Gorsuch, Abortion and the Concept of Personhood
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.”
In his writings, Judge Gorsuch has not said whether he considers a fetus to be a constitutional person. But in his book he emphasizes the question when he contrasts the central holding in Roe with Justice Byron White’s dissent from a 1986 abortion decision. Justice White argued, in Judge Gorsuch’s words, that “the right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not.” The crucial point for Justice White was that abortion ends the “personhood” of the fetus. So does Judge Gorsuch consider a fetus a constitutional person, entitled to the protections of the 14th Amendment?
The senators considering his nomination this week should explore this issue.
Of course, abortion is not the only question relevant to Judge Gorsuch’s confirmation. Many top scholars and judges have vouched for his integrity and commitment to the Constitution. But the American people deserve to hear how his views about constitutional personhood might shape the future of abortion rights in the United States.
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