as a fundamental right, an argument that goes beyond the choice rationale Gorsuch addressed. Therefore, Gorsuch should also be asked whether this argument led him to change his position on gay marriage. If he refuses to answer, we are left only with his negative comments from the dissertation to help us discern whether he would work to revoke the right of same-sex marriage. Given his criticism of personal autonomy protections and his invocation of Scalia’s dissent in Lawrence , he should also be asked whether he would overturn the Lawrence decision, a move that could eventually open the door to new laws against gay sex.

If Judge Gorsuch had been a Supreme Court justice during the Lawrence and Obergefell cases, it is quite possible that he would have decided these cases differently. However, this does not automatically mean that he would vote to overturn them if he were to join the Court now. After all, some justices may leave decisions in place out of respect for precedent rather than whole-hearted agreement. Gorsuch acknowledges, for instance, that Casey ’s holding is based in “stare decisis,” the concept justices invoke to acknowledge the legal authority of previous rulings. But we have reason to doubt that he would simply defer to precedent as a Supreme Court Justice. Gorsuch subscribes to the constitutional theory of originalism, whose proponents stress the original meaning of the Constitution as a legal authority over precedent when the two conflict.

Gorsuch’s affinity with the views of his adviser Finnis on natural law, his approving citation of Scalia’s views on gay marriage, and his skepticism of the Court’s jurisprudence on the right to chose in matters of personal intimacy all suggest that he might vote to reverse the decision protecting same-sex marriage. Defenders of gay rights have reason to worry that he would roll back the clock on this important issue, and senators should use the upcoming confirmation hearings to find out from Gorsuch exactly where he stands.

Brettschneider is Professor of Political Science at Brown University and the author of When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality. He holds a Ph.D. in Politics from Princeton University and a law degree from Stanford Law School.

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• Neil Gorsuch’s conservatism is different from Antonin Scalia’s

Medieval theology could influence the court in the 21st century

CONFIRMATION hearings for Supreme Court justices have become frustrating affairs. Senators pontificate and probe while nominees utter bromides and dodge questions for hours on end. In his stint before the Judiciary Committee this week, Neil Gorsuch, Donald Trump’s pick for the court, has been especially tight-lipped. Senators have elicited only glimmers of what makes the 49-year-old judge with a decade on the Tenth Circuit Court of Appeals most interesting, or most worrisome: his affinity for a family of legal theories called “natural law”. Though Mr Trump promotes his nominee as drawn from the mould of Antonin Scalia, the conservative jurist Mr Gorsuch was tapped to replace, he represents a stark departure from a central feature of Mr Scalia’s jurisprudence.

Mr Scalia saw the constitution as “a practical and pragmatic charter of government” that neither requires nor permits “philosophising”. In a right-to-die case in 1990, he quipped that the nine justices were no better suited to make fine distinctions on the morality of life support than “nine people picked at random from the Kansas City telephone directory”. By contrast, Mr Gorsuch seems more ready to let his philosophical judgments out. Tapping into a tradition that reaches back to Thomas Aquinas and Aristotle, natural law says that some things are objectively good in themselves and should therefore serve as lodestars for individuals and societies. John Finnis, Mr Gorsuch’s dissertation adviser at Oxford and one of the world’s foremost natural-law theorists, lists these goods as knowledge, aesthetic appreciation, play, friendship, practical reasonableness, religion and—most notably—life.

In the second day of his hearings on March 21st, Mr Gorsuch deflected inquiries into his old adviser’s positions on issues like abortion and gay rights. “I’m not here to answer for…Professor Finnis,” he said. “I’d ask you respectfully to look at my credentials and my record.” Such a look is revealing. In his doctoral work and book, Mr Gorsuch drew on the idea that “human life is fundamentally and inherently valuable” to argue against assisted suicide and euthanasia. When he first appeared before the Senate in 2006, he pledged he would keep his philosophical positions out of his judgments. “[P]ersonal views…have nothing to do with the case before me in any case”, he told Senator Lindsey Graham. The parties “deserve better than that”, he added, and “the law demands more than that.” Mr Gorsuch then emphasised that his writings “have been largely in defence of existing law” and are “consistent with the Supreme Court’s decisions in this area and existing law in most places.”

In “The Future of Assisted Suicide and Euthanasia”, written in 2006, Mr Gorsuch presented the ethics of end-of-life questions as fundamental to his sense of how the courts should handle lawsuits arising out of them. Though he has said that judges must “strive…to apply the law as it is”, not as they would like it to be, Mr Gorsuch’s natural-law lens is visible too. The first sign of a link between Mr Gorsuch’s “inviolability-of-human-life” view and his jurisprudence comes in his book’s ninth chapter, where he traces the roots of the idea that there is a moral imperative to respect “basic goods”. The idea is apparent “from life’s experiences” in which people deserve honour “out of respect for their innate value”, Mr Gorsuch wrote. Treating human life as inviolable is the premise of “our entire political system” and both the Declaration of Independence and constitution reflect the founders’ belief in “self-evident human rights and truths”.

Next, Mr Gorsuch surveyed rival perspectives on the sanctity of life and he found them all wanting: “[A]ny attempt to draw lines between different sorts of lives…seems almost inevitably to become…an arbitrary and subjective enterprise.” Even a small degree of arbitrariness “is simply not acceptable” in “policy decisions” involving “who is and is not treated as fully human”. Mr Gorsuch concluded that when judges review laws permitting terminally ill people to enlist the help of doctors in their deaths, they should keep in mind that such acts “are categorically wrong”.

Mr Gorsuch discussed one example—the Oregon Death With Dignity Act—and suggested, contrary to the Supreme Court’s approach, that judges should subject such laws to heightened scrutiny because they may threaten the right to life of terminally ill individuals. This suggests that Mr Gorsuch’s philosophical opposition to assisted suicide—now at odds with the law in six states (California, Colorado, Montana, Oregon, Vermont and Washington)—would in fact influence his judgment if these policies ever came before him. It also hints that Mr Gorsuch might be sceptical of laws allowing abortion and could—in line with Mr Trump’s oft-repeated wish—reconsider Roe v Wade , the nearly 45-year-old precedent protecting women’s reproductive choice.

Judicial adventures in metaphysics were anathema to the man who spent three decades in the seat to which Mr Gorsuch aspires. Throughout his career, Scalia amply criticised liberal justices who saw the constitution as a “living” document animated by principles such as autonomy or human dignity. (He likened the justification for Anthony Kennedy’s same-sex marriage opinion in 2015 to “the mystical aphorisms of the fortune cookie”.) Scalia would be ill at ease with Mr Gorsuch’s natural-law jurisprudence as well, even if its implications more closely match his conservative views.

Given the slim Republican majority in the Senate, the confirmation of Mr Trump’s first Supreme Court pick is all but assured. The Senate’s apparent lack of interest in Mr Gorsuch’s scholarship means America is likely to soon have a natural lawyer as its ninth justice—with little sense of what that would entail.

This article appeared in the United States section of the print edition under the headline “Neil Gorsuch: the natural”

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Judge Gorsuch on civil rights

Civil rights plaintiffs seeking a fifth vote on the Supreme Court did not typically look to Justice Antonin Scalia. His nominated replacement, Judge Neil Gorsuch, is unlikely to be on the top of civil rights plaintiffs’ list for a fifth vote either, based on a review of his decisions on the U.S. Court of Appeals for the 10th Circuit and other writings. In general, Gorsuch has not been reflexively pro- or anti-civil rights plaintiffs, and often expresses empathy with plaintiffs alleging discrimination or other violations of their civil rights. But at the end of the day, he tends to vote in favor of defendants and to adopt a narrow construction of civil rights statutes about as often as one would expect from a smart, quite conservative judge.

Sex and race discrimination cases

Like most appellate judges, Gorsuch has seen his fair share of discrimination cases, mainly suits under Title VII of the Civil Rights Act. He generally rules in favor of the defendant, often in unpublished decisions. There are, however, regular exceptions, such as Williams v. W.D. Sports, N.M., Inc. , in which Gorsuch wrote an opinion overturning a grant of summary judgment against a retaliation plaintiff; Orr v. City of Albuquerque , overturning a grant of summary judgment against a pregnancy discrimination plaintiff; and Barrett v. Salt Lake County , upholding a jury award for a retaliation plaintiff.

Absent a deep dive into the facts of each case, it is hard to say what such a record portends – one could give a similar description to the voting records of many liberal judges. It is important to keep in mind that many appeals in the circuit courts turn on the sufficiency of the evidence of discrimination, not the kind of legal questions likely to confront a Supreme Court justice. Nonetheless, some of Gorsuch’s decisions did involve questions of law or required an exercise of judgment that can shed some light on his likely treatment of civil rights litigants and statutes as a justice.

In Pinkerton v. Colorado Dep’t of Transp. , in 2009, Gorsuch joined a 2-1 opinion upholding summary judgment against a sexual harassment plaintiff. There was no real dispute that the supervisor had harassed the plaintiff (For example, “Mr. Martinez asked Ms. Pinkerton if she masturbated and if she had breast enlargements.”). The question was whether the employer was liable for the harassing conduct of the supervisor. Under Supreme Court precedent, that question turned in relevant part on whether the plaintiff had unreasonably refused to avail herself of the employer’s procedures for reporting sexual harassment. Gorsuch and his colleague concluded that the plaintiff had failed this requirement because she waited two months before reporting the harassment. The majority acknowledged her explanation that she feared retaliation from her supervisor, but held that “a generalized fear of retaliation simply is not sufficient to explain a long delay in reporting sexual harassment.”

In 2007, Gorsuch joined an opinion in favor of civil rights plaintiffs in Simpson v. Univ. of Colo. Boulder . The plaintiffs brought Title IX claims against a university alleging that they were sexually assaulted by members of its football team. The panel reversed the district court’s grant of summary judgment to the school, holding that there was sufficient evidence to go to a jury on whether the university was deliberately indifferent to the likelihood of sexual assaults of this kind. In particular, the court found there was evidence to support a finding: “(1) that CU had an official policy of showing high-school football recruits a ‘good time’ on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a ‘good time,’ and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference.”

In Strickland v. UPS , Gorsuch dissented from a 2009 panel decision upholding a jury verdict in favor of a female UPS driver alleging sex discrimination. The majority believed that although the manager treated many employees (male and female) poorly, even the badly treated male employees “testified Strickland was treated differently from every male employee [the manager] supervised.” Gorsuch disagreed, writing that the “record in this case shows that [the supervisor] harassed male employees in very much the same manner as he harassed Ms. Strickland.”

In Almond v. Unified School District #501 , in 2011, Gorsuch wrote an opinion narrowly construing the Lilly Ledbetter Fair Pay Act – which lengthens the statute of limitations for “discrimination in compensation claims” – to not apply when two school custodians were allegedly forced to accept transfers to other custodial positions with lower pay.

In 2007, in Montes v. Vail Clinic, Inc. , Gorsuch wrote an opinion holding that a hospital rule requiring housekeeping staff to speak only English when working in an operating room did not create a hostile work environment for Hispanic employees. While recognizing that English-only rules can, in some instances, violate Title VII, Gorsuch reasoned that this particular rule did not because it was limited to a specific time and place when and in which the employer had an especially strong interest in ensuring good communications between the cleaning and other medical staff.

In Zamora v. Elite Logistics, Inc. , in 2007, the 10th Circuit sat en banc to review discrimination claims by an employee who alleged that his employer suspended him from work until he produced documentation of his right to work in the United States, and then fired him after he produced the documentation and demanded an apology. Gorsuch joined the majority opinion that ruled against the worker, as well as a concurrence that elaborated on the reasons for rejecting the demand-for-documentation claim. He then penned a short concurrence of his own, stating that the majority decision had wisely declined to rule on the interrelationship between Title VII (the federal employment discrimination statute) and the antidiscrimination provision of the Immigration Reform and Control Act because the plaintiff had not relied on the latter statute.

LGBTQ rights

Gorsuch has not encountered many cases addressing LGBTQ rights. As noted in prior coverage of his views on religious freedom, there are reasons to think that he would tend to favor those who object on religious grounds to antidiscrimination laws protecting LGBTQ people. Moreover, as has been widely reported, in a 2005 article in the National Review, Gorsuch pointed to lawsuits seeking marriage equality as an example of liberals’ inappropriate use of litigation to advance their political agenda. His two opinions addressing LGBTQ rights are consistent with that view, but do not provide much additional insight.

In a 2009 decision that brings to mind this term’s transgender bathroom case, Gorsuch joined a short, unpublished decision denying the Title VII claims of a transgender women who was prohibited from using the women’s restroom at her workplace until she could prove she had completed sex reassignment surgery. A panel of the U.S. Court of Appeals for the 9th Circuit, with Gorsuch sitting by designation, acknowledged in Kastl v. Maricopa Co. Comm. College Dist. that under circuit precedent, “transgender individuals may state viable sex discrimination claims on the theory that the perpetrator was motivated by the victim’s real or perceived non-conformance to socially-constructed gender norms.” But it held that the employer had acted instead on the basis of unspecified “safety reasons” rather than the plaintiff’s “gender.”

In 2015, Gorsuch joined a 10th Circuit opinion denying a temporary restraining order and preliminary injunction that would have forced a state prison to provide hormone therapy to a transgender inmate and to allow the inmate to wear women’s clothes. The opinion recites:

Prior to her incarceration in 1986, Ms. Druley was diagnosed with gender identity disorder (GID) and had two of three gender reassignment surgeries needed to change the gender of her body from male to female ….. Ms. Druley alleges that the ODOC defendants violated the Eighth Amendment’s prohibition on cruel and unusual punishment by stopping and starting her prescribed hormone medications and giving her inadequately low dosages of her hormone medication.

In particular:

Ms. Druley’s injunctive-relief motion requests an order directing ODOC medical staff to raise her hormone level in accordance with levels recommended by the [World Professional Association for Transgender Health] Standards of Care. Her complaint alleges that prison officials have started and stopped her hormone treatment numerous times over the last 27 years and currently prescribe a hormone dosage for her that is below the normal lowest dosage recommended by WPATH.

The panel concluded that the inmate was unlikely to succeed on the merits (and therefore was not entitled to preliminary relief) “in light of a decision from this court, Supre v. Ricketts , 792 F.2d 958, 963 (10th Cir.1986), in which we declined to recognize a constitutional right under the Eighth Amendment to estrogen hormone therapy for inmates with GID.” Instead, the court analyzed the claim under the ordinary standard for allegations of inadequate medical care in prisons, asking whether the prison showed “deliberate indifference to a substantial risk of serious harm.” The panel concluded that the inmate had not established deliberate indifference, reasoning that WPATH Standards of Care upon which she relied “‘are intended to provide flexible directions for the treatment’ of GID, and state that ‘individual professionals and organized programs may modify’ the standards’ requirements in response to ‘a patient’s unique situation’ or ‘an experienced professional’s evolving treatment methodology.’” The panel found that “Ms. Druley presented no evidence that the ODOC defendants failed to consider the WPATH’s flexible guidelines, failed to make an informed judgment as to the hormone treatment level appropriate for her, or otherwise deliberately ignored her serious medical needs.”

The court further held that the denial of permission to wear women’s clothing did not violate the equal protection clause. The panel relied on prior circuit precedent holding that discrimination on the basis of transgender status is not entitled to heightened scrutiny under the equal protection clause. Accordingly, the court asked only whether the prison’s decision bore “a rational relation to some legitimate penal interest.” Without explaining further, the panel concluded that “Ms. Druley did not allege any facts suggesting the ODOC defendants’ decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose.”

It is difficult to tell how much to read into this decision, given that the panel was bound by prior precedent denying a constitutional right to hormone treatment for transgender inmates and refusing to extend heightened protection against transgender discrimination under the equal protection clause. One might infer from Gorsuch’s general jurisprudential philosophy that he would be sympathetic to the prior decisions refusing to recognize these rights, but his joining this particular decision does not provide much insight into that question. Certainly, the panel had no interest in going out of its way to scrutinize the prison’s decisions on how to treat the inmate’s requests for more aggressive hormone therapy, but that could easily be attributed to a general deference towards the medical decisions of prison doctors (courts of appeals regularly seeing, and rejecting, inmate complaints about prison medical care).

Disability rights

Gorsuch has generally taken a narrow view of the lengths to which employers, schools and others must go to provide accommodations to individuals with disabilities.

Most notably, the Supreme Court is currently reviewing a 10th Circuit case that applied a rule adopted by Gorsuch in 2008, in Thompson R2-J School District v. Luke P. . The case concerned the scope of a school district’s obligation to provide children with disabilities a “free appropriate education,” known as a FAPE, under the Individuals with Disabilities Education Act. A prior Tenth 10th Circuit decision had stated that schools must provide a disabled student a “benefit” that is “more than de minimis ” but need not maximize the child’s potential. The opinion took no further steps to say where, within that broad range, the IDEA standard fell. Gorsuch’s opinion in Luke P . changed the wording slightly, stating “that the educational benefit mandated by IDEA must merely be ‘more than  de minimis. ’” That slight change in wording, however, transformed the non-controversial prior statement that a de minimis benefit is not enough into a rule requiring schools to provide nothing more than a slightly more than de minimis benefit. When another 10th Circuit panel applied Gorsuch’s rule, the Supreme Court granted certiorari. From the oral argument in Endrew F. v. Douglas County School District , it appears that Gorsuch’s rule will be reversed.

In another decision touching on an issue before the Supreme Court this term, Gorsuch wrote an opinion in 2015, in A.F. ex rel Christine B. v. Espanola Public School , holding that a student could not bring suit against her school under the Americans with Disabilities Act without first exhausting the administrative process for IDEA claims. Although the student had started the IDEA process, she successfully mediated the claims, making completion of the process unnecessary. Gorsuch and one of his colleagues nonetheless held that her failure to finish the IDEA process precluded bringing suit on the same essential complaint under the ADA. Judge Mary Beck Briscoe dissented, arguing the majority’s rule provided students and their families a disincentive to settle their IDEA claims prior to the conclusion of administrative proceedings. Just last month, in Fry v. Napolean Community Schools , the Supreme Court agreed that ADA claims must be exhausted when the gravamen of the suit is the denial of the IDEA’s core guarantee of a FAPE (but not, as in Fry , when the claim relates to some other form of disability discrimination). But the court did not address whether the successful mediation of an IDEA claim satisfies that requirement.

In Garcia v. Bd. of Educ. of Albuquerque Pub. Sch. , in 2008, Gorsuch wrote a somewhat unusual decision on behalf of a unanimous panel in another IDEA case. Rather than decide whether the trial court erred in finding that the school’s alleged violations did not harm the student, Gorsuch and his colleagues ruled that even assuming there were harmful violations, the district court acted within its discretion in denying any remedy. Gorsuch noted that the IDEA’s remedial provision directs the district court to “grant such relief as the court determines is appropriate.” This language, the court held, afforded the district court its traditional broad discretion in fashioning equitable relief, including the power to deny any relief at all in some cases. Here, Gorsuch wrote, the plaintiff had shown little interest in attending school, justifying the district court’s refusal to order the school to provide her additional, “compensatory education” beyond what was already available to her at the school.

In the employment context, Gorsuch has also resisted broad constructions of disability rights statutes. For example, in Hwang v. Kansas State Univ. , in 2014, the 10th Circuit confronted the question “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?” “Unsurprisingly,” Gorsuch wrote for the court, “the answer is almost always no.” The case involved a university professor with a one-year contract. Before the first term of teaching began, she was diagnosed with cancer and given six months of disability leave. When she could not return and asked for more time, the school refused and terminated her. The Rehabilitation Act requires federal-funds recipients, like most public universities, to provide reasonable accommodations to otherwise qualified individuals with a disability. Gorsuch wrote:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work.

He held open that that a brief period of leave might constitute a reasonable accommodation in some cases:

Still, it’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address.

In Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City , in 2012, Gorsuch and his colleagues affirmed summary judgment against the disability discrimination claims of a residential treatment center seeking a variance from zoning rules that otherwise required it to locate its facility in a rural area. Among other things, the opinion narrowly construes the disparate impact theory afforded by the Fair Housing Act. Gorsuch wrote:

[W]hile the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense.

Finally, in 2012, in Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Oklahoma , Gorsuch wrote a panel opinion holding that Title II of the Americans with Disabilities Act does not provide a cause of action for disability discrimination in public employment. Title I of the ADA is devoted to employment discrimination, so the question was whether Title II provides overlapping protection (and potentially broader recourse). Gorsuch’s opinion gives a close reading to the statutory text and context, reaching a conclusion consistent with the majority view in the circuits.

Inmates’ rights

With the occasional exception of a certain religious observance claims under the Religious Land Use and Institutionalized Persons Act, discussed in another post , Gorsuch has generally ruled against inmates bringing complaints about the conditions of their confinement.

In 2008, in Shook v. Bd. of Cty. Commissioners of Cty. of El Paso , Gorsuch wrote an opinion upholding denial of class certification of inmates with mental illness held in a county jail. The inmates alleged a broad range of inadequacies in the treatment of mentally ill inmates, including denial of medications, inadequate monitoring of suicidal inmates and excessive use of force. Gorsuch wrote that class certification was properly denied because the class members’ conditions and experiences were too diverse to be treated on a class-wide basis. The plaintiffs could not avoid the need for individualized remedies by asking for relief in broad terms such as seeking “safe and appropriate housing” or an order prohibiting uses of force that “pose a substantial risk of serious harm.” Gorsuch suggested instead that the inmates bring individualized actions for damages and held open the possibility of another, more narrowly defined class action in a future case.

Gorsuch rejected a male inmate’s objection to being strip-searched by a female guard in Harvey v. Segura , in 2016. In a short, unpublished decision, the court simply declared that it saw no flaw in the district court’s ruling that “Mr. Harvey failed to allege any facts suggesting that the search was conducted in an abusive fashion or with excessive force and, accordingly, failed to plead a claim under the Eighth Amendment.” At the same time, Gorsuch ruled that the guard was entitled to qualified immunity against the inmate’s First Amendment freedom of religion claim because “it wasn’t clearly established at the time of the incident here that a prisoner had a right to be free from a strip search by a guard of the opposite sex on the basis of religious convictions.”

Gorsuch did, however, rule in favor of a young boy subjected to abuse in a juvenile detention facility in Blackmon v. Sutton , in 2013. He introduced the case this way:

Weeks before eleven-year-old, 4′11,″ 96–pound Brandon Blackmon arrived at the juvenile detention center in Sedgwick, Kansas, officials there made a new purchase: the Pro–Straint Restraining Chair, Violent Prisoner Chair Model RC–1200LX. The chair bore wrist, waist, chest, and ankle restraints all. In the months that followed, the staff made liberal use of their new acquisition on the center’s youngest and smallest charge. Sometimes in a legitimate effort to thwart his attempts at suicide and self-harm. But sometimes, it seems, only to punish him. And that’s the nub of this lawsuit.

The panel held that, at least on the plaintiff’s version of the facts at summary judgment, the defendants crossed a clearly marked constitutional line and were therefore not entitled to qualified immunity.

Posted in A close look at Judge Neil Gorsuch’s jurisprudence , Nomination of Neil Gorsuch to the Supreme Court

Recommended Citation: Kevin Russell, Judge Gorsuch on civil rights , SCOTUSblog (Mar. 14, 2017, 2:54 PM), https://www.scotusblog.com/2017/03/judge-gorsuch-civil-rights/

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On September 9, 2011, the Notre Dame Law School hosted an all-day conference whose visiting speakers included some of the most eminent names in legal and moral philosophy, among them professors Germain Grisez, Robert P. George, Joseph Boyle, John Keown, Patrick Lee, Dean Timothy Endicott, and the Rev. Peter Ryan.

Not that this took away from his renowned scholarly and intellectual acumen, but only one name on the list was not listed as a professor but as a judge for the Tenth Circuit Court of Appeals: the Honorable Neil M. Gorsuch.

What was President Donald J. Trump’s Supreme Court nominee, an Episcopalian judge, doing at this conference among predominantly renowned Catholic academics? He, one among equals, was honoring a man who inspired all of these great minds, one of the most influential living philosophers in the world, the Catholic natural law theorist John M. Finnis.

Oxford University Press was honoring Finnis with the distinguished privilege of publishing a five-volume work of his essays, and by republishing Finnis’ magnum opus, his 1980 book “Natural Law and Natural Rights,” which was one of the most significant books of the twentieth century to be written on natural law theory. As a result of this honor the conference was held at Notre Dame Law School, where Finnis taught when he was not at Oxford, spending his time between the two schools.

A Philosopher of Human Life and Dignity

As a moral and legal philosopher, Finnis has done breakthrough work on natural law and natural rights, and has written widely on such issues as abortion, gay marriage, and sexual ethics, exuding a pro-life perspective and one that defends the dignity of marriage as an institution between one man and one woman on the basis of natural law theory.

Finnis supervised Gorsuch’s doctoral studies at Oxford and directed Gorsuch’s dissertation on the moral and legal implications of assisted suicide and euthanasia. This was the beginning of the work that would eventually become Gorsuch’s authoritative book on the topic, “The Future of Assisted Suicide and Euthanasia.”

One of Finnis’ protégés, who also did his doctorate under the Oxford philosopher, is Princeton professor and heavyweight intellectual Robert P. George. On his Facebook page, George made public these comments about Judge Gorsuch a week before President Trump even nominated him, referencing these men’s mutual connection and debt to Finnis:  “Judge Gorsuch is a friend of mine and someone I greatly admire. He would be a superb Supreme Court justice. He is intellectually extremely gifted and is deeply committed to the (actual) Constitution and the rule of law. He will not manufacture ‘rights’ or read things into the Constitution that aren’t there or read things out of the Constitution that are.”

George continued: “Judge Gorsuch’s excellent book, *The Future of Assisted Suicide and Euthanasia* is published under my general editorship in the Princeton University Press New Forum Books series. He also contributed a fine essay to a collection of writings in honor of John Finnis that I co-edited with Professor John Keown of Georgetown. Professor Finnis, the eminent Oxford legal and moral philosopher who revitalized the study of natural law in Anglo-American analytical philosophy and jurisprudence, was Judge Gorsuch’s doctoral dissertation supervisor.  (He also supervised my doctoral work and Professor Keown’s.)”

A Heavyweight Defender of Society’s Most Vulnerable

Many stories have come out already about why conservatives should be optimistic about Gorsuch as the Supreme Court nominee. These included a judicial history of supporting religious liberty, including siding with both Hobby Lobby and the Little Sisters of the Poor when their religious liberties were being threatened by provisions from Obama’s Affordable Care Act. Also noteworthy is Gorsuch’s defense of the sanctity of human life in both his book and published articles on euthanasia and assisted suicide.

While Gorsuch has not commented publically on abortion and Roe v. Wade remains the most hot-button issue in public discourse when a Supreme Court seat becomes vacant, the fact that Gorsuch is a protégé of Finnis should bring much hope in this area. Not only has Finnis written against the immorality of abortion through a consistent philosophy of natural law and natural rights, he has also publically debated some of the biggest advocates of abortion in academia.

In a debate Finnis partook in, squaring off against the ethicists Peter Singer and Michelle Little, both known advocates of legal abortion, Finnis made a powerful and poignant argument about the very language that is used in denigrating and dehumanizing unborn lives.

About the moral status of the phrase ‘the fetus,’ I will just say this. As used in the conference program and website, which are not medical contexts, it is offensive, dehumanizing, prejudicial, manipulative. Used in this context, exclusively and in preference to the alternatives, it is an F-word, to go with the J-word, and other such words we know of, which have or had an acceptable meaning in a proper context but became in wider use the symbol of subjection to the prejudices and preferences of the more powerful.

Finnis’ point, so often overlooked in our cultural discourse, is that outside of its medical usage the phrase “the fetus” is offensive, as it is deliberately used to dehumanize an unborn child and, by consequence, make it easier to justify an act as atrocious as abortion by manipulating the reality.

“It’s not a fair word, and it does not suggest an open heart,” Finnis said. “Those of you who have an open mind or a fair heart may wish to listen to every speaker at this conference, and see whether they are willing to speak, at least sometimes, of the unborn child or unborn baby, and to do so without scare quotes or irony.”

Many doctoral students who have worked under Finnis have become his intellectual protégés. Among these are George and Keown, who have done significant scholarship of approaching moral and legal issues from a Catholic natural law perspective. Perhaps Judge Gorsuch, another Finnis protégé, will be able to bring such a perspective to the Supreme Court.

• human dignity
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• John Finnis
• moral philosophy
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• natural rights
• Neil Gorsuch
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Supreme Court Justice Neil Gorsuch

August 9 at 12:00 PM - 1:00 PM

Author of Over Ruled: The Human Toll of Too Much Law

Friday, August 9, 12:00 PM

Book Talk and Signing

Richard Nixon Presidential Library and Museum

Neil Gorsuch is an Associate Justice of the United States Supreme Court. His most recent book, A Republic, If You Can Keep It , was a New York Times bestseller and won the 2022 Burton Award for Book of the Year in Law.

Appointed by President Trump in 2017 to fill the vacancy left by Justice Antonin Scalia, Justice Gorsuch attained a long list of legal and scholarly accomplishments before reaching the nation’s highest court. A graduate of Columbia College (B.A.), Oxford (D. Phil), and Harvard Law School (J.D.), Gorsuch clerked for the United States Court of Appeals for the 10th Circuit, before clerking for Justices Byron White and Anthony Kennedy on the United States Supreme Court. He’s worked as a lawyer in private practice, and as principal deputy to the associate attorney general, helping to oversee areas of constitutional law, civil rights, and environmental regulation.

Tickets include a copy of Over Ruled: The Human Toll of To Much Law.

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OSHA Dodges a Significant Blow... This Time Around!

• Brian L. Warrick, PhD, CSP, CIH
• July 31, 2024

In a brief order on July 2, 2024, the Supreme Court declined to hear a challenge against the Occupational Safety and Health Administration (OSHA) despite opposition from Justices Clarence Thomas and Neil Gorsuch. The challenge, brought by Ohio-based contractor Allstates Refractory LLC, argued that Congress unconstitutionally delegated its legislative powers to the executive branch by granting OSHA broad authority to set and enforce workplace standards.

Key Takeaways:

• Supreme Court Decision: The Supreme Court’s refusal to hear the case leaves OSHA’s authority intact.
• Challenge Details: The challenge was supported by Republican-led states and anti-regulatory groups, which claimed excessive power delegation to OSHA.
• Conservative Justices’ Stance: Justices Thomas and Gorsuch wanted to address the constitutional questions raised by OSHA’s broad authority.
• Broader Context: This decision follows other recent Supreme Court actions limiting federal agency powers, such as invalidating the SEC’s in-house enforcement system and overruling the Chevron deference.
• Implications: OSHA retains its current authority, but debates over the extent of power delegated to federal agencies continue.

Imagine a world without safety and health standards: workplaces would become hazardous, leading to a significant increase in injuries, illnesses, and fatalities. Employees would constantly face risks, resulting in lost wages, medical expenses, and long-term health issues. Businesses would suffer from decreased productivity, higher insurance costs, and potential legal liabilities. The lack of a safe working environment would also lower employee morale, job satisfaction, and increase absenteeism and turnover rates. Additionally, without proper safety guidelines, companies would face increased challenges in managing risks, leading to more frequent and severe incidents that could have been prevented with effective risk management practices.

Over the past 50 years, OSHA has significantly improved workplace safety, reducing worker deaths from about 38 per day in 1970 to 15 per day in 2022 and decreasing injuries and illnesses from 10.9 incidents per 100 workers in 1972 to 2.7 per 100 in 2022. Key achievements include implementing asbestos, cotton dust, and hazard communication standards and providing critical COVID-19 guidelines. OSHA has also established the OSHA Training Institute, the Voluntary Protection Program, and the Safety and Health Achievement Recognition Program (SHARP) to promote safety, education, and effective worksite practices. Additionally, OSHA’s On-Site Consultation Program has helped small and medium-sized businesses identify hazards, develop safety programs, and train employees, further reducing workplace injuries and fatalities.

If you’re a small or medium-sized business in Florida, use the Florida On-site Consultation Program to enhance workplace safety. This no-cost, confidential service can help you identify potential hazards, develop effective safety programs, and provide training for your employees. By participating, you can create a safer work environment and contribute to reducing workplace injuries and fatalities. Contact the Florida On-site Consultation Program today to schedule your consultation and take the first step towards a safer workplace!

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