U.S. Supreme Court confirmation hearings for Judge Neil Gorsuch begin on March 20. When questions are posed on abortion, conflicts of interest and deference to administrative agencies, he will avoid direct “litmus test” answers and decline to prejudge hypothetical cases. He will seek to establish his competence and character as reflected in his deep values.
The sanctity of life is a deep value for Judge Gorsuch. In his thorough, well-balanced book, “ The Future of Assisted Suicide and Euthanasia,” he underscored that “[all] human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” While opposed to assisted suicide, he provides a neutral review of debates on assisted suicide and euthanasia from Plato through the Nazis to Supreme Court decisions. But he avoids war and capital punishment that “raise unique questions all their own.” He also avoids the most frequent means of American suicide: guns. How does the sanctity of life ethic apply to our gun suicide epidemic?
While gun homicide rates have gradually declined in recent years, annual gun suicides hover at about 20,000 per year. Nationally, two-thirds of gun deaths are suicides. In Maine, gun suicides are nine times as frequent as gun homicides. The means used for suicide matters. Unlike other methods of killing yourself, a gun is easy to use, quick and usually effective. Unlike drugs, razors or other means, a bullet rarely allows reconsideration or medical intervention. No forethought is necessary; a fleeting moment of despair is enough. Guns are by far the most frequently employed means of suicide.
Research shows that a handgun in your home increases the risk that a family member will commit suicide. State suicide rates correlate more closely with the level of firearm ownership than with variables such as rural/urban balance, unemployment, race, age, gender or emotional state.
Gorsuch criticizes the rationale for assisting suicide that rests on “the theory of moral autonomy and its message of individualism.” Those arguments are akin to those heard in Second Amendment dialogues. Where there is a strong gun culture, it is not uncommon for “Uncle Joe” to shoot himself. The local community may respect his right to make that choice. But serious harm falls on the suicide victim’s family, so Judge Gorsuch rejects the “assisting autonomy” justification, invoking Thomas Jefferson’s focus on family harm. My mom’s sister, a World War II nurse who suffered from post-traumatic stress disorder, shot herself in 1949. In 1965, when her twin sister shot herself, my 9-year-old cousin discovered the body. Such traumatic nightmares persist for many families of gun suicides.
In his book, Judge Gorsuch argues that assisting or facilitating a suicide should be considered illegal, except when end-of-life medical directives are clear. The assistant is an “accessory before the fact” for the death and resulting family trauma. Thus, accessory liability should attach to a gun owner who loans a pistol to her suicidal friend. This argument also is applied to unsecured household guns. Should the law require disclosure of the suicide risk to a family with an unsecured household gun? (Some sellers have initiated voluntary disclosure.) It could be argued that government actions, including the 2008 Heller and 2010 McDonald Supreme Court decisions, facilitate the gun suicide epidemic by fostering guns in the home. The 5-4 Heller decision effectively edited out the Second Amendment’s militia clause.
This judicial law-making approach to the constitutional text varies from Judge Gorsuch’s method. He has underscored that his mentor, Justice Byron White, “was selected not because of partisan ideology, but because of his integrity, accomplishment and life experience. Justice White’s subsequent tenure on the bench was characterized by an utter indifference to partisan agendas. … [M]any on both the left and right grudgingly came to respect the justice that they could never take for granted and whose vote they had to win in each and every case with their best legal arguments.”
We can hope that a Justice Gorsuch will follow Justice White — as well as justices Earl Warren, John Paul Stevens and David Souter — and avoid partisan agendas. At the confirmation hearings, he should be asked about the hard facts of assisted suicide. His book concluded that “[f]ar from definitively resolving the assisted suicide issue … the court’s decisions seem to assure that the debate over assisted suicide and euthanasia is not yet over — and may have only begun.”
In some areas, such as the gun suicide epidemic, we can’t take Neil Gorsuch for granted.
Peter Sly is a Brooklin attorney, and he is the former executive director of the Conference of Western Attorneys General.