Senators should question Gorsuch about views on 'right to die'
© Greg Nash

As senators question Judge Neil Gorsuch in confirmation hearings this week to fill Justice Scalia's seat on the Supreme Court, I can’t help but think about a patient who asked me to help her die.

She was old, tired and battling a host of medical conditions that would make the coming years difficult and burdensome. She wanted pills to end it all and preempt the misery that she anticipated. I told her I couldn’t comply with her request. Physician-assisted suicide was illegal in my state and it also wasn’t something I was comfortable doing as a doctor. But I reassured her that when her time came to die, I wouldn’t get in her way.

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My response might not satisfy those who view assisted suicide as one’s inherent right, but my patient was reassured. She knew that the care we would pursue would be proportionate and balanced. We talked about her preferences and about an advance directive. She left the clinic comforted.

 

As Judge Gorsuch prepares for his confirmation hearings before the Senate Judiciary Committee, I would ask him not to get in the way of patients like mine. Given his views expressed in his now best-selling The Future of Assisted Suicide and Euthanasia, would he get in the way of patients and families as they navigate the end of life?

While the book mostly contains arguments against assisted suicide and euthanasia — a position I share — its relevance to the confirmation hearings isn’t really about this contentious topic. Instead, its importance is about how his views will determine how we die.

In forcefully arguing against assisted suicide, he raises questions that undermine hard-won rights allowing patients and families to make heart-wrenching decisions about end-of-life care and pain management. Reversing decades of jurisprudence and the evolution of a societal consensus about the privacy rights of patients and families at the end of life, Judge Gorsuch seems to equate killing versus letting die.

For example, he characterized the Bouvia v. Superior Ct decision which allowed a competent patient to refuse a feeding tube as being akin to “euthanasia by omission.” Commenting upon a British case, Judge Gorsuch questioned a decision in which “…the court seemed to assume that a competent patient has a right to refuse care, even if in doing so it might evince an intent to die.”

In both of these cases, higher courts disagreed with his assessment. They permitted the removal of life-sustaining therapy when a competent patient made a choice based on their perceived quality of life.

Judge Gorsuch might view a patient’s ambivalence and withdrawal of consent for ongoing treatment as suicidal intent, but the courts he criticized did not. And that is the problem which should worry the Judiciary Committee. His views could condemn patients and families to burdensome care that they did not want.

Make no mistake about it, Judge Gorsuch is a brilliant, if wily jurist. He claims he is not a “vitalist” and accepts the right of competent adult patients to refuse life-sustaining therapy, when death is not sought.

But there is a rhetorical briar patch within which private choices at the end-of-life could get caught. The catch? There has to be respect for what he describes as the “inviolability of human life principle.” If one intends to end human life, this sacred principle is violated.

But end-of-life care is not so simple. Those of us who are a bit closer to the bedside know that there is an ambiguity of clinical intentions. Life in an ICU is more like a Shakespearean tragedy than a legal brief.

This is especially true when loved ones have to make decisions for incompetent patients at life’s end. Millions of families are confronted by this challenge each year in American hospitals.

On this front, Judge Gorsuch’s arguments are especially worrisome. He relitigates the rights of surrogates to make decisions for those they love, undermining the role of families. His views conflicts with laws to protect the rights of families, such as New York’s recently enacted Family Health Care Decisions Act.

My advice to the members of the Judiciary Committee who will be questioning Judge Gorsuch is this: skip the first nine chapters of his book and read the last one, “Towards a Consistent End-of-Life Ethics: The ‘Right to Refuse’ Care for Competent and Incompetent Patients.” His choice to put “Right to Refuse” in quotations is revealing. Judge Gorsuch questions this fundamental and well-ensconced feature of American medical practice. When he sits before the Judiciary Committee, be sure to question him on this topic of importance to all of us who will someday die and need compassion and wisdom at life’s end.

Joseph J. Fins, MD, MACP is the E. William Davis, Jr. M.D. professor of medical ethics at Weill Cornell Medicine and the Solomon Center Distinguished Scholar in Medicine, Bioethics and the Law at Yale Law School. He is the author of A Palliative Ethic of Care: Clinical Wisdom at Life’s End and Rights Come to Mind: Brain Injury, Ethics and the Struggle for Consciousness. He is a fellow ambassador of the New York Academy of Medicine.


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