Judge Neil Gorsuch: President Trump Stands By His Litmus Test to Appoint Only an Anti-Choice Extremist

March 21, 2017

President Trump has repeatedly stated that he would apply a litmus test in selecting Supreme Court nominees who would oppose a woman’s right to choose and overturn Roe v. Wade.  In nominating Judge Gorsuch, there is good reason to believe that President Trump has kept his word.  Judge Gorsuch’s judicial record strongly suggests he will be a vote against women’s reproductive rights.  And his nomination has been universally praised by anti-choice groups.

President Trump’s Anti-Choice Litmus Test Promise

President Trump repeatedly pledged to only appoint anti-choice Supreme Court justices:

  • “I’m pro-life. The judges will be pro-life.” – President Trump on 60 Minutes, (11/13/2016)
  • In response to a presidential debate question whether he wanted to “see the court overturn Roe v. Wade,” President Trump responded, “Well, if we put another two or perhaps three justices on, that’s really what's going to be – that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”  – Presidential Debate, (10/19/2016)

Vice President Pence echoed President Trump’s commitment to only appoint anti-choice promise for Supreme Court nominees:

  • “And that’s why next week president Donald trump will announce a Supreme Court nominee who will uphold the God-given liberties enshrined in our Constitution, in the tradition of the late and great Justice Antonin Scalia.  Life is winning in America.”  – Vice President Pence at the March for Life (1/27/2017)

Anti-Choice Groups Enthusiastically Support Judge Gorsuch’s Nomination and have Organized to Support his Confirmation

  • A number of the largest anti-choice groups (including Operation Rescue, the Family Research Council, Concerned Women of America, and Americans United for Life) have formed a coalition called “Pro-Life Court” devoted to confirming Judge Gorsuch.  See prolifecourt.com.
  • “One of the reasons I endorsed Trump for president was because of the strong promises he made to pro-life leaders.  Now, after less than two weeks in office, he is keeping those promises” by nominating Judge Gorsuch.  – Troy Newman, President of Operation Rescue
  • “President Trump has nominated Judge Neil Gorsuch — someone who, like Scalia, has demonstrated a consistent commitment to the Constitution as written… We commend President Trump for keeping his word.” – Penny Nance, CEO & President, Concerned Women for America
  • “President Trump has made an exceptional choice in nominating Neil Gorsuch to carry on the legacy of the late Antonin Scalia on the Supreme Court.  In nominating Judge Gorsuch, President Trump has kept his promise to nominate only pro-life judges to the Supreme Court.”  – Marjorie Dannenfelser, President, Susan B. Anthony List

Judge Gorsuch’s Troubling Record on Women’s Reproductive Rights

Judge Gorsuch’s enthusiastic pro-life supporters cite the following three cases as evidence of Judge Gorsuch’s hostility to women’s reproductive rights:

Planned Parenthood Funding: In August 2015, the Governor of Utah tried to block Planned Parenthood of Utah from receiving federal funding.  Planned Parenthood sued the Governor, claiming that his decision was based on his opposition to abortion in violation of the First Amendment.  A panel of Tenth Circuit judges – not including Gorsuch – agreed with Planned Parenthood.  Then an anonymous judge on the Tenth Circuit asked for all the judges on the court to re-hear the case en banc.  A majority of the Tenth Circuit judges voted not to rehear, but Judge Gorsuch wrote a strong dissent last year that would have allowed the Governor to block Planned Parenthood’s funding.[i]  He wrote the dissent even though the Governor had settled the case already and had not asked to have the case reheard.

Women Employees’ Access to Birth Control: 

  • Hobby Lobby:  In 2013, Judge Gorsuch joined the Tenth Circuit majority in deciding that large, for-profit corporations can have religious beliefs and that, based on those beliefs, corporations can choose not to comply with the Affordable Care Act’s contraceptive coverage requirement for women workers.[ii]   Judge Gorsuch also wrote a separate opinion to go even further to argue that the religious beliefs of a corporation’s individual owners were burdened by the requirement on the company to provide the contraception coverage.  Regarding the burden of providing contraceptive health coverage to women workers, Gorsuch wrote: “All of us face the problem of complicity.  All of us must answer for ourselves whether, and to what degree we are willing to be involved in the wrongdoing of others.”[iii] The Supreme Court ultimately upheld the Tenth Circuit in a controversial 5-4 decision, but the Court did not address Judge Gorsuch’s separate argument. 
  • Little Sisters v. Burwell:  In 2015, a panel of Tenth Circuit judges – not including Gorsuch – decided that it was not a violation of the Religious Freedom Restoration Act to require religiously-affiliated nonprofits to fill out a one-page form to opt out of the ACA’s contraceptive coverage requirement.  Just like in the Planned Parenthood case, an anonymous Tenth Circuit judge asked the full court to rehear the case, even though the non-profit had not.  Again, the Circuit Court denied a rehearing and again Judge Gorsuch disagreed with the decision and voted to have the full Tenth Circuit hear the case again.[iv] 

In addition to these three cases, prolifecourt.com cites Gorsuch’s writings on physician-assisted suicide to suggest that he will be an anti-choice vote.   In a book Judge Gorsuch wrote advocating against physician-assisted suicide, he stated:

  • “I seek only to explain and defend an exceptionless norm against the intentional taking of human life by private persons.”[v]
  • “A law ruling out a ‘bad choice’ does not necessarily evince disrespect for the chooser, but for the choice he  or she made; by way of example, parents punish children who make bad choices not because they disdain them, but because they love them and do not wish to see them make bad decisions.”[vi]
  • Judge Gorsuch also argued in his book that the Supreme Court’s landmark decision in Planned Parenthood v. Casey, reaffirming women’s right to abortion first recognized in Roe v. Wade, should be read as a case resting on precedent rather than women’s reproductive rights under the Fourteenth Amendment.  He wrote, “Casey may come to be dominantly read as a stare decisis decision … rather than creating any new, open-ended right to ‘define one’s concept of existence,’”[vii] as Justice Kennedy had recognized in Casey.   
    • Judge Gorsuch argued that the recognition of substantive due process – the principle that some rights, such as the right to liberty and to personal autonomy, are so fundamental they should not be restricted – should be informed by history and an originalist understanding of Constitutional rights
    • An originalist view of substantive due process rights constrains not only the recognition of women’s reproductive rights in Casey but also the right to interracial marriage recognized in Loving v. Virginia and gay rights recognized in Lawrence v. Texas.  In his book, Judge Gorsuch appears to discount the discussions of liberty and autonomy in these cases, concluding only that it “very much remains to be seen” whether future substantive due process rights need to be rooted in “history and custom” rather than personal autonomy.[viii]
    • However, in 2015 in Obergefell v. Hodges, a majority of the Supreme Court seemingly rejected Judge Gorsuch’s argument that substantive due process rights must be found in history when the Court upheld a constitutional right to same-sex marriage.  Justice Kennedy wrote for the Court: “History and tradition guide and discipline this inquiry [into the identification and protection of fundamental rights] but do not set its outer boundaries.”[ix]

 


[i] Planned Parenthood Utah v. Herbert, 839 F.3d 1301 (2016).

[ii] 723 F.3d 1114 (10th Cir. 2013).                                                                                                                                         

[iii] Id. at 52 (emphasis not in original).

[iv] Little Sisters of the Poor v. Burwell, 799 F.3d 1315 (2015). 

[v] Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia at 157 (2006).

[vi] Id. at 168.

[vii] Id. at 81.

[viii] Id.

[ix] 135 S. Ct. 2584, 2598 (2015).