"This is not to say that all persons would always make a similar choice, but the fact that some people have made such a choice is some evidence that life itself is a basic good."
The founding documents of the United States, the Constitution, and foreign political documents express that life is a basic good and argue from pragmatic experience and history, he says:
"The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the laws to all persons; this guarantee is replicated in Article 14 of the European Convention and in the constitutions and declarations of rights of many other countries. This profound social and political commitment to human equality is grounded on, and an expression of, the belief that all persons innately have dignity and are worthy of respect without regard to their perceived value based on some instrumental scale of usefulness or merit. We treat people as worthy of equal respect 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.'"
To say that some persons don't have a right to life is a clear violation of "equal protection," and undermines it at its core, he adds.
Furthermore, Gorsuch says, to create distinctions on a person's right to life based on their "currently exercisable abilities for self-creation and self-expression" leads to "arbitrary" and "subjective" judgments of whose life should be protected – like determining the rights of "those with low IQs," "the autistic," and "infants with Down syndrome."
Yet those who argue that some persons do not have the same rights as others "ask us to accept, judge, and decree that certain persons with certain (rather arbitrarily chosen) instrumental capacities are worth our total respect – inviolable under law – while other persons who lack those capacities do not merit such esteem, respect, and protection," he writes.
"In the name of progressive policy, they would create a second class of citizens."
Thus, Gorsuch concludes, "if, as I have argued, human life qualifies as a basic good it follows that we can and should refrain from actions intended to do it harm." And this will "rule out cases where the doctor intends to kill his or her patient."
And so, he determines, "current laws against assisted suicide and euthanasia largely should be retained."