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Looking for ways to celebrate Saint Patrick’s Day? Check out Ireland’s colorful, CKAN powered open data portal. Meanwhile, in today’s edition, the sun sets on Sunshine Week, Trump drops his budget request, Phoenix embraces open data, and more…Sunshine Week
- Senator Chuck Grassley shared strong words in support of FOIA and transparency more broadly. In a post on Medium the Iowa Republican celebrated the FOIA Improvement Act of 2016 while promising continued vigilance and oversight. “But we can’t just rest on our laurels. No matter which party is in control of Congress or the White House, continuing oversight of FOIA — and the faithful implementation of its amendments — is essential to ensure the law’s effectiveness as a tool for the public good,” he wrote. (Senator Grassley)
- Sen. Grassley teamed up with Sen. Amy Klobuchar to call for courtroom transparency. Earlier this week the bipartisan tandem “introduced the Sunshine in the Courtroom Act to give all federal courts, including the Supreme Court, the option of allowing their judicial proceedings to be photographed, recorded, broadcast or televised.” (The Hill)
- Data from 30,000 FOI requests at federal, state, and local level sheds light on response times. MuckRock analyzed their database and found that “despite FOIA’s reputation for being an eternity of waiting, our numbers indicate that while there are delays, most agencies are good at getting you a response within a month or so.” (MuckRock)
- The National Security Archive rounded up the busy week’s worth of FOIA news. The roundup kicked off with an analysis of the Office of Information Policy’s concerning response to the dissapointing results of the Archive’s annual FOIA Audit, which found that 3 out of 5 agencies have failed to update their FOIA regulations in response to the FOIA Improvement Act. (National Security Archive)
- Phoenix, AZ has teamed up with OpenGov on a new open data platform. “The new open source platform will improve both internal and public access to key information, such as public safety and transportation data” in Phoenix, the 6th largest city in the United States. (OpenGov)
- Los Angeles is leveraging open data and mapping technology to clean up its streets. “Los Angeles, California’s comprehensive Clean Streets LA (CSLA) initiative is effectively addressing street cleanliness using the power of data and mapping. Through a CSLA initiative called CleanStat, Los Angeles is the first city to map the cleanliness of every one of its blocks.” (Data-Smart City Solutions)
President Trump released his budget proposal yesterday. We can expect a long time and a lot of debate before Congress approves a final budget, but it is worth considering what the President’s proposal might mean for government data and transparency programs. We’ve rounded up some initial stories and analysis below and are on the look out for more. If you’re tracking the budget and have a story to share please do by emailing us at firstname.lastname@example.org
- Good news for the Census? There has been some concern that the 2020 Decennial Census would be targeted for cuts “threatening the accuracy of the constitutionally mandated tally of Americans. But Trump has proposed boosting the project’s funds, particularly for technology needed to gather the data.” (Bloomberg)
- A focus on federal IT? The Trump budget puts some focus on streamlining federal information technology and “…proposes using data to find solutions, and sharing and adopting best practices from the private and public sectors.” Specific items include more money for IT at the Veterans Affairs department (FedScoop)
- NOAA’s in trouble, but its satellites are safe. The budget proposal recommends a $250 million cut to the National Oceanic and Atmospheric Administration “but there’s one area of the massive data-collecting agency he seems keen on sparing: its satellite fleet.” The agencies satellites are vital to weather forecasting, a variety of business applications, and more. (Bloomberg)
- The fate of the US Digital Service remains unclear. “Formed as a continuation of the private sector tech experts who helped salvage Healthcare.gov, the USDS has since grown and expanded to become the go-to team for managing difficult digital projects across agencies, and now includes branches within the Defense Department. But will it survive in the Trump administration?” (FedTech Magazine)
- Time to pass the “DATA Act for the financial industry.” Just reintroduced by Rep. Darrell Issa (R-CA)) “the Financial Transparency Act would direct the government’s eight financial regulatory agencies to adopt data standards for the information they collect from the private sector in order to reduce duplication, burden and fraud and make it available for download, accessible via application programming interfaces and easily searchable. Currently, companies must supply reports in both machine-readable and paper – or PDF – formats.” (Federal Computer Week)
- Lawmakers look to protect privacy, increase transparency around drones. “Two Democratic lawmakers proposed legislation Wednesday that they said would protect individuals’ privacy and inform the public about the U.S. government’s expanded drone use.” (The Hill)
- Senator Claire McCaskill introduced a bill that would improve contract transparency. S. 651, the Contractor Accountability and Transparency Act of 2017, would make more robust contract information publicly accessible through usaspending.gov. (Senator McCaskill) Sunlight has joined a bipartisan coalition letter in support of this legislation, arguing that “Posting copies of contracts—rather than summary data that offers little, if any, insights into the goods and services being purchased—is essential to learning about government activities and eliminating waste, fraud, abuse, and substandard performance.”
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In The Washington Post, Robert Barnes and Ed O’Keefe report that “Senate Democrats are requesting more information about Supreme Court nominee Neil Gorsuch’s role defending the George W. Bush administration in lawsuits over terrorism policies and interrogation of detainees.” In The New York Times, Charlie Savage reports on Gorsuch’s job at the Justice Department, which put Gorsuch “at the center of both litigation and negotiations with Congress over legislation about” controversial topics such as “detainee abuses, military commissions, warrantless surveillance and [the Bush administration’s] broad claims of executive power.”
In The Wall Street Journal, Jess Bravin looks at Gorsuch’s ties to Oxford don John Finnis, Gorsuch’s thesis adviser at Oxford, who “revived the academic vitality of natural law, which posits that law’s legitimacy rests on moral values intrinsic to human nature” and which “undergirds much of modern conservative legal thought.” At NPR, Nina Totenberg reports that “the legal road signs” point to “the nominee’s conservatism,” and that although Gorsuch, “has never ruled directly on an abortion question,” “he has ruled on questions involving contraception and public funding for Planned Parenthood — unrelated to abortion,” and “in none of these cases has he sided with advocates of birth control or abortion rights.”
In a column in The New York Times, Linda Greenhouse suggests that senators ask Gorsuch how he would have voted in Buck v. Davis, in which a divided court recently lifted the death sentence of a Texas inmate whose defense expert had testified during sentencing that the defendant was more likely to be violent in the future because he is black, and whether he shares Judge Robert Bork’s “zero-sum theory of rights.” At Just Security, Jennifer Daskal offers a series of specific questions for Judge Gorsuch focused on “at least five key cases during his two years at the Justice Department that involved efforts to defend and shield from review detainee abuse, warrantless wiretapping, and the expansive use of the FBI’s national security authorities,” as well as Gorsuch’s involvement in “policy discussions regarding the contours of the Detainee Treatment Act of 2005, which among other things stripped Guantanamo detainees of the ability to bring habeas challenges their detentions.”
In an op-ed in The Washington Post, retired federal judge James Robertson, who in 1987 “led a team of young lawyers to oppose President Ronald Reagan’s nomination of Robert Bork to the Supreme Court,” argues that it is “time for a truce” in the “Thirty Years’ War on judicial appointments.” In a Bangor Daily News op-ed, Peter Sly wonders how Gorsuch’s “sanctity of life ethic” will affect his attitude towards “our gun suicide epidemic,” noting that recent Supreme Court Second Amendment decisions “facilitate the gun suicide epidemic by fostering guns in the home.” In an op-ed in The Wall Street Journal, Nathan Diament is encouraged by Gorsuch’s expansive view of religious liberty, noting that “when it comes to religious claims under the First Amendment, Judge Gorsuch’s reading of the Constitution may be more generous even than Scalia’s,” and that “those who care about religious liberty may want to pray that he gets the chance to rule on it.”
Constitution Daily’s We the People podcast features a discussion of Murr v. Wisconsin, an upcoming case in which the court will consider what constitutes the “parcel as a whole” for the purpose of regulatory takings analysis. CBN News also covers the case, noting that the Murrs will “fight for their all-American right to sell their own land before the U.S Supreme Court Monday, March 20.” In an op-ed in Twin Cities, Mike Murr, a social-science teacher who is one of the petitioners in the case, looks forward to his day in the Supreme Court, concluding that regardless “of the case outcome, this experience will have enhanced not only my personal life, but also the lessons I bring to my students that the federal judicial system exists to ensure that we are all equal under the law.” In an op-ed in The Washington Times, J. David Breemer weighs in on Murr, arguing that if “the government can get around its duty to compensate when denying all use of a piece of property by aggregating all property owned by a plaintiff (ignoring lot lines) to create a bigger area that has some use as a whole, many Americans with multiple lots will lose constitutional protections.”
At the Associated Press, David Porter reports that “Supreme Court Justice Samuel Alito told an audience Wednesday at an event sponsored by a Catholic lawyers’ organization” that the “U.S. is entering a period when its commitment to religious liberty is being tested,” and that it is “”up to all of us to evangelize our fellow Americans about the issue of religious freedom.’” At Slate, Steven Lubet inquires into whether a recent appearance by Alito at the Claremont Institute violated a “prohibition on fundraising” that is a “long-standing principle of judicial ethics.”
- In The New York Times, Adam Liptak reports that a “lighthearted” Chief Justice John Roberts presided this week over a fraudulent misrepresentation case against Tom Sawyer brought by the boys whom Sawyer bamboozled into whitewashing a fence.
- At Sidebars, Randall Eliason discusses the court’s recent decision inPeña-Rodriguez v. Colorado, in which the justices held that evidence that a juror relied on racial animus to convict a criminal defendant trumps a Colorado no-impeachment rule, observing that logic “seems to demand that the Court’s rationale be expanded to other forms of bias in future cases” and that the “decision may have additional unintended consequences.”
Remember, we rely exclusively on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.
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The petition of the day is:Doe v. United States 16-876
Issue: Whether a federal district court’s ancillary jurisdiction in criminal cases includes the power to hear motions to expunge criminal records.
“Each month, The Hamilton Project examines the “jobs gap,” which is the number of jobs that the U.S. economy needs to create in order to return to pre-recession employment levels while also absorbing the people who enter the potential labor force each month. As of February 2017, our nation faces a jobs gap of 500,000 jobs. This chart shows how the jobs gap has evolved since the start of the Great Recession in December 2007, and how long it will take to close. The solid line shows the net number of jobs lost since the Great Recession began. The broken line tracks how long it will take to close the jobs gap if the economy adds about 196,000 jobs per month, which is the average monthly rate of net job creation over the last 12 months. With this projected job growth rate, the economy will reach pre-recession employment levels by June 2017.”
UN Women: “The number of women in executive government and in parliament worldwide has stagnated, with only marginal improvements since 2015, according to the data presented in the Women in Politics 2017 Map launched today by the Inter-Parliamentary Union (IPU) and UN Women. The Map, which depicts global rankings for women in the executive and parliamentary branches of government as of 1 January 2017, shows slow progress towards gender equality in these areas at regional and national levels. The presentation took place at a joint IPU-UN Women press conference in New York, in the context of the ongoing session of the Commission on the Status of Women (CSW61). Women’s political empowerment and equal access to leadership positions at all levels are fundamental to achieving the Sustainable Development Goals (SDGs) and a more equal world. With limited growth in women’s representation, advancement of gender equality and the success of the SDGs are jeopardized. The 2017 edition of the Map shows a slight drop in the number of countries with a woman Head of State and/or Head of Government from 2015 figures (from 19 to 17). However, the data reveals a significant increase in the number of countries with a woman Head of State and/or Head of Government since the IPU-UN Women Map’s first edition in 2005 (from 8 to 17).
National Security Archive: “Three out of five of all federal agencies are flouting the new law that improved the Freedom of Information Act (FOIA) and required them to update their FOIA regulations, according to the new National Security Archive FOIA Audit released today to celebrate Sunshine Week. The National Security Archive Audit found that only 38 out of 99 federal agencies have updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016 that was passed with bipartisan, bicameral support. The new law required agencies to update their FOIA regulations within 180 days of passage – that was June 30 so December 27, 2016 was the deadline. Updated regulations were supposed to include the law’s new improvements, such as requiring agencies provide requesters with no less than 90 days to file an appeal, prohibiting agencies from charging “search or duplication fees when the agency fails to meet the notice requirements and time limits set by existing law,” and mandating agencies notify requesters of their right to seek assistance from either the agency’s FOIA Public Liaison or to seek dispute resolution services with the Office of Government Information Services (OGIS), the FOIA ombudsman…”
“Home prices are higher today than they were before the housing bubble. Because incomes have increased at a slower pace than housing prices, however, housing affordability has actually declined. Housing prices also vary considerably within states. To determine the county with the most expensive housing market in every state, 24/7 Wall St. reviewed median home prices as of the fourth quarter of 2016 from the National Association of Realtors. The typical home nationwide costs $235,000. Of the 3,119 counties measured, San Francisco County, California is the most expensive housing market. The typical home there sells for over $1 million. The counties with the most expensive housing markets are frequently within large metropolitan areas. In fact, 38 of the counties on this list are near urban centers.”
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Search Engine Land: “Google is undertaking a new effort to better identify content that is potentially upsetting or offensive to searchers. It hopes this will prevent such content from crowding out factual, accurate and trustworthy information in the top search results. “We’re explicitly avoiding the term ‘fake news,’ because we think it is too vague,” said Paul Haahr, one of Google’s senior engineers who is involved with search quality. “Demonstrably inaccurate information, however, we want to target.”…Quality raters use a set of guidelines that are nearly 200 pages long, instructing them on how to assess website quality and whether the results they review meet the needs of those who might search for particular queries…”
Sag, Matthew and Haskell, Jake, Defense Against the Dark Arts of Copyright Trolling (March 14, 2017). Available at SSRN: https://ssrn.com/abstract=2933200
“In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. This practice is a sub-set of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet technology. The plaintiffs bringing these cases target hundreds or thousands of defendants nationwide and seek quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the merits of the claim. We report new empirical data on the continued growth of this form of copyright trolling in the United States. We also undertake a detailed analysis of the legal and factual underpinnings of these cases. Despite their underlying weakness, plaintiffs have exploited information asymmetries, the high cost of federal court litigation, and the extravagant threat of statutory damages for copyright infringement to leverage settlements from the guilty and the innocent alike. We analyze the weaknesses of the typical plaintiff’s case and integrate that analysis into a comprehensive strategy roadmap for defense lawyers and pro se defendants. In short, as our title suggests, we provide a comprehensive and useful guide to the defense against the dark arts of copyright trolling.”
March, 16, 2017 – “The American Bar Association is outraged that the administration proposes to eliminate funding for the Legal Services Corporation in its budget and calls on every member of Congress to restore full funding. LSC provides civil legal aid to people who desperately need help to navigate the legal process. Without this assistance, court house doors will slam in the faces of millions of Americans, denying them equal access to justice.Some of the worthy services the LSC provides include securing housing for veterans, protecting seniors from scams, delivering legal services to rural areas, protecting victims of domestic abuse and helping disaster survivors. Their offices are in every congressional district and they help almost 1.9 million people annually. More than 30 cost-benefit studies all show that legal aid delivers far more in benefits than it costs. If veterans become homeless, or disaster victims cannot rebuild, their costs to society are significantly more. LSC has had bipartisan support in Congress since its inception in 1974 because it embodies the principles that for two centuries have defined us as Americans – fairness and equal access to justice. These principles should be for all people regardless of economic status. As the budget process proceeds, the ABA will be working to ensure that Congress provides adequate funding for LSC. It is cost-effective, beneficial to millions of Americans and the right thing to do for our country.”
Electricity: Status of Residential Deployment of Solar and Other Technologies and Potential Benefits and Challenges, GAO-17-142: Published: Feb 13, 2017. Publicly Released: Mar 15, 2017.
“Rooftop solar panels, batteries, and smart thermostats, installed in residences, can allow customers to generate and store electricity, as well as manage its use. These and other technologies can make electricity grids operate more efficiently and provide other benefits—such as cleaner generation of electricity. However, if deployed without regard to grid conditions, these technologies could present challenges—for example, too much customer-generated power could exceed local grid capacity and lead to higher infrastructure costs. State and federal policymakers are considering ways to mitigate these challenges and maximize benefits.”
Bloomberg provides a detailed, clear and actionable article, accompanying visualization and charts specific to These 80 Programs Would Lose Federal Funding Under Trump’s Proposed Budget – “U.S. President Donald Trump’s first budget proposal includes massive cuts across most of the federal government. The Environmental Protection Agency and the Department of Agriculture face unprecedented discretionary funding cuts in excess of 25 percent, as Trump attempts to boost the military and national security….Trump’s budget also proposes eliminating discretionary funding altogether for at least 19 agencies and 61 other programs. Plans for new NASA missions, climate change research, aid for low-income families and funding for commercial flights to rural airports would all be on the chopping block. Trump says many of these programs are inefficient or duplicative. All this could change; Trump will deliver a final budget in May and Congress would have to approve the cuts—something they have often resisted in the past…”
- Visual breakdown: What the budget would mean for each agency
- What government reform experts think of Trump’s plan for ‘making government work again’
- Firing federal workers isn’t as easy as Trump makes it seem
- The African Development Foundation
- The Appalachian Regional Commission
- The Chemical Safety Board
- The Corporation for National and Community Service
- The Corporation for Public Broadcasting
- The Delta Regional Authority
- The Denali Commission
- The Institute of Museum and Library Services
- The Inter-American Foundation
- The US Trade and Development Agency
- The Legal Services Corporation
- The National Endowment for the Arts
- The National Endowment for the Humanities
- The Neighborhood Reinvestment Corporation
- The Northern Border Regional Commission
- The Overseas Private Investment Corporation
- The United States Institute of Peace
- The United States Interagency Council on Homelessness
- The Woodrow Wilson International Center for Scholars.
In 2004, Neil Gorsuch was awarded a doctorate in legal philosophy by the University of Oxford, the British institution where he studied as a Marshall Scholar. Gorsuch’s doctoral thesis on euthanasia and assisted suicide served as the basis for his 2006 book, “The Future of Assisted Suicide and Euthanasia.” At Gorsuch’s confirmation hearing that year, Sen. Lindsey Graham asked Gorsuch about his writings on assisted suicide and euthanasia, noting that Gorsuch had been “prolific.”
Gorsuch assured Graham that his “personal views” would have “nothing to do with the case before” him in any situation. Having said that, though, Gorsuch added that his writings on assisted suicide and euthanasia had “been largely in defense of existing law” and were “consistent with the Supreme Court’s decisions in this area and existing law in most places.”
When Gorsuch first began his studies at Oxford in the early 1990s, euthanasia and assisted suicide were both high-profile and controversial issues. In 1997, in Washington v. Glucksberg and Vacco v. Quill, the Supreme Court rejected challenges to the constitutionality of state laws banning assisted suicide. But, Gorsuch emphasized in his book, the justices who concurred in that ruling left open the question whether such laws would be unconstitutional in the specific cases of adults who were terminally ill. “Thus, far from definitively resolving the assisted suicide issue,” Gorsuch suggested, “the Court’s decisions seem to assure that the debate over assisted suicide and euthanasia is not yet over—and may have only begun.”
Gorsuch’s prediction appears to have mostly missed the mark: The debate over assisted suicide and euthanasia largely subsided in the years following the publication of his book. Assisted suicide remains illegal in 44 states, while all 50 states ban euthanasia, and there have been few signs that the issues could make their way to the Supreme Court anytime soon. But Gorsuch’s book on assisted suicide and euthanasia nonetheless remains relevant, not only for what it tells us about his views and his writings more generally, but also for what (if anything) we might be able to glean from the book that might shed more light on his views on abortion.
Much of Gorsuch’s book is devoted to an exhaustive (but not exhausting) survey of the history of assisted suicide and euthanasia, the legal and ethical arguments in favor of the two, and court cases – in the United States and the United Kingdom – dealing with the right to die. Gorsuch is sharply critical of experiments with allowing assisted suicide and euthanasia in the Netherlands and Oregon. In the Netherlands, Gorsuch observes, “it appears that, for every three or four acts of voluntary euthanasia, the Dutch regime generates one case of a patient being killed without consent.” Moreover, he continues, euthanasia and assisted suicide are often motivated less by the desire to alleviate pain or respect patient autonomy than by a physician’s subjective belief that the patient’s quality of life is “degrading” or “hopeless.”
And in Oregon, which allows “capable” adults with terminal diseases to request medication to end their lives, the law does not require physicians to refer patients who want to commit assisted suicide to mental health professionals. Gorsuch cites data raising the possibility that other factors, such as depression or isolation, rather than terminal illnesses, may be driving assisted suicide in Oregon. Reporting requirements in the state are minimal, he adds, such that “Oregon officials admit that they have no idea how often state law is violated, and no way to detect cases of abuse and mistake.” Given the many flaws in the two regimes, he points to the potential costs if assisted suicide and euthanasia were legalized more broadly – particularly the prospect that they could lead to pressure, “real or imagined,” for the poor, minorities and the elderly to commit assisted suicide, in part because of the high costs of health care in the United States.
Although Gorsuch was correct at his confirmation hearing that his book defends existing laws prohibiting assisted suicide and euthanasia, the book offers an alternative ground to justify them: “the idea that all human beings are intrinsically valuable and the intentional taking of human life is always wrong.” Dubbing his rationale the “inviolability-of-life principle,” he characterizes it as a “middle path” between two extremes – on the one hand, the idea that life is “the most important good that must always be maintained” and, on the other, the idea that a person could die or be killed based on someone else’s judgment about his quality of life.
Gorsuch’s “middle ground” would, he takes pains to emphasize, still allow terminally ill patients to refuse or discontinue treatment; it would also allow medical personnel to prescribe high doses of morphine or other painkillers when death is near. The “critical, rational moral line,” he explains, is intent. When medical personnel and the patient’s family are seeking to relieve the patient’s pain, or the patient doesn’t have a “suicidal impulse” but opts to discontinue or refuse treatment “out of a recognition of the inevitability of death,” doctors should be permitted to prescribe painkillers and discontinue treatment even when they know that death will result and may even be accelerated. But, he cautions, doctors cannot do these same things when they do so with the intent to cause the patient’s death.
Allowing doctors to prescribe an overdose of morphine or discontinue care with the intent to relieve a patient’s physical suffering, even knowing that it will also result in death, but not allowing it with the intent to cause death may seem like a somewhat artificial distinction. But, in Gorsuch’s view, the distinction would also solve a constitutional conundrum: If – as essentially all states allow – patients can refuse care or discontinue treatment, why shouldn’t they also have a right to a doctor’s assistance in committing suicide? Although other efforts by scholars and lawyers to distinguish assisted suicide and euthanasia from the right to refuse treatment fall short, Gorsuch contends, “an intent-based distinction may work sufficiently well to withstand a constitutional equal protection challenge. Assisted suicide and euthanasia differ from the right to refuse in that they necessarily entail an intent to kill and, with it, the judgment that a patient’s life is no longer worth living. Such an intention may be present in a decision to refuse treatment, but, I suggest, it need not be.”
Gorsuch devotes an entire chapter to an analysis of Planned Parenthood v. Casey, the Supreme Court’s 1992 decision reaffirming a woman’s right to an abortion, and Cruzan v. Director, Missouri Department of Health, the court’s 1990 decision upholding the state’s refusal to allow the parents of a woman in a “persistent vegetative state” to terminate treatment on her behalf. The question for Gorsuch is whether the two cases support an interest in autonomy, protected by the Constitution, that could in turn support a right to assisted suicide and euthanasia. In his view, they do not. He maintains that the court’s decision in Casey should be read more narrowly, pointing to the portion of the decision in which a plurality of the court argues “that the doctrine of stare decisis, or respect for long-settled law, required continued adherence” to the court’s 1973 decision in Roe v. Wade, which recognized a woman’s right to terminate her pregnancy.
In a footnote, Gorsuch stresses that his analysis in his book is limited to assisted suicide and euthanasia; he has no intent “to engage the abortion debate.” But he doesn’t stop at that. Instead, he acknowledges that “abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if, a fetus is considered a human life.” Gorsuch then seems to pull back again, reminding his readers that in Roe the Supreme Court “unequivocally held that a fetus is not a ‘person’ for purposes of constitutional law” – suggesting, perhaps, that the issue has already been taken off the table. However, when Gorsuch makes the same statement elsewhere in the book, he again cites Roe, but he also cites a dissent by Justice Byron White, for whom Gorsuch clerked. Gorsuch characterizes the White dissent as “arguing that the right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not.” Gorsuch may not share White’s view, but his decision to include it is somewhat curious given what he has elsewhere described as the court’s “unequivocal” holding.
Is Gorsuch’s reference to the White dissent a veiled hint into his own views on abortion or merely an effort to give equal time to an opposing view? It is impossible to know for certain, and we aren’t likely to learn anything more at his confirmation hearing. If Gorsuch is confirmed, we may have to wait for the next challenge to laws regulating abortion to reach the Supreme Court.
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