Noah Feldman, Columnist

The Big Abortion Question for Gorsuch

Does the Supreme Court nominee believe fetuses have constitutional rights? That would upend the whole argument.

February 16, 2017 at 10:00 AM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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If the U.S. Supreme Court were to reverse Roe v. Wade, individual states could still permit abortion. But, in theory, the Supreme Court could go further, and rule that laws permitting abortion violate the equal protection rights of unborn fetuses. That may seem far-fetched -- but in his book on assisted suicide and euthanasia, Judge Neil Gorsuch lays out an argument that could easily be used to this end.

Gorsuch, President Donald Trump’s nominee for a seat on the Supreme Court, carefully avoids discussing abortion rights directly in his book. Yet his disparagement of what he calls “ageism” amounts to a principle that could easily be applied to fetuses.