"Neil Gorsuch wrote the book on assisted suicide. Here’s what he said."

Writes Derek Hawkins in The Washington Post.

In 2006, the year he was nominated to the federal bench, he released a heavily-researched book on the subject titled “The Future of Assisted Suicide and Euthanasia.”... In it, Gorsuch reveals that he firmly opposes assisted suicide and euthanasia, and argues against death with dignity laws, which currently exist in just five states. His reasons, he writes, are rooted in his belief in an “inviolability” of human life.

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

You see the connection to arguments for abortion rights. I'm interested to see at how Gorsuch opponents avoid getting tangled up in... death.

[I]n the early 2000s... Gorsuch attended Oxford University [and] studied legal and moral issues related to assisted suicide and euthanasia under the Australian legal scholar John Finnis, a staunch opponent of aid-in-dying measures....

[In his 300-page book, Gorsuch] touches on everything from Greek and Roman laws on taking one’s own life to present-day arguments in support of aid-in-dying legislation.... [He] seems to have been alarmed by the sudden proliferation in the mid-1990s and early-2000s of proposals seeking to legalize physician-assisted suicide or euthanasia. He also cites the flurry of articles, books and defenses that emerged after the late Dr. Jack Kevorkian made headlines in 1990 for helping an Alzheimer’s patient kill herself. One particular work that seemed to bother him was Final Exit, a popular book by the right-to-die organization the Hemlock Society that describes various methods of “self-deliverance,” including suicide by plastic bag and firearm.

Some of Gorsuch’s sharpest criticisms were directed at one of his fellow jurists, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Posner has written in favor of permitting physician-assisted suicide, arguing that the government should not interfere with a person’s decision to take his or her own life, especially in cases where the patient is terminally ill.

Gorsuch rejected that view, writing it would “tend toward, if not require, the legalization not only of assisted suicide and euthanasia, but of any act of consensual homicide.” Posner’s position, he writes, would allow “sadomasochist killings” and “mass suicide pacts,” as well as duels, illicit drug use, organ sales and the “sale of one’s own life.”

Gorsuch concludes his book by envisioning a legal system that allows for terminally ill patients to refuse treatments that would extend their lives, while stopping short of permitting intentional killing.

So, Gorsuch is distinctly not a libertarian. I'm putting the book in my Kindle, because I want to look more closely how he connects abortion to suicide. I've taught the abortion and assisted suicide cases for many years, and what's always seemed importantly different about assisted suicide is the problem that a few years back got labeled "death panels." It's one thing for an individual woman to decide to decline to devote her own body to the gestation of a new individual and for courts to deprive the group of the power to force her to do it. It's quite another to empower the group to deliver death to an individual who is suffering at the end of life when the group is in a position to benefit emotionally and financially from ridding itself of this needy and vulnerable person. 

AND: I do realize that I have a lot of readers who are about to tell me that it's not quite another thing, it's the same thing. I do understand the way in which the 2 things are the same. I am highlighting the way they are different.

"Kevorkian's ghoulish reputation is belied by the videotaped consultations in the archive."

"They show Kevorkian turning down many people seeking assistance and only signed on after he spoke to them and their family members and was assured of their terminal state. That can be seen in interviews with Poenisch's mother, Merian Fredericks, and an unidentified woman suffering from severe rheumatoid arthritis and other ailments. The 1994 interview shows the woman from the neck down, in a wheelchair, with her legs amputated and one eye removed. She says that Kevorkian had 'counseled me a couple years ago' and suggested that she should keep trying other remedies. Now, she tells him, 'I am really full of despair because the pain can't be controlled. And I'd really like an out.'"

From "Kevorkian archive opens as physician-assisted deaths rise."

Nothing in the article about the privacy interests of the patients. I'm amazed that these videos are available — at Bentley Historical Library at The University of Michigan, donated by Ava Janus, Kevorkian's niece and sole heir.

"But what if someone sincerely believes that he is obligated by his own religion, or at least motivated by that religion, to assist suicide?"

Asks Eugene Volokh.

What if, for instance, he believes that the parable of the Good Samaritan commands him to help his patient, or his wife, or anyone else to escape pain — or what they feel to be indignity — by helping them end their lives? (Assume that the target of this help wants to die, is in pain and is already near death. And assume that we’re in a state that forbids assisting suicide.)...

The federal Free Exercise Clause doesn't require accommodations, but there are statutes and state constitutional law provisions that give relief from substantial burdens on the exercise of religion unless the government has a compelling interest that can only be served by imposing that burden.

[T]he government [could say] that it has a compelling government interest in preventing people from being pressured into giving up their lives, and that a total ban on assisted suicide is the least restrictive means of preventing such pressure.... [S]ubtle pressure can happen even while the relatives are denying to themselves that they actually want the person to die... [O]nce assisted suicide becomes just another choice... families might subtly or overtly threaten to withdraw their affections, and the ill person may find life no longer worth living.... Is there a compelling interest in preventing such emotionally or psychologically pressured choices (even if not forcibly coerced choices) in favor of suicide?

I have an old Religion-and-the-Constitution exam somewhere — not in this computer — where I made up a religion that had an "assisted suicide" belief, basically a ritualistic killing of persons who had reached a certain stage of debilitation in proximity to death. My hypothetical went beyond a religious belief that one ought to help a dying person die when that person wanted to die. In "my" religion, the dying person also had an obligation to depart. I explained these religious beliefs with such dry neutrality that not one student expressed any outrage or disgust.

I wonder what Professor Volokh would say if the dying person's desire to die rested on religious obligation.

ADDED: In my exam hypo, the individuals who were killed were members of the religion, sharing the killer's belief system. In Volokh's hypothetical, the killer could be a real Dr. Death Reverend Death, ministering to everyone who wants to die (and is in pain and near death). Dr. Kevorkian, but with religion.

AND: Kevorkian, much criticized by religionists, was hostile to religion:

In his keynote address at the Freedom From Religion Foundation annual convention in 1990, Kevorkian told convention-goers: "Religion is telling law what to do, and law is telling doctors what to do. Religion dictates to law, and law dictates to ethics. No wonder we have problems. That's insanity!"

Missing limbs of the morning.

There are many things I see that seem almost bloggable, that I decide to pass up for one reason or another. And then there are things upon which I've recently passed, that become bloggable because the next thing I see resonates with that otherwise unbloggable thing. Here's something I passed on:



Here's the next thing I saw:



#1 is a statue with one leg broken off, purportedly by a museum-visitor who climbed onto its lap to take a selfie. Looking at the original...



... I said, aloud, in the privacy of my home: "The statue was asking for it." I liked my wisecrack, but also saw how I could be attacked for making humor in the general vicinity of rape.

It's not squarely a rape joke, because: 1. Climbing onto an inviting knee is not sexual intercourse, 2. It's a statue, and 3. Most politically correctly: The joke isn't mocking victims but those who blame victims.

That twinge of fear that I could be criticized for saying something wrong was the first small count against blogging, but I would have blogged it. What made it unbloggable was: 1. The broken statue is only a reproduction of the truly valuable ancient original (called the "Barberini Faun" or "Drunken Satyr"), and 2. The news story comes from a few weeks ago. I moved on.

Then I saw #2, which is a painting by Dr. Jack Kevorkian, the old, now deceased, Dr. Death, who was the unpleasant face of physician-assisted suicide for many years. The painting is called "Paralysis," so it appears to depict the subjective experience of being paralyzed on one side of the body — as subjectively perceived by a doctor-artist who favors accepting the preference for death by those who are forming that preference within their subjective experience of physical impairment.

And thus within the subjective experience of blogging, for me, the Drunken Satyr stirred to life.

30 lawyers each pick a book that every lawyer should read, and Dr. Kevorkian's lawyer, Geoffrey Fieger, picks...

... "The Little Prince"!

“The Little Prince connects you with your own being so you’re looking inward rather than outward. When you really get down to trial work there isn’t a mechanism where you learn tricks for convincing people of something you really don’t believe. It all has to come from inside you and requires self-examination. I don’t think it has relevance for lawyers doing transactions or mergers and acquisitions. It does have relevance for those who seek to do what I do, which is trial law.”

A somewhat similar perspective comes from Sam Adam Jr. (who represented Governor Blagojevich at trial):

“Respect For Acting [by Uta Hagen] taught me how to look inside yourself and bring out those things that other people see, or want to see, to take a look at a character and understand who that character is in order to become that person. That’s what a whole lot of trials are about—preconceived notions about who you are, and who your client is. You can quickly sum up who the audience wants you to be.”

There are a lot of different ways to look inside yourself. Interesting to think about the lawyerly ways.

Dr. Death dead.

Jack Kevorkian, 83, "claimed to have assisted in at least 130 suicides. Convicted of second-degree murder in the late '90s, he spent eight years in prison."