WASHINGTON — President Donald Trump’s pick for the Supreme Court, Neil Gorsuch, has consistently made conservative-leaning rulings during his 10 years as a judge on the US Court of Appeals for the 10th Circuit. At 49, Gorsuch is the youngest Supreme Court nominee since Justice Clarence Thomas and could potentially rule on decisions affecting abortion policy and birth control for decades, if confirmed.
Gorsuch ruled in favor of Hobby Lobby in the famous 2013 birth control case, and he has also written about the “right to life” (in the context of assisted suicide) — though he has never issued a ruling related to abortion rights.
Still, anti–abortion rights groups cheered his nomination on Tuesday night, commending Trump for keeping to his promise to nominate "pro-life justices" to the Supreme Court.
"President Trump has made an exceptional choice in nominating Neil Gorsuch to carry on the legacy of the late Antonin Scalia," Marjorie Dannenfelser, president of the anti–abortion rights group Susan B. Anthony List said in a press conference shortly after Tuesday's announcement.
Protesters outside the Supreme Court and abortion-rights advocates said that Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, should be a top issue for senators considering his nomination Tuesday night.
"We have a message for members of the Senate on Judge Gorsuch: opposing Roe v Wade is a disqualifier," Planned Parenthood President Cecile Richards said Tuesday. "Nominees to the highest court in the land must make clear that they will protect our fundamental rights — including the right of a woman to control her body."
Although Gorsuch has apparently never expressed a public opinion on Roe v. Wade, Trump has said that whoever he nominated to the court could overturn the landmark case.
Gorsuch’s nomination is still not likely to change the court’s balance on abortion issues or necessarily threaten Roe v. Wade, as he is replacing Scalia — a solid vote against abortion rights. Should Trump have the opportunity later to choose a nominee to replace a justice who voted in favor of abortion rights, however, then Roe’s fate could be in jeopardy. Justices have been known to surprise the presidents who appoint them, but the Trump administration has said that choosing justices who will vote to restrict abortion rights is a priority.
Here are Gorsuch's writings on birth control and abortion:
Gorsuch twice sided with opponents to the the Affordable Care Act's mandate requiring insurance to cover any FDA-approved contraceptive methods (besides abortion-inducing pills), arguing that it violated the religious freedom of employers who oppose contraception on religious grounds.
In 2015, he joined the 10th Circuit Court of Appeals’ opinion in the case Little Sisters of the Poor v. Burwell, which challenged the policy and called the contraception mandate a "clear burden" that would "not long survive."
And in 2013, Gorsuch ruled in favor of the Hobby Lobby chain of craft stores in the case of Burwell v. Hobby Lobby, which determined that for-profit corporations were subject to the Religious Freedom Restoration Act (RFRA), and that they could refuse to offer their employees birth control coverage due to religious objections. Before this decision, only religious nonprofits were granted exceptions to the mandate.
Gorsuch wrote a separate opinion, concurring with the majority, in which he argued that it was not the place for the courts or the government to require individuals to violate their personal moral codes, which in the Hobby Lobby owners' case were dictated by their religion.
“For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability,” Gorsuch wrote.
He also argued that Congress had purposefully “structured RFRA to override other legal mandates,” including laws created by Congress itself, “if and when they encroach on religious liberty.”
Gorsuch’s opinion went further than the court’s majority ruling, focusing on ensuring legal protections under RFRA specifically for the family who owns the Hobby Lobby company. Three other judges on the court agreed with him on that point, but a majority of the court did not rule on that question since it held that the company itself could seek protection under RFRA.
Gorsuch has never written a direct opinion on abortion, but he has made references to issues that advocates believe shed light on his views.
Bot advocates in favor of and opposed to abortion rights have taken an argument from Gorsuch's book The Future of Assisted Suicide and Euthanasia as potentially applying to abortion: “the idea that human life is intrinsically valuable and that intentional killing is always wrong.”
In the book, he discusses Planned Parenthood v. Casey, a 1992 Supreme Court case that reaffirmed the constitutional right to obtaining an abortion without "undue burden" imposed by state regulations. Casey sought to “shore up the reasoning behind Roe’s result,” Gorsuch wrote, adding that in doing so the ruling stressed “the importance of ‘reasoned judgment’ in assessing whether to continue recognizing the constitutional right to abortion.”
Ema O'Connor is a politics reporter for BuzzFeed News and is based in Washington, DC.
Contact Ema O'Connor at firstname.lastname@example.org.
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