Monday, February 13, 2017
New York Times (Feb. 7, 2017): Reading Between the Lines for a Nominee's Views on Abortion, by Adam Liptak:
Neil Gorsuch's 2006 book The Future of Assisted Suicide and Euthanasia (New Forum Books) may provide a window onto the nominee's views on abortion. In the book, Gorsuch canvasses the Supreme Court's abortion jurisprudence for clues about whether a right to assisted suicide exists. He concludes that it does not, because "human life is a good in itself."
The learned tome does not critique the Supreme Court's abortion jurisprudence per se and reveals nothing about where Gorsuch stands on Roe v. Wade. It likewise leaves unclear whether Gorsuch's perspective on human life would lead him to conclude that a fetus is a human life. In his 2006 confirmation hearing following his nomination to the federal bench, Gorsuch remarked that his personal views have no effect on his judicial work and that his writings defend existing law "'in most places.'"
Gorsuch does, however, acknowledge that jurists he respects hold views contrary to existing law. This is most notably true of his former employer Byron White, for whom Gorsuch was a law clerk in the early 1990s. In dissent in the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, White notoriously called for the overruling of Roe v. Wade:
However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.
White's analysis was mercilessly skewered in the concurrence of Justice John Paul Stevens, though the perennially judicious Stevens was careful to remark, "I have always had the highest respect for his views on this subject."
Perhaps more telling than Gorsuch's views on Roe v. Wade, which remain unknown, are his views on Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which The Future of Assisted Suicide and Euthanasia argues should be "read narrowly." Gorsuch objects to the use of the "flowery" language in the decision invoking "the mystery of life." Like White before him, who favored limiting, nay, overruling Roe, Gorsuch favors cabining Casey within the confines of a "stare decisis decision," in other words one that merely pays deference to settled law. But saying one is devoted to upholding settled law is not the same thing as affirming that a right should not have been declared fundamental in the first place. The possibility that Gorsuch might be tempted to channel Bryon White in saying so lies well within the realm of possibility.