Politics

A Short Section In Neil Gorsuch’s 2006 Book Appears To Be Copied From A Law Review Article

The section is just two paragraphs and accompanying footnotes, but it repeats language and sourcing from another work, a 1984 law review article.

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WASHINGTON — A short section in Judge Neil Gorsuch’s 2006 book appears to copy — at times word-for-word — from a 1984 law review article by a lawyer in Indiana. Other sections of his book that were reviewed by BuzzFeed News contain additional apparent attribution errors.

President Trump’s Supreme Court nominee, whose nomination is being considered by the full Senate this week, has been an appellate judge for more than a decade. In all that time, he has been praised for his writing and has never been accused of plagiarism in his more than 200 opinions on the bench.

The section at issue in his book, The Future of Assisted Suicide and Euthanasia, is a brief one: It is a summary of the facts and ruling in the 1982 case of Baby Doe, a baby born in Indiana with Down syndrome. It takes up only two paragraphs and seven endnotes in a book that covers more than 300 pages, including endnotes. The book came out of his 2004 Doctor of Philosophy dissertation from the University of Oxford.

The section, however, repeats language and sourcing from another work — Abigail Lawlis Kuzma’s 1984 Indiana Law Journal article, “The Legislative Response to Infant Doe.”

“‘Baby Doe’ (an appellation used to protect the family’s privacy) was born in Bloomington, Indiana, on April 9, 1982, with two congenital anomalies, Down’s syndrome and esophageal atresia with tracheoesophageal fistula,” Gorsuch began.

“Infant Doe was born in Bloomington, Indiana, on April 9, 1982 with two congenital anomalies, Down’s syndrome and esophageal atresia with tracheoesophageal fistula,” Kuzma began.

Later, Gorsuch described what was happening:

Down’s syndrome is a chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation. Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus. As a result, food and drink pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation. Surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success, but the parents of Baby Doe refused to consent to the surgery.

As had Kuzma, years earlier:

Down’s syndrome or “Mongolism” is an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation. Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus such that substances taken orally pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation. Corrective surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success, but the Bloomington Hospital is not equipped to handle the operation. However, the parents of Infant Doe refused to transfer their baby to Riley Hospital, a referral hospital in Indianapolis, Indiana, for corrective surgery.

Gorsuch’s 2006 book contained two endnotes regarding the above-cited section:

49. “Virtually all individuals with Down’s syndrome have some degree of developmental retardation. The range of IQ scores has been wide, but most individuals are trainable by adulthood. Social skills usually are closer to the normal range than performance abilities… . The degree of mental retardation is quite variable, but most children learn to walk and develop some communication skills; there is a steady progress of development, at a slower pace than usual … [and c]hildren reared at home have higher IQs than those reared in institutions.” A. Rudolph, Pediatrics 244 (17th ed. 1983).

50. See R. Behrman and V. Vaughan, Nelson Textbook of Pediatrics 893–94 (12th ed. 1983).

Kuzma’s 1984 law review article contained several footnotes in the above-cited section, including:

14. “Virtually all individuals with Down’s syndrome have some degree of developmental retardation. The range of IQ scores has been wide, but most individuals are trainable by adulthood. Social skills usually are closer to the normal range than performance abilities …. The degree of mental retardation is quite variable, but most children learn to walk and develop some communication skills; there is a steady progress of development, at a slower pace than usual … [and c]hildren reared at home have higher IQs than those reared in institutions.”

A. RUDOLPH, PEDIATRICS 244 (17th ed. 1983).

15. See generally R. BEHRMAN & V. VAUGHAN, supra note 3, at 893-94.

The similarities continued throughout the brief section.

Kuzma did not respond directly to multiple requests for comment. In a statement from Kuzma provided to BuzzFeed News from the team of White House and outside staffers working on Gorsuch’s nomination, she said, “I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the ‘Baby/Infant Doe’ case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.”

A quick review of other academic work citing the case plainly shows differing ways to detail the case, including one that even cites Kuzma’s work.

Chris Mammen, who was a student at Oxford while Gorsuch was there, said in a statement provided by Gorsuch’s team, “The standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.”

A BuzzFeed News review of the 10 case summary sections in the first half of chapter 10 of Gorsuch’s book, including the Baby Doe section, shows that one of the other nine also appears to have repeated some language from an uncredited law review article, although less extensively. A third section quotes extensively from a foreign-law decision — which is cited at the opening of the section — but large quotations are reprinted directly without using proper attribution.

Having reviewed the examples provided by BuzzFeed News to the Gorsuch team, the professor who supervised Gorsuch’s dissertation, Emeritus Professor John Finnis of Oxford University, provided a statement to the Gorsuch team, concluding, “[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

In a section detailing a British case, In re T, descriptions from Graham Rossiter’s “Contemporary Transatlantic Developments Concerning Compelled Medical Treatment of Pregnant Women,” published in the Australian and New Zealand Journal of Obstetrics and Gynaecology in 1995, are repeated in Gorsuch’s description of the case. The language in multiple places is the same between Rossiter and Gorsuch’s work and different from the underlying cited court opinion.

Gorsuch, 2006:

Like Georgetown College, this case involved a blood transfusion and a Jehovah’s Witness. The patient, “T,” a twenty-year-old woman thirty-four weeks pregnant and living with her boyfriend, was admitted to a hospital following a traffic accident, with symptoms of pneumonia. T’s mother was a devout Jehovah’s Witness, while her father rejected the religion, and the parents were divorced. T described herself as a former Jehovah’s Witness when she entered the hospital, though she also stated that she still had certain beliefs and practices. Once admitted, T’s condition deteriorated and she went into labor; a caesarian section birth was necessary. Twice T expressed her opposition to any blood transfusion, though both conversations came shortly after she had met alone with her mother. T eventually signed a refusal of care form supplied by the hospital, which was neither read nor explained to her. The following morning, T delivered a stillborn child and her condition deteriorated to such an extent that she was sedated and placed on a ventilator; but for her expressed wishes, she would have been given a transfusion. T’s father, at this point, supported by T’s boyfriend, applied for a declaratory judgment that it would not be unlawful for the hospital to administer a transfusion. The case worked its way to England’s Court of Appeal, which ultimately concluded that the transfusion could be given.

Rossiter, years earlier:

In the first of these, in Re T, the Court was faced with an appeal from a decision of a judge declaring lawful the administering of a blood transfusion to a patient 34 weeks’ pregnant at the time who was admitted to hospital following a road traffic accident. The patient had been brought up as a Jehovah’s Witness but was not an active practising member of that religious denomination at the time the went in question occurred. She orally informed a nurse (twice) that she did not wish a blood transfusion and also signed a form provided by the hospital, which was neither read nor explained to her, signifying her refusal of consent to any such procedure. The following morning, her child was delivered stillborn and her condition deteriorated to such an extent that, but for her expressed wishes, a blood transfusion would have been given. Her condition remained critical and she was sedated and placed on a ventilator. The patient’s father (a non-Jehovah’s Witness) supported by her boyfriend applied to the Court for a declaration that it would not be unlawful for the hospital to administer a transfusion in the absence of her consent. An order was made by the High Court in terms of the application before it and that judgment was upheld on appeal.

Finally, in a section in Gorsuch’s book detailing an Italian case, In re B, he cites initially to the decision and, later, includes endnotes on both occasions when he uses quotations from the decision. In describing the case throughout the section, however, there are several points where he uses direct quotations from the decision without any attribution.

At one point, for example, Gorsuch describes the “one-way weaning program” as one “whereby, over a period of time, the number of breaths supplied by the ventilator is gradually reduced and the patient’s body is allowed to become used to breathing on its own again.” No attribution is given to that description, and no quotation marks are used.

In the court’s opinion, it states, “One-way weaning is a programme whereby over a period of time the number of breaths supplied by the ventilator is gradually reduced and the patient’s body is allowed to become used to breathing on its own again.”

The most prominent attribution errors in the first half of chapter 10, however, come in the Baby Doe section, detailed above.

Gorsuch ended the section by detailing that “the child died on the sixth day after he was born while a guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.”

Kuzma ended the section of her 1984 article by detailing that “the child died on the sixth day after he was born while the guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.”

They both cite to an article from the Bloomington Sunday Herald-Times.


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Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, D.C. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at chris.geidner@buzzfeed.com.
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