Gorsuch Would “Walk Out the Door” If Asked to Overturn Roe

President Donald Trump introduces Gorsuch, accompanied by his wife, as his nominee for the Supreme Court at the White House on January 31, 2017. (Public Domain)

The following was an exchange between Supreme Court nominee Neil Gorsuch and Republican Senator Lindsay Graham during yesterday’s marathon confirmation hearings:

Graham: I don’t think there’s any reason to suggest you’re his [Trump’s] favorite. Had you ever met Mr. Trump personally?

Gorsuch: Not until my interview.

Graham: In that interview, did he ever ask you to overrule Roe v. Wade?

Gorsuch: No, Senator.

Graham: What would you have done if he had asked?

Gorsuch: Senator, I would have walked out the door.

This exchange is getting all kinds of coverage, and most of the analysis concludes or strongly implies that Gorsuch’s statement is a commitment not to overturn Roe v. Wade. As one example, here is Sophie Tatum’s take for CNN, where she puts Gorsuch’s statement at the hearing in the context of Trump’s promise to nominate a pro-life judge and then segues into “Gorsuch also defended the value of precedent…” This kind of analysis is making some of my pro-life friends furious and some of my pro-choice friends breathe a sigh of relief, but it’s a misunderstanding of what Gorsuch actually meant.

First, Gorsuch was not rejecting the possibility of overruling Roe v. Wade in particular or of overturning court cases generally. This is pretty clear from ths rest of his statement. After saying, “I would have walked out the door,” Gorsuch paused for a long moment before continuing: “That’s not what judges do.” So what, exactly, did Gorsuch mean here? What is it that “judges [don’t] do” and that would have prompted him to walk out on an interview with the President?

The answer is that Gorsuch is committed to rule of law, and that means that as a judge he is bound to only rule on the merits of the cases actually brought before him in light of the law and the relevant facts. To commit to the President–or to anyone–how he would rule on a hypothetical case that hasn’t even been brought yet is a flagrant violation of the judicial process that would have substituted politics for law. Gorsuch reacted so strongly not because he was defending Roe v. Wade, but because he was defending judicial process. In other words, it doesn’t matter which Supreme Court case Trump had asked about, the answer in any case would have been to “[walk] out the door.” You do not nominate anyone to the Supreme Court as a way of setting policy. You do it as a way of sustaining the Constitution. Therefore, Gorsuch’s reply here tells us absolutely nothing about how he would actually rule in a case involving Roe v. Wade other than that it would depend on the specifics of the case as it was actually argued before the Court.

Second, we still have every indication that Gorsuch is most likely an extremely pro-life nominee. The evidence for this comes from his book The Future of Assisted Suicide and Euthanasia. I haven’t read the book, but here are two quotes that I think reveal quite a lot about Gorsuch’s thinking in ways that are directly relevant to abortion. The first comes from a Vox article, I read Supreme Court nominee Neil Gorsuch’s book. It’s very revealing, and it sums up Gorsuch’s argument in the book:

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.”

Right off the bat, this is characteristically pro-life rhetoric. For all that they are derided as merely “anti-abortion,” the pro-life movement is united in opposition to abortion and euthanasia by a commitment to the idea that “human life is fundamentally and inherently valuable.” You simply never hear the pro-choice side use this kind of language.

In terms of logic, the key here is that “human life” is a broad category, and if it is broadened to include unborn human beings, then Gorsuch’s argument against legalized assisted suicide and euthanasia also applies to abortion. This is made clear in the second quote, this one from a New York Times article:

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.”

The real give-away for me here, again, is Gorsuch’s very broad language. When he talks about “fetus” and “person” we can infer basically nothing, but when he says “if…a fetus is considered a human life“, then we’re talking about language that is interesting in two regards. First, it is deliberately secular/scientific as opposed to philosophical/theological. This is characteristic of Gorsuch’s thinking which, according to a quote from another article at The Atlantic, relies on “secular moral theory” rather than the stereotypically religious grounds common to much of the pro-life movement. What’s more: once we’ve entered that secular/scientific realm, the question of whether or not a fetus counts as “a human life” has an unambiguous, objective, and absolutely conclusive answer: of course it is.

So let’s recap:

  1. Gorsuch’s comment about walking out the door if Trump had asked him to overrule Roe v. Wade was not a defense of Roe v. Wade. It was a defense of judicial process, and it tells us nothing one way or the other about Gorsuch’s views on abortion in general or Roe v. Wade in particular.
  2. Gorsuch’s book opposes legalziation of assisted suicide and euthanasia under an argument that he explicitly states would apply in abortion as well if… the fetus is considered a human life,” in ways that suggest (as science dictates) that this is in fact the case.

Taken together, I’d say that Gorsuch comes across as about the most unambiguously pro-life candidate that you could possibly hope for in someone who has not ruled on abortion cases or made explicit statements about the subject. It’s certainly not open-and-shut. He’s a smart person, and smart person and capable of all kinds of weird, circuitous, unexpected twists and turns in their thinking and philosophy. He  may indeed be pro-choice, but that’s not where I’d lay my money.

Final thought: I listened to parts of the confirmation hearing yesterday, and there was one exchange I have not been able to find (it was either from around 5:20 or around 8:40) when Gorsuch talked about the motivation for his euthanasia book. It came down to concern for the most vulnerable in society: the poor, the disabled, and minorities. Left unspoken was “the unborn,” but it fit so perfectly in that list–and with Gorsuch’s philosophy as I understand it thus far–that it almost didn’t need to be spoken.

 

The Perils of Assisted Suicide

St. Thomas Aquinas, who originated the Principle of Double Effect. (We'll get to that at the end.)
St. Thomas Aquinas, who originated the Principle of Double Effect. (We’ll get to that at the end.)

One of the things people don’t realize about the pro-life movement is that “pro-life” is more than a euphemism for “anti-abortion.” There is a coherent philosophical outlook that underlies both the opposition to abortion and, for example, the opposition to legalized physician-assisted suicide. In both cases, there is a combination of (1) a deep-rooted belief that each human life has value, regardless of the capacity of the person in question and (2) a concern for the dignity and rights of society’s most vulnerable.

It is true that most of the pro-life movement is focused on the abortion issue most of the time, but that’s entirely natural: there are roughly 1 million abortions every year. That’s currently the biggest issue. But the movement also opposes legalizing physician-assisted suicide, and a couple of articles do a good job of explaining why.

First, from the Federalist, there is My Mom Just Died Of Brain Cancer. Here’s Why She Opposed Assisted Suicide. The article, by Mary Karner, explains why her mother Dr. Maggie Karner “used her last days on Earth” to campaign against physician-assisted suicide. The root of this opposition stems from the pro-life philosophy that I already mentioned. In an op-ed, Maggie Karner wrote that:

My brain may be cancerous, but I still have lots to contribute to society as a strong woman, wife and mother while my family can daily learn the value of caring for me in my last days with compassion and dignity.

The idea that a person’s dependence can be a blessing is a crucial and vital aspect of genuine humanism. We are not only valuable when we are strong and capable. We are also valuable when we are weak and incapable, because it is then that we give others the opportunity to sacrifice and to serve. Dr. Maggie Karner was not in denial. She didn’t think that, despite her debilitating and terminal diagnosis, she could keep positively contributing to her community or her family. She knew that, eventually, she would not be able to do so. But she understood that even then, she still had a vital role to play in the interdependent web of human society. Mary Karner agrees:

I’m here to say that she was right. No matter how hard it was and still is. She was so right. And the greatest honor of my life was to care for my mom in her last days.

 

Maggie Karner made another point as well. She raised the specter of a slippery-slope:

How long will it be before the right to die quickly devolves into the duty to die? What does this mean for all who are elderly, or disabled, or just wondering if they’ve become a burden to the family?

The important thing with slippery-slope arguments is to test them. Is the slope really slippery? And that brings us to the second article. This one is from the National Review: Assisted Suicide Increases Other Suicides. Wesley J. Smith states his thesis clearly:

I believe that assisted suicide advocacy pushes suicide generally because it communicates the message that self-termination is an acceptable way to end one’s suffering.

And then he backs it up with data. A new study in the Southern Medical Journal states find that, when physician-assisted suicide is legalized, there is an associated hike in self-inflicted suicide. This finding really underscores the risk Dr. Maggie Karner warned about: physician-assisted suicide isn’t just about providing a merciful death to those with terminal conditions. It changes the way we look at suicide. We are, as Smith writes, “becoming a pro-suicide culture.” This is inevitable. Once solution is seen as a good thing in some cases, as a solution, it is impossible for the scope of problems to which suicide is the answer not to begin to increase. And as it does, suicide will subtly shift from a mercy killing on behalf of someone who is suffering to an obligation of the old and the sick.

Humane societies care for their vulnerable members. They do not grease the slide towards death and call it mercy.

Two final points.

The first is that the pro-life attitude towards the law is far more nuanced than most critics would realize. The conventional logic is that the pro-life movement wants to ban abortion (for example) in order to coerce women into having children. This is so obvious that it seems strange to even question it. And yet, that’s not actually the case at all. Making something illegal is in fact almost never first and foremost an attempt to coercively modify human behavior. The criminal justice system does not exist to control behavior, but to provide consequences. Neither our laws nor our law enforcement agencies are set up to (for example) coerce people into not stealing or raping or murdering, but rather to catch and punish those who do after the fact. If we get a deterrent effect from that: great. But if we were actually in the business of enforcing laws via coercion, we’d have to start by getting rid of civil liberties.

On the contrary, the pro-life movement–and social conservatives in general–understand that “the law has a pedagogical function.” (That’s Smith citing U.C. Irvine professor of psychiatry Aaron Kheriaty.) In other words, there is a feedback mechanism between law and morality. It is impossible to legislate morality and foolish or insidious to try, but it is equally foolish or insidious to pretend that morality does not influence the law, or that laws do not influence morality. The biggest problem with Roe v. Wade is not that it formally permitted abortion, but rather that by enshrining abortion as a Constitutional right (in the United States the Constitution is our secular scripture) it essentially sacralized it. In a nation where abortion has been legalized gradually through the democratic process, the idea of “choice” would make much more sense because the law would have organically reflected people’s changing beliefs and would therefore reflect the nuanced and complex nature of abortion as a moral situation. But in a country where the highest court in the land determines that our founding document view abortion as a fundamental and inalienable civil right, all such nuance and complexity is wiped away.

Similarly, legalizing physician-assisted suicide (especially using “rights” rhetoric and especially if the courts are heavily involved) , will profoundly change the moral view of suicide in our nation, and that change will not be neatly contained within the category of suicides legally carried out by a physician. That’s what the evidence already demonstrates.

The second is an important clarification. The pro-life position holds that suicide is usually immoral, but it does not mandate that a person must be kept alive by all means necessary. This is a common false-choice fallacy, and it is simply not true. First–speaking legally–the right to refuse medical treatment (including the right to have someone with legal authority refuse it on you behalf) is an ancient aspect of our common law tradition. Second–speaking morally–the pro-life movement generally recognizes the Principle of Double Effect. Read the article for the full details, but here is the Cliff Notes version: you can’t deliberately kill someone to ease their suffering, but you can give them potentially lethally doses of pain medication if your sincere intent is to relieve suffering and not to bring about their death. In other words, the pro-life opposition to intentionally killing sick people doesn’t mean you have to make them suffer unnecessarily to keep them alive.

Just thought I’d get that one clarified, since I’ve seen it misunderstood (intentionally or not) on such a regular basis.

More to Morality than Niceness?

800 - Morality Niceness

A friend on Facebook shared this comment. The idea behind it seems self-evident: shouldn’t you evaluate your actions with respect to others based on how they themselves perceive those actions? If you like vanilla more than chocolate, then it doesn’t make sense to give everyone vanilla. You should find out which they prefer themselves, and you should behave accordingly. Simple, right?

Well, no. It’s not always that simple. The reason that analogy works is precisely because taste really is subjective. But, unless you’re willing to buy into total moral relativism, then that analogy is not going to translate simply and easily from dishing out ice cream to much more complex issues ranging from helping people kill themselves (assisted suicide) to helping people mutilate themselves (see: Bodily Integrity Disorder).

By the way, I had to look up David G. McAfee (who wrote the original Tweet). If you did not know who he was, then the best way to introduce him is as a sidekick to the Four Horsemen of the Non-Apocalypse. Which is to say, he’s the newest generation of the New Atheist movement. I particularly enjoyed the titles of his books: Disproving Christianity and Other Secular Writings and Mom, Dad, I’m an Atheist: The Guide to Coming out as a Non-Believer. There are few things as endearing as the towering sense of certainty that accompanies precious young adulthood. Whether it’s fundamentalist Christians who know that they can prove God exists or fundamentalist atheists who know they can prove God doesn’t exist, you just kind of want to ruffle their hair and say, “That’s the spirit, Sport. Go get ’em.”

This clash between the directive to just “be nice” (which entails a kind of moral relativism) and the apparent callousness of traditional morality (which stems from moral objectivism or realism) is incredibly important. It constitutes an essential aspect of the clash between social conservatives and social liberals. Pick any one of several issues and you will find at root a conflict over moral relativism masquerading as a conflict over self-determination. One example is the right-to-die movement, which argues that denying legalized, physician-assisted suicide is a gross abridgment of the right of rational human beings to choose the timing, manner, and rationale of their own demise. The same sentiment pervades most of the sexual philosophy of modern liberalism: as long as people are consenting adults, what right have we to abridge their choices with either legal or moral condemnation?

The logic is strong and compelling because it taps into a bedrock principle of the philosophy that our nation was founded on. What is more American or more Enlightened than to staunchly defend the right of citizens to choose their own identities and destinies?

And yet, as even some liberals have started to intuit, this logic takes us in unintended directions. Damon Linker is one who has had the temerity to draw attention to this point. In “Yes, the Libertarian Moment has Arrived” he argued that “America clearly is becoming more libertarian — it’s just that the transformation is happening in morality and culture, not in economic, tax, and regulatory policy.” Linker traces this shift to Anthony Kennedy’s decision on Planned Parenthood v. Casey, in which he wrote that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the mystery of human life.” Scalia, as prescient as he is grumpy, “recognized immediately that such a libertarian principle created serious problems for morals legislation of any kind.”

The problem with Kennedy’s logic is that it has no limiting principle. And the problem with that is that it leads to places that make us uncomfortable. Which is why Linker is one of the few (maybe the only?) social liberal to publicly connect the dots between socially liberal positions that are in and socially liberal positions that are (so far) still very much out. This irritates his fellow liberals to no end, as he wrote about in “No, I’m not the Rick Santorum of punditry“:

Why, these readers wonder, do I continually highlight such trends as the acceptance of homosexuality and same-sex marriagepolyandry, the mainstreaming of porn, consensual brother-sister incest, and bestiality, while also insinuating that they’re all somehow connected? In doing so, aren’t I invoking the same kind of alarmist and fallacious slippery-slope arguments favored by social conservatives — and in particular by the wannabe savior and champion of the religious right Rick Santorum, who seemed to imply back in 2003 that legalizing same-sex marriage might lead to the acceptance of “man on dog” relationships?

Linker disavowed the slippery-slope argument, and this is reasonable. To the extent that the slippery slope argument functions as a rhetorical device to transfer disgust from bestiality to homosexuality it is morally and logically deficient. The two are in no way equivalent, the one does not lead to the other, and given those two facts sloppy conflation of the two leads to justifiable outrage that drowns out a more legitimate—and more subtle—argument. It’s not that gay marriage itself implies anything else on Linker’s list. It’s that they are all implied by a common cause.

To explain this common cause, Linker cites social psychologist Jonathan Haidt’s Moral Foundations Theory (MFT). According to this theory, there are six universal moral value-opposite pairs: care/harm, fairness/cheating, liberty/oppression, loyalty/betrayal, authority/subversion, and sanctity/degradation. Haidt has discovered that while conservatives in America incorporate all six pairs into their moral paradigms, liberals in America acknowledge exclusively the first three.

Linker focuses on just the first pair (care/harm), writing that in the West “within the past few decades… the concern for care/harm — with both care and harm defined exclusively in terms of individual preferences and desires — begun to drive out other moral principles.” As a result:

Outside of the relatively narrow sphere of the law, this shift isn’t taking the form of a slide down a slippery slope, as if the acceptance of homosexuality were causing or leading to the acceptance of other sexual behaviors that were once considered deviant. Rather, the public condemnation of all such behaviors is slowly fading away because of an underlying ethical shift that has transformed care/harm into the ultimate moral trump card.

The liberal paradigm, rooted in myopic attention to care/harm, is the common cause that leads to, for instance, acceptance of gay marriage and of group marriage. To the extent that gay marriage is accepted (legally and morally) on these grounds, it validates the care/harm paradigm and that validation (not gay marriage itself) will inevitably lead to group marriage. It is also vital to note that it is not just the emphasis on care/harm but also, as Linker pointed out, care/harm “defined exclusively in terms of individual preferences and desires.” In other words: while everyone is off debating about self-determination and individual human dignity, the actual payload of these arguments is to sneak moral relativism in while no one is paying attention.

So this is why McAfee’s quote matters so much. At first it seems like just a pedantic reformulation of the Golden Rule. But the point of Christ’s injunction was to broaden the scope of morality. Instead of behaving morally within our clan or tribe, our moral obligations became universal. That was the primary point he was making, as the following parable illustrates quite clearly. McAfee has not only missed the point, but he is using an apparently trivial twist to do something entirely different; he is redefining morality. The new formulation substitutes subjectivism and sentimentalism in place of moral realism.

The problem, for Linker at least, arises when that same paradigm leads not only to validating polyamory in group marriages (for example), but also extends to behaviors that still trigger to disgust in most people. Linker writers:

That’s why the recent 6,200-word New York magazine interview with a committed “zoophile” is so important — because it’s such a perfect example of this transformation and its practical implications. The piece expressed no concern about the subject’s moral degradation and in fact contained no moral judgments at all — except to denounce those who would make such judgments. And why is it wrong to judge a man harshly for having sex with a horse? Simply because, the interview clearly implied, it would be mean (and so harmful) to those who have such desires.

Which leads Linker to his most important question:

Don’t get me wrong: being nice is definitely a good thing. But is it the best thing? The highest thing? The thing that should override every other possible moral judgment? I’m not so sure.

Linker is in search of some kind of limiting principle. He understands (and so do most social liberals, which is why they get so testy about it) that within the new moral paradigm there isn’t one. The only thing that separates acceptance of homosexuality on the one hand and consensual sibling incest on the other hand is popularity. Which is to say, fashion. That’s it. There’s no substantive argument possible within the exclusive care/harm paradigm to admit the one but deny the other. And so social liberals are confronted with a stark question. Do they fully embrace the logic of their paradigm and concede that their own disgust at zoophilia, incest, and so forth are nothing more than newly exposed forms of bigotry? Or do they reject the logic of their moral paradigm and look elsewhere to arrest the unfolding progress of moral progressivism?

Euthanasia As Hedonism

Canticle for Leibowitz CoverThere’s a gripping scene near the end of one of my favorite books, Canticle for Leibowitz, where a priest tries to convince a mother not to kill herself and her daughter after they have received a probably lethal dose of radiation during an atomic war. The government has set up euthanasia festivals–looking for all the world like state fairs–where parents and their children can go to ride a carousel or a Ferris wheel before going to the final tent to end their lives. He begs and cajoles her not to go, but in the end is left to watch, powerless, as she takes her little girl’s hand and leads her toward the colorful tents, the delicious food, and the end of their lives.

Walter M. Miller, Jr (the author of Canticle), you will not be surprised to find out, was a Catholic. I am not a Catholic, but I have a deep love and admiration for the moral and intellectual courage of that tradition, and nowhere is that courage and sensitivity in starker display than in Catholic teachings about suffering and death. The Catholics understand, as so few in our modern age do, that suffering itself is not the measure of a life. They realize that, no matter how deceptively noble and sympathetic the arguments for euthanasia may be, in the end condoning suicide is indistinguishable from embracing shallow hedonism.

A heartbreaking news story brought this back to the forefront of my mind on Monday. Two brothers, aged 45, were killed by Belgian doctors at their request after finding out that they would go blind. The identical twins were born deaf, and they were unable to face the pain of never being able to see each other again. I have absolutely no condemnation for their decision, tragic as it might be, but I am deeply disappointed at the behavior of the doctors who ended their lives. 

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