Neil Gorsuch has a problem with compassionate doctors

Carol has terminal cancer, and her options are grim. She can either endure severe pain in order to stay alert until the end. Or she can treat the pain and, because of the medication’s side-effects, linger in a mental fog until the disease overcomes her. Carol does not like these options, and she asks her doctor for a medicine she can take to end her life on her own terms. Her doctor agrees, and writes a prescription for barbiturates.

In writing the prescription, does Carol’s doctor intend to kill her? No, he does not. Think of it this way. If Carol decides later not to take the drugs, has her doctor’s intent necessarily been thwarted? No, it hasn’t. In this case, as in standard cases of physician aid in dying, Carol’s doctor wants only to give her a new option. What Carol does with that option is entirely up to her.

But Neil Gorsuch, President Trump’s nominee to the Supreme Court, insists that Carol’s doctor “necessarily” intends to kill her. Gorsuch repeats this many times in his scholarly book on physician-assisted dying. And since Gorsuch thinks it is both legally and morally wrong to kill another intentionally, he thinks laws prohibiting Carol’s doctor’s assistance are constitutional and correct. If Gorsuch had his way, Carol would not be allowed the dignified exit she desires.

At one rare point in his book, Gorsuch considers the possibility that physician-assisted dying is permissible because the patient is in control, not the doctor. But he refuses to engage this point on its merits. Instead, he accuses those who make it of having “tactical,” pro-euthanasia motives. Euthanasia, by definition, does involve an intent to kill, and very many proponents of physician-assisted dying are against it for that reason.

It is hard to know why Gorsuch insists so strongly that Carol’s doctor intends to kill her. For in many other cases, Gorsuch goes out of his way to explain how an individual who contributes to another’s death can do so without intending to kill. He describes a pharmacist who fills a prescription for a customer who announces he wants the pills in order to commit suicide. In support of the pharmacist, Gorsuch claims that he is not liable for the customer’s death if, instead of intending to help kill, the pharmacist simply intends “to fulfill a professional duty.”

Gorsuch is equally supportive of the physician who agrees to withdraw life-sustaining treatment from a patient who, rather than die in the near future, wishes to die now in order to speed up a life insurance payout to his family. Even in this case, where the patient’s stated goal is to die, Gorsuch maintains that the doctor can assist without intending to cause that death.

And yet when it comes to a case like Carol’s, Gorsuch insists that the physician’s intent is always to kill the patient. This bald and undefended assertion stands in sharp contrast to the exacting analysis of intention that he applies in the other cases, and it raises concerns about Gorsuch’s own underlying motives.

Indeed, in light of his discussion of the U.S. Supreme Court case Tison v. Arizona, one cannot help but conclude that Gorsuch has some specific and unstated problem with compassionate doctors.

The Tison case involved two brothers who planned a successful prison break for their father, who was serving a life sentence for killing a guard in a previous escape attempt. The brothers broke into the prison with an arsenal of lethal weapons, armed their father and his cellmate (also a convicted murderer), and locked the prison guards in a supply closet. Once on the lam, the group carjacked a family of four and the brothers watched as their father and his cellmate killed the family.

The Arizona Supreme Court ordered the brothers’ execution on the ground that they had intended the deaths of the family. But the U.S. Supreme Court overturned that order, holding that even though at least one of the brothers admitted he had been prepared to kill, the Arizona court wrongly ignored the essential distinction between intending the victims’ deaths and merely anticipating or foreseeing them. Gorsuch thinks the U.S. Supreme Court got it exactly right.

Of course Gorsuch doesn’t think the Tison brothers are innocent. His point is only that it has not been shown they intended those four deaths, and that this fact is essential to the case’s proper legal adjudication. And yet Gorsuch denies compassionate doctors an equally careful analysis of their intentions when they give dying patients the option of an earlier, dignified death. Someone should ask him why.

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