Neil Gorsuch’s View on Reproductive Rights

Our examination of Justice Gorsuch’s record shows that he would likely vote for his personal views over scientific facts.  We also believe that he will favor the power of corporations over personal liberty.  We believe this because:

  • Justice Gorsuch prioritizes the religious rights of corporations over the liberty of individuals.

  • He deliberately chooses narrow interpretations of existing precedent to support his personal views.

  • His constitutional interpretation is textualist and originalist, based on his personal interpretation of its past  meaning and discourages the courts from applying the spirit of the law to new situations, as was done with Roe v. Wade.

  • He believes in the sanctity of life for the sake of life, a firm stance which stands in opposition to abortion rights.

Detailed Analysis

Hobby Lobby vs. Sebelius

In this case, the U.S. Supreme Court demonstrated a willingness to favor the religious freedom of “closely held corporations” over individual rights based on gender regarding employee coverage of contraception as required by the Affordable Care Act. Gorsuch has shown that his thinking is in line with this position.  In a concurring 2013 opinion to the decision from the United States Court of Appeals for the 10th District on the case, Gorsuch, wrote that “the owners of Hobby Lobby and Mardel, are the human beings who must direct the corporations to comply with the [contraceptive-coverage regulation] and do so in defiance of their faith.” 

Also in this concurring opinion, he wrote, “no one before us disputes that the [regulation] compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.” This statement is factually untrue and dangerous to a woman’s access to contraception because it misidentifies the covered drugs and devices as abortifacients. The authoring judge, Judge Tymkovich points out in the decision, “there are, indeed, factual disputes regarding the actual potential of the challenged drugs to destroy a fertilized human egg.” At that time, the Affordable Care Act only required company’s health insurance to cover FDA-approved contraception, which are not “abortifacients,” or medications that cause abortions and the primary objection of the plaintiffs. This statement indicates that Gorsuch’s jurisprudence is biased more towards theology and protection of religious freedom than medical facts.

Planned Parenthood vs. Casey

In this case, the U.S. Supreme Court ruled in favor Planned Parenthood to ensure that states could not create any restrictions that placed an “undue burden” on a woman’s access to abortion. The Court’s decision was in part based on the stare decisis (legal precedent) set by Roe v Wade and the individual liberty and autonomy the 14th Amendment promises women. In his book, “The Future of Assisted Suicide and Euthanasia,” Judge Gorsuch wrote that he doesn’t believe that the argument that individual liberty  should be upheld because the Planned Parenthood victory was, “upholding the abortion right largely because of the need to protect and respect prior court decisions in the abortion field.” In other words, it was only a decision based on law that was there, because it was there. He’s dismissing the sentiments Justices’ O’Connor, Kennedy, and Souter expressed in their decision that  “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Gorsuch further discredits an individual’s right to choose anything personal or intimate with a “slippery slope” argument.  He suggests that, if the Court interprets the Constitution as permission for individual liberty, then any choices about one’s existence - including intimate and personal decisions - can be made by individuals. It’s almost as if he’s using the Planned Parenthood vs. Casey case as a way to reason that the Constitution does not guarantee an individual’s free will. This is a dangerous point of view not only for reproductive rights. If he becomes a U.S. Supreme Court justice, Gorsuch could use his belief that the ruling for Planned Parenthood was only because of stare decisis - legal precedent - to overturn any case that uses Roe v. Wade as a legal precedent, including Planned Parenthood vs. Casey.

Planned Parenthood Association of Utah v Herbert

In this case, Utah Governor Gary Herbert (R.) attempted to withdraw federal funds from Planned Parenthood Association of Utah after asserting, based on false claims, that the clinic was selling fetal tissue obtained from abortions. The repeal of funds was overturned by a three judge panel on the grounds that the action was unconstitutional. Following the ruling, Judge Gorsuch attempted to convene a hearing with the full appeals court (as opposed to a randomly selected panel of three judges) to review the decision in an en banc hearing.

This was extremely unusual as neither party in the case requested an en banc review, and these are typically reserved for only highly controversial cases in which multiple judges reach very different conclusions based on different interpretations of the law. While this en banc review was not granted, Gorsuch did go on to write a dissenting opinion on the case, indicating the extent to which he will go to bring his strong personal opinions on this case, which would have supported the defunding of this Planned Parenthood Association.