Judge Neil Gorsuch has never ruled directly on abortion rights, but he has decided twice against Obamacare’s contraception coverage requirement and written a book on the value of human life — signs that he conforms to President Donald Trump’s pledge to appoint “pro-life” justices.
The choice of Gorsuch for the Supreme Court was immediately praised by anti-abortion groups and chastised by supporters of abortion rights.
“President Trump has kept his promise to nominate only pro-life judges to the Supreme Court,” Susan B. Anthony List President Marjorie Dannenfelser said in a statement. “Judge Gorsuch is a distinguished jurist with a strong record of protecting life and religious liberty, as evidenced by his opinions in the Hobby Lobby and Little Sisters of the Poor cases, and in his doctoral dissertation in which he wrote that ‘human life is fundamentally and inherently valuable.’”
If confirmed by the Senate, Gorsuch would not change the high court's balance on abortion because he would replace the late Justice Antonin Scalia — a consistent vote against abortion rights. But with three justices over the age of 78, Trump may have the opportunity to fill additional seats and change the balance of the court on abortion and other issues for decades.
Gorsuch wrote an extensive defense of the “inherently valuable” human life in a 2006 book, “The Future of Assisted Suicide and Euthanasia.” The book provides a moral and legal argument against assisted suicide, arguing that all intentional killing is wrong, and includes an analysis of the Supreme Court’s major abortion rulings.
Gorsuch said the Roe v. Wade decision created a “new right” to abortion access, a suggestion that the court crafted the right out of the 14th Amendment's privacy protection, a criticism frequently leveled by anti-abortion groups. Indeed, anti-abortion groups cite the book as proof of his support for their cause.
But he also seemed to suggest the court’s 1992 Planned Parenthood v. Casey decision — which upheld the right to abortion but created a more clear framework for state regulation — repaired the mistakes in Roe, making it settled law.
“The plurality in Casey expressly sought to provide a firmer basis for the abortion right and to shore up the reasoning behind Roe’s result,” Gorsuch wrote. “In doing so, the Casey plurality purposefully eschewed any effort to examine the history of abortion regulation, stressing instead the importance of ‘reasoned judgment’ in assessing whether to continue recognizing the constitutional right to abortion.”
The book will surely be examined in the run-up to Gorsuch’s confirmation hearings.
Trump pledged to appoint "pro-life" judges and while he did not directly commit to getting the 1973 Roe v. Wade decision on abortion overturned, he insinuated that if the Supreme Court did so, the question of whether abortion is legal would go back to the states to decide.
Supporters of abortion rights immediately decried his selection.
"Gorsuch represents an existential threat to legal abortion in the United States and must never wear the robes of a Supreme Court justice," NARAL Pro-Choice America president Ilyse Hogue said in a statement. "With a clear track record of supporting an agenda that undermines abortion access and endangers women, there is no doubt that Gorsuch is a direct threat to Roe v. Wade and the promise it holds for women's equality."
Gorsuch ruled twice on the Affordable Care Act’s contraception coverage requirement, both times siding with the challengers, who argued that it violated their religious freedoms.
Gorsuch ruled in 2013 in support of Hobby Lobby Stores, which protested the requirement that it provide no-cost access to contraception in its health insurance plans. Gorsuch and his colleagues on the 10th Circuit issued an injunction to block the government from fining the store and its owners for not complying with the controversial provision.
Gorsuch, in a concurring opinion, wrote that the owners of the store had a right to challenge the requirement, which forced them to decide whether to provide contraception or face fines. “This sort of governmental pressure to compromise an article of religious faith is surely sufficient to” give the owners the right to sue, he wrote.
When the related Little Sisters of the Poor case came before him two years later, Gorsuch doubled down on his opposition to the contraception mandate, signing on to a dissenting opinion that said the mandate imposed a “substantial burden” on the nuns’ religious rights.
Gorsuch also weighed in on a case involving the funding of Planned Parenthood.
Last year, Utah Gov. Gary Herbert tried to cut off state funding to the organization in the wake of the sting videos by the Center for Medical Progress, which argued the organization was selling fetal tissue. Gorsuch said he would have allowed the funding blockade to proceed. But a majority of his colleagues on the 10th Circuit let stand a lower-court decision to block the governor's order. They argued that Herbert was taking retaliatory action against Planned Parenthood because he was a long-time opponent of abortion.
The majority of the court “inferred that he wanted to punish the group for its lawful abortion advocacy,” Gorsuch wrote in his dissent defending the governor’s decision as legal. “But it is undisputed that the governor has held office since 2009 and had taken no action against [Planned Parenthood] until shortly after the release of the videos in 2015.”
One anti-abortion activist, Andrew Schlafly, a lawyer at the Legal Center for Defense of Life and the son of a late conservative activist Phyllis Schlafly, has waged a shadow campaign against Gorsuch. Schlafly argues that the selection of Gorsuch would “break Trump’s pro-life pledge," arguing that he doesn't use "pro-life" language and is too beholden to precedent to undo the Roe decision.
“Neil Gorsuch is NOT pro-life,” he wrote in a newsletter last week. “His selection would violate Trump's pledge to nominate a pro-life justice to the Supreme Court. Roe v. Wade won't be overturned for 40 years if the 49-year-old Gorsuch is picked.”
However, Schlafly’s blog posts have been discredited by former Scalia law clerk Ed Whelan and haven’t picked up support among mainstream anti-abortion groups.
Conservative groups have already pledged to back Gorsuch’s nomination. The Judicial Crisis Network announced a $10 million ad buy before the nominee was announced.
Susan B. Anthony List said that it would be mobilizing support as well. “Should pro-abortion Democratic senators choose to filibuster this immensely qualified nominee, they do so at their own political peril,” Dannenfelser said.