By Noah Feldman
If the U.S. Supreme Court were to reverse Roe v. Wade, individual states could still permit abortion. But, in theory, the Supreme Court could go further, and rule that laws permitting abortion violate the equal protection rights of unborn fetuses. That may seem far-fetched — but in his book on assisted suicide and euthanasia, Judge Neil Gorsuch lays out an argument that could easily be used to this end.
Gorsuch, President Donald Trump’s nominee for a seat on the Supreme Court, carefully avoids discussing abortion rights directly in his book. Yet his disparagement of what he calls “ageism” amounts to a principle that could easily be applied to fetuses.
For the record, I was and remain impressed by “The Future of Assisted Suicide and Euthanasia,” a book published by Princeton University Press. Gorsuch wrote the dissertation from which the book grew under the direction of John Finnis, the preeminent natural law theorist in the world today — and yet the book isn’t an exercise in natural law theory. When Gorsuch sets out to justify his argument that human life has intrinsic value, he doesn’t rely on either nature or nature’s God. Instead, he sets out a pragmatic justification based on human intuition — a viewpoint that is open to discussion and dispute.
The book is especially mature from the standpoint of legal theory. Unlike most Americans who have both a U.K. doctorate and American legal training, Gorsuch went to law school first and then to Oxford afterward. And he didn’t publish the book until he had been in legal practice for roughly a decade, which means he knew it would be read if and when he was up for the Supreme Court.
These are reasons to take the book’s arguments seriously — especially Gorsuch’s arguments about what he calls the “inviolability-of-life principle,” first discussed by Dylan Matthews in Vox.
Stated simply, the principle is that private individuals (as opposed to the government) should not be permitted to kill other people intentionally unless there is an important countervailing reason, such as self-defense or necessity.
On its face, the principle is not troubling; in fact, it’s intuitively plausible. As written, it says nothing about the question of whether fetuses are persons, as some anti-abortion advocates believe, or not, as the Supreme Court has ruled for purposes of the Constitution. That issue is analytically separate and distinct.
It’s also important to note that, in the book, the principle is moral, rather than legal. And it isn’t invariant. Gorsuch thinks that sometimes it might be permissible to allow another person to die, provided you don’t intend that result. Thus he thinks that a physician might under some circumstances be morally permitted to prescribe medication that might cause death if the intent is to relieve suffering, not to end life.
The tricky aspect of Gorsuch’s principle of the inviolability of human life has to do with its application to the constitutional doctrine of equal protection. Gorsuch considers in his book an Oregon law that allows doctors to prescribe lethal medications to terminally ill patients. He argues that such a law should fail equal protection analysis for two reasons.
First, Gorsuch suggests, the courts would have reason to scrutinize the law carefully because it discriminates between people “based on physical health (the terminally ill versus everyone else).”
Second, he says, even if the courts were to ask more deferentially only if the law has a rational basis, they could conclude that it’s irrational to treat the terminally ill as “meriting fewer protections … than the lives of all other persons.”
If it violates equal protection to let doctors prescribe lethal doses of medication only for the terminally ill, it could be argued by extension that it violates equal protection to allow the intentional killing of fetuses in the course of abortion.
To reach this conclusion, one would presumably have to believe that there is no meaningful or rational difference between fetuses and infants.
Gorsuch hints that there might be no morally significant difference between fetuses and infants in the course of rebutting the Princeton philosopher Peter Singer’s argument apparently justifying infanticide. Gorsuch says it would be “a prime example of what some would label ‘agism'” to treat people who have grown to be rational adults differently from infants simply because they were “lucky enough to be the offspring of parents who chose not to kill them.”
What Gorsuch is saying is that it’s ageism to treat infants differently from adults. If that’s the case, it might be similar ageism to treat infants differently from fetuses just because they were lucky enough to be born.
Perhaps needless to say, there are plenty of good philosophical reasons to treat fetuses differently from infants. Among other things, fetuses before viability by definition can’t live outside the womb. And Gorsuch can hardly be faulted for disagreeing with Singer’s provocation.
Nevertheless, if Gorsuch were to treat fetuses and infants the same for constitutional purposes, he might be open to the argument that abortion should be unconstitutional.
That argument would genuinely be outside the mainstream. To argue that Roe v. Wade created a constitutional right where none existed is a standard critique of the decision, one that would leave the issue to the states. To argue that allowing abortion is itself unconstitutional would radically change the rules of the game.
Gorsuch may say in his confirmation hearings that he won’t comment on Roe. That’s fair enough. But he should be asked about the equal protection argument. That isn’t going to come before him on the bench — unless he wants it to. And Gorsuch should be willing to repudiate the possible implications of his book’s argument.
(c) 2017, Bloomberg View
Noah Feldman is a Bloomberg View columnist and a professor of constitutional and international law at Harvard University.
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