In this post, I should like to try something that I very rarely do. I want to think out loud. For most of my life, I have worked in my head, not putting things on paper or on a computer until I have them so sorted out in my thoughts that it is, as Kant would put it, more a pleasure than a labor actually to write down what I am thinking. In this case however I want to explore some ideas that I have not fully thought through. The principal obstacle I face to thinking them through is that I do not have any of the expert knowledge in Constitutional Law that would be required, and my son, Tobias, who does have that sort of expert knowledge, is busy zoom teaching several courses at the law school of the University of Pennsylvania, a task which as he construes it is enormously time-consuming (before beginning his two sections of constitutional law, which together enroll something like 85 students, he conducted a one half hour interview with each of the students!)
For much of my adult life, I and other progressive Americans
have looked to the Supreme Court for protections that states or the federal
legislature were unwilling to enact into law. Let me say something about three
of these areas: reproductive rights, healthcare, and voting rights. In each of
these three areas, hard-won freedoms and protections are now gravely threatened
by the almost certain prospect of a six – three conservative majority on the
Supreme Court. Many people have speculated about the possibility of expanding
the court to 13 members to create a solid progressive majority of seven
justices, and I have enthusiastically supported the idea on this blog. But it
occurs to me that perhaps there is an alternative.
Suppose the Democrats take the presidency and the Senate and
immediately abolished the filibuster, giving them the legislative power to enact
virtually anything that does not violate the Constitution. It should then be
possible, I think (this is where my ignorance of constitutional law may mislead
me), to write into federal law the right to have an abortion. This would be
secured, not by attempting to find this right implicitly in the Constitution,
but rather legislatively. The same thing, I think, could be done to protect
voting rights, and it ought to be possible to write a federal law that protects
individuals with pre-existing conditions, and expands Medicare and Medicaid,
and in one way or another gives everyone in the United States guaranteed
healthcare.
My general amateur understanding is that for decades now,
indeed for generations, liberals have looked to the courts to give them what
they did not have the legislative power to achieve in the Congress. But this
may be the moment when finally they can achieve in Congress what we need them
to achieve and to do so, furthermore, without twisting and turning to find something
in the Constitution or in Supreme Court precedents that can be put to a use for
which it was not originally intended. I cannot for the life of me see how a
conservative majority could strike down such legislation as in conflict with
constitutionally mandated rights, and if they were to attempt to do so, then
might be the time to expand the court.
I would be very interested in hearing from any of my readers
who have the kind of knowledge that I lack to tell me whether what I am proposing
here is in fact constitutionally possible.
27 comments:
I cannot for the life of me see how a conservative majority could strike down such legislation as in conflict with constitutionally mandated rights
Professor, I admire you for your wisdom, yet you write something like this that is so naive. It would be like saying, "After Mitch McConnell and Lindsey Graham said in February 2016 that it would be wholly improper for the Senate to consider any presidential nomination to the Supreme Court during the last year of the president's term, I cannot for the life of me see how they could now hold hearings on and potentially vote on President Trump's nomination for a replacement of Justice Ginsburg."
The real threat is that the gang of five extends personhood from conception. Merely passing a law without limiting jurisdiction would be futile and limiting jurisdiction has its own issues.
It would be useful to not think in terms of 11 or 13 which would look petty and leave an opening. There needs to be a general reordering of the judiciary: Expand the District court judges, expand the Appeals Courts to at least 15 and the judges on them, expand the Supremes to 15 or (better) 17 which would make further expansion dificult.
Use that as leverage for some constitutional amendments or a constitutional convention.
Prof. Wolff,
As an attorney who has practiced law for 40 years, and who has a more than passing acquaintance with constitutional law issues (I am currently litigating 3 major 1st Amendment cases, one in Michigan federal court, which as of two weeks ago is on appeal in the 6th Circuit Court of Appeals, and two in New Jersey federal court, where I am admitted pro hac vice) I will offer my opinion on what you propose. Taking the issue of abortion first, Justice Blackmun’s decision sustaining the right of a woman to obtain an abortion through the 2nd trimester was based in large part (but not exclusively) on the right to privacy found to exist under the 4th Amendment (which, on its face, says nothing about privacy, but deals with search warrants and probable cause). As a commenter responding to one of my comments on the previous post correctly points out, the right of privacy was interpolated in a decision by Justice Douglas, Griswold v. Connecticut, where the court majority held that a Connecticut law which made it illegal to sell contraceptives – not just to minors, but to anyone – violated the right to privacy which Douglas stated exists in the “penumbra” of the 4th Amendment, i.e., although the right is not explicitly stated the 4th Amendment, it is within the spirit of the scope of protection provided by the Amendment. J. Douglas’ invocation of a “penumbra” of rights was scoffed at as making rights up out of whole cloth that are not explicitly expressed in the Constitution.
J. Blackmun relied on the right of privacy and the right of substantive due process under the 1 J. Blackmun relied on the right of privacy and the right of substantive due process under the 14th Amendment. The latter doctrine is a rarely invoked legal principle because it is somewhat vague and amorphous. The idea is that there are certain fundamental rights which are so basic that they are protected by the Constitution without the need for them to be explicitly expressed, and the curtailment of which by a state would be arbitrary and capricious. For example, could a state pass a law which stated that no citizens of the state, men or woman, could dye their hair purple. Most people would say of course not, that is a personal right which I have to exercise without the state’s permission and which the state cannot infringe on. But where in the Constitution is such a right protected? It is implicitly protected by substantive due process under the 14th Amendment. The problem with relying on substantive due process (which was the primary source of Justice Kennedy’s decision protecting gay marriage) is that its scope is so amorphous that it can lead to judicial legislating. In Roe v. Wade, the two dissenters, Justices White and Rehnquist, argued the decision, aside from relying on “penumbras” and the amorphous substantiave due process, trenched on the right of states to exercise their traditional common law police powers, pursuant to which states have the right to pass legislation aimed at protecting the health and social welfare of their citizens, without interference by the federal government. So, for example, if a state wanted to pass its own law protecting a woman’s right to choose, the Supreme Court could not interfere and rule that such a statute was unconstitutional because, e.g., the state’s autonomy in this regard was protected by the 9th (rights in enumerated in the Constitution do not deny rights retained by the people) and 10th Amendments (rights not delegated to the U.S., nor prohibited to the States are reserved to the States). (Continued in the next comment.)
MS
(I have taken the liberty of extending my comment, since Prof. Wolff has asked for a knowledgeable and complete answer.)
If a Supreme Court composed of 6 conservative and 3 justices were faced with the constitutionality of Roe v. Wade, and were determined to overturn it, they could say such things as that the “penumbra” doctrine is silly and no longer defensible; substantive due process is too amorphous and we refuse to recognize it (but could a state make it illegal to have purple hair?), and more importantly, by making it unlawful for a state to criminalize abortion trenches on the states’ rights under the 9th and 10th Amendments. In that case, the right to choose would only be protected in those states that enacted legislation protecting it, but would not be protected in those states that chose to criminalize it.
So, how would a federal statute which guaranteed a woman’s right to choose in every state and prohibited any state from criminalizing it fare before such a Supreme Court? It would likely strike it down as unconstitutional, violating the 9th and 10th Amendment rights of those states that prefer to criminalize it. Commenter aaii raises another possibility, that the Court could go even further and hold that embryos are persons under the 14th Amendment and that therefore no states could grant women a right to choose. I do not foresee this as happening, since such a claims involves religious/medical views over which there is sufficient disagreement that the Court would itself be accused of violating the 9th and 10th Amendment rights of citizens in states who disagree.
MS
When I wrote in a recent comment that it's necessary to break eggs, I meant that fundamental changes in our government and political process must be made. If Democrats were to legislate a right to abortion, Republicans would just un-legislate that right when back in the majority. If Democrats expand the courts, Republicans will further expand the courts. Until the root problems are addressed, there will be no winning at this game.
Addressing root problems means confronting attitudes like "Small incremental improvements are the best we can hope for", which I reject out of hand.
We who care about future generations and who view our current trajectory as unsustainable need to stop limiting our thinking to short-term tactics, such as you outlined in your post the other day (electing Biden, expanding the courts, etc), and start thinking long-term strategy.
Long-term strategy means acknowledging that we are not going to make meaningful, lasting changes in society through minor reforms, and that the current pace of climate change does not permit us the luxury enjoyed by past generations of incrementally approaching over a protracted period of decades, or centuries, the kinds of changes that are necessary.
We need to acknowledge several things. The first is that the Democratic Party are obstacles, not allies, in our efforts to make the changes required. (By Democratic Party I mean people who make money as Democrats or working for Democrats, not people who just tend to vote for Democrats.)
The second is since we simply cannot make the necessary changes in the timeframe required within the constraints of our government as it is currently constructed, we need to acknowledge that just replacing some of the current officials with a different group will not be sufficient. We need to change the Constitution. The Founders never expected that the Constitution as originally ratified would be the final document for all time.
And we need a new political party to be able to accomplish that because the Democrats (like the Republicans) will block all efforts toward those ends so long as they retain any power. I know people roll their eyes on hearing anything about third-party politics, but the fact is that the original Republican Party had taken control of the House and put a president into the White House within 6 years of its founding. Progressives will never be able to wield the same influence with the Democratic leadership as deep-pocket donors like Bloomberg and like the financial services, telecom, pharma, and fossil fuels industries. Our only power comes from our ability to deny them our votes. If our conclusion at each election is that we have no choice but to vote for the national political party farthest to the left that has a realistic chance of winning national elections, which of course means the Democratic Party, we doom ourselves to failure.
One other point: We need to stop treating electoral politics as if they are the sole vehicle available to us today for achieving major political and social change. This is why I keep coming back to the need to turn off the MSNBCs and the like and get people to start thinking about what workers in our history were able to accomplish when they realized how powerful they were when acting in unison. Voting was not by itself enough to end child labor and guarantee minimum wages and the barest minimums of workplace safety regulations. It took workers recognizing that they are the essential ingredient in the workplace—that factories cannot operate without workers to run the machines and stores cannot operate without clerks to stock the shelves and sell the goods—and their being willing to shut down the operations of their workplaces in order to get the changes they demanded.
Eric,
With all due respect, you do not know what you are talking about. What you are calling for is a full-fledged revolution to overturn the Constitution, and that is not going to happen in this country, and any effort to do so will only result in bloodshed and long prison terms. Braking eggs will only result in a lot of broken heads, and they will by your and your compatriots’ heads. Check out a history of the Weathermen.
MS
MS,
I wonder if you've read Corey Brettschneider's "Gorsuch, Abortion and the Concept of Personhood" published in the New York Times and what you might think of it.
@Unknown, I did not call for overturning the Constitution. I said we need to change it.
Wrt the bloodshed and broken heads you speak of, which I did not call for, what do you think will happen if we continue to respond to climate change in the way we have thus far?
David,
Thank you for referring me to the NYT’s article discussing now J. Gorsuch’s views regarding constitutional personhood. I have just read it and does raise substantial reason to be concerned.
First, I was struck by the fallacy of his criticism of legislation supporting assisted suicide. During the 1980s, I was active in a group of legislators and attorneys in Michigan to pass legislation allowing for assisted suicide. (You will recall that the country’s principal proponent of such a right was Dr. Kevorkian, who was represented by Geoffrey Fieger, one of Michigan’s most prominent attorneys, then and now.) We drafted a very detailed statute with numerous guidelines to prevent individuals from availing themselves of its use if they were depressed or if their medical diagnosis was not certain. I believed that the right to assisted suicide was on of those rights protected by substantive due process under the 14th Amendment. Unfortunately, the Supreme Court disagreed in Washington v. Glucksberg, one of the decisions I believe that J. Ginsburg, concurring, got wrong. But Gorsuch’s assertion in the article that assisted suicide would “violate the 14th Amendment’s guarantee of equal protection. Such a law would treat ‘the lives of different persons quite differently’ by prohibiting the murder of the healthy while allowing the killing of the sick,” is just rubbish. Assisted suicide is entirely voluntary – no state has proposed making it compulsory of those whose lives have been deemed spent and no longer useful.
The fact that Gorsuch got assisted suicide so wrong does cause me to be concerned regarding his notion of a “constitutional person” which might reach back into the womb and protect a fetus. The notion of rights protected by “natural law,” a view held by J. Thomas, is, in my opinion an antiquated doctrine from the Age of Enlightenment that should have no place in American jurisprudence. The question of when human sentient life begins is, in my estimation, not amenable to scientific determination. It is essentially a religious question, and to rule as a matter of law that every fetus is a person protected by the 14th Amendment violates the 1st Amendment separation of church and state.
MS
Eric,
I apologize if I have come across to you as patronizing, insensitive and/or unsympathetic to your complaints about the system and your frustration with its inability to remedy what you regard as threats to the world’s well-being, such as climate change. But I do not believe you appreciate the strength of the forces you are up against, and their ruthlessness. That is not to say that you should give up and not follow your ideals. But your ideals are not enough to succeed. You have to learn about the forces that oppose you and how they will oppose you. Your ideals mean nothing to them. You indicate that I mischaracterized your objective, that you are not calling for overturning the Constitution, but only parts of it. You believe that amending parts of the Constitution will solve some of the problems. In this you are misguided. First, it is extremely difficult to amend the Constitution. Second, what would you amend – would you want to add an amendment requiring the federal government to take measures to address climate change? You would have quite a fight on your hands trying to get such an amendment passed. And what measures would you propose in the amendment?
I am not oblivious to the threat which climate change presents both to the U.S. and to the world generally. The world is most likely going to see famines, natural disasters, flooded coastal cities, etc., etc., and it may very well be too late to prevent or mitigate these impending disasters. They are spelled out in frightening detail in David Wallace-Wells’ “The Uninhabitable Earth.” But trying to amend the Constitution is not the way to prevent this catastrophe. I assume you are aware of the lawsuit that a group of teenagers in Washington filed in federal court, arguing that under the due process clause of the 5th Amendment, the failure of the U.S. government to address climate change seriously violated their right to life and the pursuit of happiness. I was impressed by their ingenuity, but was not optimistic that the strategy would work. They met with initial success when the trial court denied the defendant’s motion to dismiss and set the lawsuit for trial. On appeal, however the 9th Circuit Court of Appeals (probably the most progressive and liberal circuit court in the U.S.) dismissed the lawsuit for lack of standing (a jurisprudential doctrine with which I am all too familiar, because it was the basis for dismissing a major lawsuit I took to the Michigan Supreme Court as a young attorney in 1983, and has been the most disappointing decision of my legal career). In the opening paragraph of the decision, Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), Judge Hurwitz wrote for a 2 to 1 majority:
(Continued)
MS
“In the mid-1960’s, a popular song warned that were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.
The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek – an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2.’ Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”
If you wish to seriously take on this fight, then you are going to have to dedicate yourself to learning how the strings of government operate. They are very complicated and formidable. You may even want to consider obtaining a law degree, so you can learn the legal axioms and theorems that determine policy. It will be hard work, and you will meet with disappointment, with perhaps moderate success from time to time. But you are not going to win the fight by threatening revolution, or demanding that the powers that be respect your ideals, and that they should feel guilty if they do not. Such pleas will fall on deaf ears.
MS
'I cannot for the life of me see how a conservative majority could strike down such legislation as in conflict with constitutionally mandated rights ....'
You're losing it, old man. You can't see that such a heinous piece of legislation conflicts with Section 1 of the 14th Amendment? (Or is your ignorance of Constitutional law so severe you are unaware of this amendment?) '(N)or shall any state deprive any person of life ....' As does Roe. The organism developing in a woman's womb is fully, genetically human from the moment of his/her conception: follow the science, as you people are so fond of saying. As such, he/she is endowed with all the inalienable rights enshrined in our glorious Constitution, which SCOTUS Justices are sworn to uphold. Time to go back to your Kantian methodology.
When abortion is no longer a right guaranteed by the constitution, it will, as noted above, will become a right guaranteed by state law. Long before Roe, there was a clergy group that arranged for women needing an abortion to travel to where one could be obtained. National women’s groups will, upon news of the decision, will re-invent the wheel, putting in place the infrastructure to get women from where they are, to where they need to be.
RFGA, “Ph.d.”
You do not know what the f**k your are talking about. The Supreme Court has never held, and in fact in Roe v. Wade rejected, the proposition that a fetus prior to the second trimester is a “person” under the 14th Amendment. That is the issue David raised by referring me to the article about Gorsuch’s possible theory of constitutional personhood. Until Gorsuch and his colleagues so hold, a fetus in the 1st and 2nd trimesters is not a person under the 14th Amendment. If the law were otherwise, Roe v.Wade would never have won a majority vote of the Supreme Court, and it was approved 7-2.
As far as the sciences indicate, no physician, neurologist or anatomist of any prominence has stated that a fetus is a fully sentient person or human being. And your insults are both misdirected and uncalled for.
MS
You write: "...liberals have looked to the courts to give them what they did not have the legislative power to achieve in the Congress." The cynic in me would characterize liberals more harshly: "liberals have looked to the courts to give them cover given that they have zero desire to pass progressive legislation even if they could." And this is due to the fact that political parties represent capital, not ordinary citizens.
Further, from the glass is half empty side of things, I agree with Jeffrey St. Clair when he says:
"I keep hearing about the “legitimacy crisis” that will engulf the Supreme Court if the Senate moves forward with Trump’s expected nomination. Yet when did the institution that rendered Dred Scott (1857), Plessy v. Ferguson (1896), Korematsu (1944), Bowers v. Hardwick, upholding Georgia’s sodomy statute (1986) Bush v. Gore (2000), Exxon Shipping v. Baker, revoking punitive damages for Exxon Valdez wreck (2008) and Citizens United (2010) acquire this glittering aura of legitimacy?"
Jerry Fresia,
Jeffrey St. Clair’s litany of bad decisions ignores the fact that each of these decisions was eventually overturned. It may have taken longer than he or others would have liked, but, regardless, they were overturned. In this world, I believe the most we can hope for in an institution is that it ultimately admits it made a mistake.
Regarding his question, when did the Supreme Court “acquire this glittering aura of legitimacy,” I would simply quote Justice Robert Jackson: (who served as the United States’ chief prosecutor at the Nuremburg trials) “We are not final because we are infallible; we are infallible because we are final.”
MS
I too have to admit I made a mistake. The first four have been overturned or repudiated. The last three have not, and clearly the Bush v. Gore decision cannot be reversed. But Public Citizen could eventually be overturned – and probably would have been had Hillary Clinton won the election and Merrick Garland had been appointed to the Supreme Court. Aside from all this, I don’t understand people expecting perfection from their fellow mortals, simply because they hold public office.
MS
Unknown:
Citizens United has been not been overturned, in large part, because it accomplishes what all the other decisions accomplished (and which gave away the game) in a new and improved fashion: state assistance in the extraction of wealth and control over those exploited.
I give more weight to the structural imperatives of capitalism than I do volunteerism. I do not think our institutions admit mistakes. They are not people. They simply have interests and, of course, the political game is about calculation. So at times, especially when the Soviet Union existed, the new realities of capital, particularly in light of militant-bottom up activism, were to cede ground to workers, activists, and reformers - but always prepared, were they, to take it back when possible and if need be. With regard to more recent calculations, and again in the face of mounting pressure from the exploited, capital didn't block women, minorities, gays, etc to become CEOs, boxers, combat troops, and even presidents as long as they bought the ideology, the division of labor, labor power as commodity, and life as accumulation. Not long ago, an economic study by economists at Harvard and Princeton published a study which claimed that 60% of the US population did not have $1,000 (or less...can't remember exactly)in savings to deal with emergencies. What happened to the 60's concern about poverty? It died along with unions, the USSR, and industrial capitalism. Capitalism is extraordinary in its ability to shift gears, coopt,rebrand its ideology,repackage its bread and circus, remain mystified, all in the service of control. But institutions that recognize and then correct their mistakes? I don't think so. Are our institutions sufficiently flexible, in changing environments, to sustain the social relations of profit motive, American hegemony, utilitarian logic, instrumental rationality, accumulation, and obscene power and wealth distribution, - or pillars of what we call the good life, of freedom and democracy? I would say so.
Unknown:
Re ontological status of human fetus: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2672893/
It is not 'perfection' that the law seeks, but virtue. In the case at hand, common decency would suffice. No one in their right mind fails to realize that killing a baby is intrinsically evil.
'No one in their right mind fails to realize that killing a baby is intrinsically evil.'
I might not even have room in my vocabulary for the locution 'intrinsically evil'. In any case, most Stone Age human societies routinely practiced infanticide. Estimates of children killed by infanticide in the Mesolithic and Neolithic eras vary from 15 to 50 percent. That may seem irrelevant, and maybe it also seems irrelevant that infanticide continued to be common in most societies after the historical era began. Including: ancient Greece, ancient Rome, the Phoenicians, ancient China, ancient Japan, Aboriginal Australia, Native Americans, and Native Alaskans.
Infanticide became forbidden in Europe and the Near East during the 1st millennium AD. During British rule of India the British attempted to ban infanticide but were only partially successful, and female infanticide in some parts of India still continues. Before the appearance of effective contraception, infanticide was a common occurrence in ancient brothels. Instances of infanticide in Britain in 18th and 19th centuries is often attributed to the economic position of the women. Many historians believe the reason to be primarily economic. Meanwhile, evolutionary psychology has proposed several theories for different forms of infanticide.
But what if I rephase this point about infanticide being intrinsically evil, in a bit more baldly religious language:
'Human life is sacred because from its beginning it involves the creative action of God and it remains forever in a special relationship with the Creator, who is its sole end.'
I put this way, in order to muse about whether nobody 'in their right mind' fails to realize precisely this. Who fails to realize debates over the morality of infanticide itself? Studying societies that practice infanticide, Géza Róheim reported that even infanticidal mothers in New Guinea, who ate a child, did not affect the personality development of the surviving children; that "these are good mothers who eat their own children". Maybe that's not true, but 'nobody in their right mind' seems a high bar. Of course, sex selection may be one of the contributing factors of infanticide. By the way, the practice has been observed in many other species of the animal kingdom.
Unknown:
'The fact that Gorsuch got assisted suicide so wrong does cause me to be concerned regarding his notion of a “constitutional person” which might reach back into the womb and protect a fetus. The notion of rights protected by “natural law,” a view held by J. Thomas, is, in my opinion an antiquated doctrine from the Age of Enlightenment that should have no place in American jurisprudence. The question of when human sentient life begins is, in my estimation, not amenable to scientific determination. It is essentially a religious question,..'
I trip over this bit about “natural law,” because I thought we all might agree that those natural rights of life, liberty, and property protected implicitly in the original Constitution are explicitly protected in the Bill of Rights. This blithe dismissal of 'an antiquated doctrine form the Age of Englightenment' might be rephrased as 'Our legal culture has lost the context in which the Constitution was written'. And that context is actually, I think, the long history of the idea of natural law and of the law of nations evolved by the ancient world and the Middle Ages. But sure, the reason that governments are 'instituted among men' is to protect our natural rights, as the Declaration of Independence states.
How is it then, that 'Gorsuch got assisted suicide so wrong'? He said that assisted death is always wrong. Of course, unlike abortion, physician-assisted death does not fall along partisan lines. The Hippocratic Oath proclaims:
"I will keep [the sick] from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect."
Now maybe this is *not* actually, an essential precept for a flourishing civil society. But it *is* actually, what the Hippocratic Oath proclaims and it is, in turn, one of the oldest binding documents in history. "The Oath of Hippocrates," holds the American Medical Association's Code of Medical Ethics, "has remained in Western civilization as an expression of ideal conduct for the physician." Most graduating medical-school students swear to some form of the oath -- oath-taking in recent decades has risen to near uniformity -- the modern oath's use has burgeoned.
'But Gorsuch’s assertion in the article that assisted suicide would “violate the 14th Amendment’s guarantee of equal protection. Such a law would treat ‘the lives of different persons quite differently’ by prohibiting the murder of the healthy while allowing the killing of the sick,” is just rubbish. Assisted suicide is entirely voluntary – no state has proposed making it compulsory of those whose lives have been deemed spent and no longer useful.'
Here, you are relying upon a 'reliable' distinction, if you will, between physician-assisted suicide, and euthanasia -- the intentional killing of the patient by a doctor. One might pause to reflect, though, on whether the arguments for physician-assisted suicide are equally arguments for euthanasia. As I recall, Neil Gorsuch points out that some contemporary activists fault the movement for not being honest about where its arguments lead. He notes that legal theorist and New York University School of Law professor Richard Epstein "has charged his fellow assisted suicide advocates who fail to endorse the legalization of euthanasia openly and explicitly with a 'certain lack of courage.'"
The logic of assisted suicide leads to euthanasia because should not those who are too disabled to kill themselves have their suffering ended by a lethal injection?
And what of those who are too disabled to request that their suffering be ended, such as infants or the demented?
Besides, why are we picking out Gorusch, here, as if he Supreme Court hasn't ruled in two unanimous decisions that there is no constitutional right to physician-assisted suicide.
"most Stone Age human societies routinely practiced infanticide ... the practice has been observed in many other species of the animal kingdom."
Oh good. If animals do it, and it happened in some ancient societies, it must be a normal part of human existence. Let's just go back to child sacrifice, cannibalism, and selling children off into marriage too.
I took a look at RFGA's link yesterday evening. It's a shame he's unwilling to discuss it (or anything else) like a rational adult, because it's not an unintelligent piece of writing.
If memory serves, it uses metaphysical reasoning (based e.g. on identity and natural kinds) to defend the proposition that a human person at any stage of life is "the same kind of entity" as it was at conception. At one point, it claims that the reasoning of certain abortion rights advocates would be as as "profoundly mistaken" as a (supposedly) parallel defense of killing someone who's asleep or reversibly comatose.
If you have a taste for metaphysics, this sort of thing can be interesting and stimulating. It can make for good recreation to reflect on the metaphysical controversies at play here.
But that's obviously not the end of the matter. A person can be metaphysically clever while also being morally and socially obtuse. Reading the piece brought to mind the expression "metaphysical violence" - I don't know the origins of the expression (Derrida, maybe?), but I do believe I once saw someone use it to describe some "philosophically sophisticated" anti-LGBT bigotry. ("Here's why Aquinas thinks your basic orientation and projects are morally disordered...")
Here's an extreme illustration of metaphysical violence: The sorites paradox, plus a whole host of various Eleatic paradoxes (Zeno etc.), may be used to challenge our intuitions that there are a plurality of individual things, separated by limiting boundaries. These are difficult paradoxes to resolve; I'm not sure anyone has done so with unanimous acknowledgement. And as a consequence (here's the "violence" part), the intuitive distinction between a human body's sexual parts and its neighboring non-sexual parts is difficult to capture in a 100% air-tight, metaphysically unproblematic way. But obviously it would be absurd - too absurd for words - to call into question the distinction between sexual assault and unwanted but non-sexual contact, based solely on this.
Is this analogous to what the authors of RFGA's linked piece are doing? Does their seriousness alone absolve them? Maybe, maybe not - I'd be willing to hear some discussion. But long story short, I think the moral, when evaluating real-world ethical decisions, is to acknowledge a very strong incentive to subordinate metaphysical considerations to pragmatic and humanistic considerations. As Hume says, "Be a philosopher, but amidst your philosophy, be still a (hu)man."
"Look motherfucker,
If you're going to insist that having an abortion means killing a baby, which is extremely offensive to many women who having become pregnant often due to the irresponsibility of their male partner have had abortions well before the fetus can be called a baby by anyone sane,
I'm going to accuse you of genocide because you support a climate change denier, Trump, and I'm going to repeat the accusation every fucking time you accuse women of killing babies.
CLIMATE CHANGE DENIAL IS COMPLICITY IN GENOCIDE, MOTHERFUCKER."
Well, that was quite a leap.
Women shared no responsibility with the male regarding the pregnancy? Lol
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