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OPINION

Gorsuch v. Death, Inc.

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
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St. Augustine, who has not been nominated to the U.S. Supreme Court, made a straightforward argument against a right to suicide.

Neil Gorsuch, who has been nominated, makes a subtler argument against such a right.

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But Gorsuch's argument is not subtle enough for Sen. Dianne Feinstein, who fears the principle at its foundation may also form the foundation of an argument against abortion.

Feinstein is right to be fearful.

On the first day of Gorsuch's confirmation hearing, Feinstein quoted something Gorsuch wrote more than a decade ago about assisted suicide and euthanasia. She suggested it shed some light on how Gorsuch might rule on a challenge to Roe v. Wade, the case in which the Supreme Court declared a "right" to abortion.

"Judge Gorsuch has not had occasion to rule directly on a case involving Roe," Feinstein said. "However, his writings do raise questions. Specifically, he wrote that he believes there are no exceptions to the principle that, quote, 'the intentional taking of a human life by private persons is always wrong,' end quote."

Feinstein, apparently, does not accept this principle.

Given her insistence on quoting this statement by Gorsuch while she defended Roe, it is fair to conclude she believes that a legal system that recognizes that "the intentional taking of a human life by a private person is always wrong" would not recognize the right of an abortionist to take a human life in the womb.

Gorsuch explained this principle Feinstein fears in his 2006 book, "The Future of Assisted Suicide and Euthanasia." One of his reasons for writing this book, he said, was to outline "an argument for retaining current laws banning assisted suicide and euthanasia."

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"It is an argument," he wrote, "premised on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong."

In a chapter on the history of how suicide has been debated in Western Civilization, Gorsuch quoted St. Augustine.

"It is not without significance that in the holy canonical books, no divine precept or permission can be discovered which allows us to bring about our own death, either to obtain immortality or to avert some evil," he quoted from "The City of God." "On the contrary, we must understand the Law of God as forbidding us to do this, where it says, 'Thou shalt not kill.'"

But Gorsuch declined to base his argument against taking human life on a belief in God or God's law.

Even in citing the Declaration of Independence, he left the "Creator" out of it.

He adopted instead what he called a "secular moral theory."

"My argument, based on secular moral theory, is consistent with the common law and long-standing medical ethics," he wrote.

"I seek only to explain and defend an exceptionless moral norm against the intentional taking of human life by private persons," he said. "I begin by seeking to suggest that there are certain irreducible and non-instrumental human goods (and evils); I then proceed to argue that there is a moral imperative not to do intentional harm to such goods, and that such a rule would prohibit assisted suicide and euthanasia."

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Gorsuch argued that this understanding of human life is central to the Declaration of Independence, the government it initiated, and the 14th Amendment.

"[T]he whole purpose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths," he wrote.

"Perhaps the most profound indicium of the innate value of human life, however, lies in our respect for the idea of human equality," he wrote.

"The Fourteenth Amendment to the U.S. Constitution," he said, "guarantees the equal protection of the law to all persons."

"We treat people as worthy of equal respect," Gorsuch said, "because of their status as human beings and without regard to their looks, gender, race, creed, or any other incidental trait -- because, in the words of the Declaration of Independence, we hold it as 'self-evident' that 'all men (and women) are created equal' and enjoy 'certain unalienable Rights,' and 'that among these are Life.'"

Gorsuch is not St. Augustine. But he is a self-professed admirer of the late Justice Antonin Scalia and Scalia's doctrine of interpreting the Constitution according to the meaning invested in it by those who framed it.

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Gorsuch's belief that the both the Declaration and the 14th Amendment reflect the same understanding of human life that caused him to conclude that "the intentional taking of human life by private persons is always wrong" cannot be reconciled with Roe's determination that the Constitution created a right to take a human life.

Many innocent lives may now hinge on whether Justice Gorsuch acts on the court in keeping with this principle he championed as a private citizen.

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