Supreme Court nominee Neil Gorsuch has frustrated legislators on both sides of the aisle with his refusal to talk specifics on several major issues he could rule on if he’s confirmed. But one matter on which his past writings offer a detailed picture of his views is medical aid in dying, sometimes referred to as physician-assisted suicide.
In 2006, Gorsuch wrote “The Future of Assisted Suicide and Euthanasia,” a 311-page book in which he “builds a nuanced, novel, and powerful moral and legal argument against legalization,” the book proclaims on its back cover. Gorsuch also addressed questions on the polarizing issue during his Senate Judiciary Committee confirmation hearings.
Responding to questioning by California Sen. Dianne Feinstein, Gorsuch said he would be “delighted” to speak about what he had written in his book. Gorsuch said he agreed with the Supreme Court’s decision not to direct the removal of a feeding tube in Cruzan v. Director, Missouri Department of Mental Health.
“The Supreme Court recognized in Cruzan that there’s a right in the common law to be free from assault and battery, effectively,” Gorsuch said, “and assume that there was a constitutional dimension to that.”
The Cruzan case
On January 11, 1983, 25-year-old Nancy Cruzan was involved in a car crash that left her in a persistent vegetative state. She was kept alive with a feeding tube for years, before her parents asked doctors to remove it. The hospital refused, asserting that the decision would cause Cruzan to die, and they did not know for certain whether that’s what she would have wanted.
The Cruzans took their case to court. Their argument hinged in large part on testimony from Cruzan’s friend, housemate and coworker, Athena Comer, who testified about a “somewhat serious conversation” they had in which Cruzan told her that if she ever became sick or injured, she would not want to continue living, unless she could do so “at least halfway normally.”
In 1989, Cruzan’s became the first right-to-die case to reach the US Supreme Court. In a 5-4 split, it upheld the lower court’s decision, which found that Cruzan’s family could not direct the hospital to remove her feeding tube without adequate proof that it was the same decision she would make for herself, if she were conscious.
Writing for the for majority, Chief Justice William Rehnquist opined that although competent individuals have the right to refuse treatment for themselves, the burden of proof is much higher if someone else is seeking to make a life-altering decision for them. Caregivers’ decisions might not align with the ones an incapacitated person would make, Rehnquist argued, and actions such as discontinuing life support are irreversible.
After the case was decided, Cruzan’s parents collected additional evidence that she would want her life support discontinued, and the state withdrew from the case. Cruzan’s feeding tube was removed December 14, 1990. She died 12 days later, on December 26.
Gorsuch wasn’t involved in this case but said at his confirmation hearing that he wrote his book in his “capacity as a commentator — as my doctoral dissertation, essentially.” Still, he asserted his ability to shelve his personal feelings when ruling on the bench.
As things stand now, medical aid in dying is legal in five states: California, Colorado, Oregon, Vermont and Washington, as well as the District of Columbia. Montana doesn’t have legislation legalizing medical aid in dying, but a 2009 state Supreme Court ruling in support of it has set precedent. Prescribing a lethal dose of medication to anyone in the remaining 44 states is against the law.
‘Death with dignity’
In 2014, 29-year-old Brittany Maynard brought the right-to-die movement back into the country’s consciousness. On New Year’s Day, she learned that she had brain cancer. After multiple surgeries to stop her tumor from growing, Maynard learned that it had come back and was more aggressive. Doctors said she had fewer than six months to live.
“I do not want to die. But I am dying,” she wrote in an emotional essay for CNN in October 2014. “And I want to die on my own terms.”
Because California had not yet legalized medical aid in dying, Maynard and her husband, Dan Diaz, moved to Oregon to utilize the state’s Death With Dignity law.
Oregon was the first state to enact such a law, in 1997. In the 18 years after, 1,545 prescriptions have been written for a lethal dose of medication, of which 991 patients used that prescription to hasten their death, according to a study released this week. Most of those patients, like Maynard, had cancer.
Maynard made a series of videos with Compassion & Choices, a medical aid-in-dying advocacy group.
“I can’t even tell you the amount of relief it provides me to know that I don’t have to die the way that it’s been described to me that my brain tumor would take me on its own,” Maynard said in the first video.
Maynard and Diaz had been married less than a year when she was diagnosed with cancer. Uprooting their lives in California to move to Oregon was challenging for their entire family.
“That was one of the worst things, having to leave our home at that time,” Diaz told CNN’s Dr. Sanjay Gupta in 2016. “We move to Oregon; Brittany applies for this (lethal) medication; she puts it in the cupboard, and that’s it.
“We continue doing everything we can to extend her life,” Diaz said. “The fact that we had that medication, it didn’t change anything with regards to her battling cancer or her fighting. When you have cancer, you fight. That’s what you do.”
On the morning of November 1, 2014, Maynard had a small seizure.
“It passed,” Diaz said, “so we slept a little bit later that day. … We had breakfast. Brittany wanted to go for a walk, so we did. We took the dogs — because, again — being outdoors, that’s what fed Brittany’s soul.
“When we got back to the house … she just told me, she says, ‘Dan, it’s time. It’s my time,’ ” he recalled. “The suffering that she had endured leading up to that day, the seizure that morning, was a reminder of what she was risking — that if a seizure or a stroke occurs as her symptoms get worse, if she loses the ability to self-administer, if she suffers a stroke and she loses the ability to stand, walk or swallow, all of a sudden she’s now trapped in her own body, and she’s trapped dying the very way she was trying to avoid.
“It was around 4 o’clock in the afternoon,” Diaz remembered. “She wrote a final passage in her Facebook, kind of a letter to all her friends and loved ones, and within five minutes of taking that medication, Brittany fell asleep, just like I’ve seen her do a thousand times before. In 30 minutes, the medication slows brain function, including the parts that control breathing, so her respirations drop to a point where she passed away. That was the gentle passing that Brittany had, and that’s not the gentle passing that she would have had if the brain tumor would have continued to run its course.”
The high court
The day after President Donald Trump announced Gorsuch as his nominee to fill the Supreme Court vacancy, Diaz posted on his Facebook page: “I wish that Neil Gorsuch had had the opportunity to meet Brittany. He would have gotten to know a strong, intelligent, and loving person.
“I am sure that if Mr. Gorsuch had met Brittany, and then seen firsthand the reality of what she was battling as the brain tumor exacted it’s brutal symptoms upon her, his opinions on the matter of medical aid-in-dying would be significantly different.”
Diaz makes the case that Gorsuch “fails to provide a solution or alternative.”
“There is a very important distinction between extending a person’s life, versus prolonging a person’s dying process in a tragic way,” Diaz wrote. “The option of a death with dignity program does not result in more people dying; it results in fewer people suffering.”
Gorsuch didn’t offer any clear answers during his confirmation hearing.
“Supposing you cannot handle the pain and you know that it’s irreconcilable?” Feinstein asked.
“Senator, the position I took on that in the book was, anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death — not intentionally but knowingly. I drew a line between intent and knowingly. I’ve been there. I’ve been there.”