Gorsuch and Reproductive Rights – What We Know

February 10, 2017

by Katie O’Connor

Throughout his campaign and in the months since his election, President Trump has repeatedly pledged that his nominee to replace the late Justice Antonin Scalia on the Supreme Court will vote to overturn Roe v. Wade, the landmark 1973 Supreme Court case which guarantees the right to abortion. Always a fan of suspense, Trump released two lists of potential nominees before his election, and legal and advocacy organizations began compiling profiles on each of the names. But it was not until Feb. 1, 2017, that speculation regarding the potential nominee to fill Justice Scalia’s seat ended, and President Trump formally transmitted the nomination of Tenth Circuit Court of Appeals Judge Neil Gorsuch to the Senate for confirmation.

Despite the president’s campaign pledges, we cannot know with certainty how Judge Gorsuch would rule if the Court were asked to overturn Roe v. Wade. What we do know, however, is the following.

Judge Gorsuch is no champion of women’s access to contraception and reproductive healthcare more broadly. He joined the 2013 decision of the U.S. Court of Appeals for the Tenth Circuit in Hobby Lobby v. Sebelius, which found that Hobby Lobby, a for-profit corporation, can have a sincerely-held religious belief that certain contraceptive methods are actually abortifacients (though experts argue they are not) and that facilitating coverage of those methods would be a sin. Moreover, the decision ruled, Hobby Lobby’s religious beliefs would be substantially burdened by a provision under the Affordable Care Act (ACA) that requires the corporation to provide health insurance to its employees that includes coverage of those contraceptive methods. Finally, the decision reads, the requirement of such coverage is not narrowly tailored to further the government’s interest in “public health” and “gender equality.” While the government sought to provide comprehensive and seamless coverage of preventative health services to women and men alike, the Tenth Circuit, joined by Judge Gorsuch, essentially found that the religious beliefs of a for-profit corporation outweighed the corporation’s employees’ right to such coverage.

Two years after the Tenth Circuit’s Hobby Lobby decision, the court was again asked to weigh in on the ACA’s contraceptive mandate. In Little Sisters of the Poor v. Burwell, a three-judge panel rejected a challenge by a religious non-profit to the ACA’s accommodation process for organizations that had religious objections to the mandate. The process required an organization to deliver a form to the health insurance issuer or to provide notice to the Department of Health and Human Services. After such form was delivered or notice was given, the contraceptive coverage would be provided without payment from or facilitation by the objecting organization. Little Sisters of the Poor argued that providing notice or delivering a form, in and of itself, would substantially burden a sincerely held religious belief. The Tenth Circuit panel disagreed, but when the court decided not to hear the case en banc, Judge Gorsuch joined a dissent from that denial. The dissent claimed that the panel was “clearly and gravely wrong” in deciding that the ACA’s accommodation, which would remove religious organizations from the provision of contraceptive coverage while still guaranteeing such coverage, adequately protected the non-profit’s religious beliefs. Once again, Judge Gorsuch prioritized the religious beliefs of an organization over that organization’s employees’ rights to reproductive healthcare.

In another sign of Gorsuch’s hostility to reproductive healthcare, he penned a dissent in the denial of rehearing en banc of Planned Parenthood Association of Utah v. Herbert. In that case, a Tenth Circuit panel blocked the Utah governor’s decision to strip Planned Parenthood of state funding following the release of highly edited and misleading videos. The Tenth Circuit denied a rehearing en banc, but Judge Gorsuch dissented from the denial, indicating that he would likely have sided with the governor and allowed the state to defund Planned Parenthood.

In the wake of Trump’s election, anti-choice legislators at both the state and federal level feel newly emboldened by consolidated Republican control of the White House and Congress and the hope of a conservative-controlled Supreme Court. The next two years will likely see a renewed push to limit access to abortion and reproductive health care, with numerous bills to ban certain types of abortions and abortions at certain gestational thresholds, as well as bills to require extra steps for abortion facilities and doctors who provide abortions. The campaign against the Affordable Care Act’s contraceptive mandate (and, indeed, the campaign against the Affordable Care Act itself), will continue and intensify. If confirmed, Judge Gorsuch will almost certainly have an opportunity to weigh in on some of these issues, and perhaps to make good (or bad) on Trump’s campaign pledge. Abortion rights advocates, and their opponents, will no doubt be watching.