By Matt Hadro
Supreme Court nominee Neil Gorsuch made a crucial ethical distinction in his response to questions about doctor-prescribed suicide during his confirmation hearing on Wednesday, said one ethicist.
When asked what his views were on end-of-life care in the case of a terminal patient enduring unbearable pain, Gorsuch replied that “anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death. Not intentionally, but knowingly. I drew the line between intent and knowingly.”
This is an important distinction, said Edward Furton Ph.D., director of publications and an ethicist at the National Catholic Bioethics Center. He told CNA that the situation presents the case of “double-effect,” where proper steps taken to alleviate a patient’s pain may have the side effect of causing their death, but are permissible when certain conditions are met.
“You’ve got a good intention, the action you’re doing is good – in this case, it’s alleviating the pain with appropriate amounts of medication,” he explained, emphasizing that the dosage of pain medication may never be lethal and should not render the patient unconscious except when “absolutely necessary.”
“You’ve got a side effect, which is not intended, but is foreseen. It is going to happen, but you don’t want it to happen, you’re doing your action for another reason. And there is really no other route to alleviate the pain. So this is perfectly appropriate, it makes good sense,” Furton said.
Gorsuch, a judge on the Tenth U.S. Circuit Court of Appeals, faced his third day of questioning before the Senate Judiciary Committee on Wednesday as he is considered for confirmation to replace the late Justice Antonin Scalia on the Supreme Court.
He wrote a book in 2006 on “The Future of Assisted Suicide and Euthanasia.” Gorsuch explored various arguments made in favor of doctor-prescribed suicide and euthanasia before offering his own observations and opinions.
The book “was my doctoral dissertation, essentially,” he told the Senate Judiciary Committee on Wednesday. It was written “in my capacity as a commentator” and not as a judge, he clarified. The book was published the same year he was nominated and confirmed to the Tenth U.S. Circuit Court of Appeals.
He argued in the book that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” Regarding doctor-prescribed suicide, he upheld laws prohibiting it, basing his argument upon “secular moral theory.”
Asked by Sen. John Kennedy (R-La.) to briefly discuss his book, Gorsuch suggested that doctor-prescribed suicide could pose a significant threat “to the least amongst us – the vulnerable, the elderly, the disabled.”
It does this by becoming a cheap end-of-life option offered to vulnerable people, he said. “I do know that when you have a more expensive option and a cheaper option, those who can’t afford the more expensive option tend to get thrust into the cheaper option.”
“It’s a long book. It’s complicated. And I do not profess to have the right, final, or complete answer,” he admitted. “I hoped, at most, to contribute to a discussion on an unanswered social question where all people – and I do think all people – have a good faith interest in trying to reach some consensus socially on it.”
Currently, doctor-prescribed suicide is legal in six states and in the District of Columbia, with some 25 states to consider legalizing it this year.
Sen. Dianne Feinstein (D-Calif.) pressed Gorsuch on the matter on Wednesday, citing California’s End of Life Option Act that legalized the procedure in the state.
“I, in my life, have seen people die horrible deaths – family, of cancer – when there was no hope. And my father, begging me, ‘stop this Diane, I’m dying’,” she explained. “And my father was a professor of surgery.”
“And the suffering becomes so pronounced – I just went through this with a close friend – that this is real. And it’s very hard,” she continued, asking him what he thought of California’s law.
Gorsuch, speaking in his personal capacity, said that for some terminal patients, “at some point, you want to be left alone. Enough with the poking and the prodding. ‘I want to go home and die in my own bed in the arms of my family’.”
“And the Supreme Court recognized in Cruzan” – a 1990 decision on an end-of-life case – “that that’s a right in common law, to be free from assault and battery, effectively. And assumed that there was a Constitutional dimension to that. I agree.”
Gorsuch added that the matter of a terminal, suffering patient foregoing treatment was a personal one for him.
“Your father, we’ve all been through it with family. My heart goes out to you. It does. And I’ve been there with my dad. And others,” he told Feinstein.
Speaking as an ethicist, Furton clarified that in end-of-life cases, pain management may certainly be used but should never be an overdose and should not render the patient unconscious except in extraordinary circumstances.
Pain medication should be “measured, so that it matches the pain that the patient is experiencing,” he said.
“You can’t just give them a massive dose, or something like that,” he said, as “it would bring about their death in a way that was not measured and not connected to a proper intention which is to alleviate the pain.”
And medication should not induce unconsciousness, except in extraordinary cases, he insisted.
“Another important element is that the loss of consciousness in a person who is dying is very significant, and shouldn’t happen unless it’s absolutely necessary, because we should meet our Maker alert and in a prayerful way,” he added.
Furton praised Gorsuch’s knowledge and treatment of the matter as someone who “has obviously thought about these issues very carefully.”
“So I think we should be happy that he has such a strong sense of where to draw the line in a case such as this, where you’ve got a person with intractable pain and needs to have it remedied,” Furton said.
“He understands that that is not intentionally killing somebody. It’s not euthanasia, it’s not physician-assisted suicide. A lot of people don’t understand the difference between those two, so it’s good that he does because he’s obviously going to be a man of considerable power and importance in the area of law.”