What Neil Gorsuch’s Confirmation Could Mean for Women

This post is part of a series produced in partnership between the Ms. Blog, the Fuller Project for International Reporting and PRI’s Across Women’s Lives.


As a battle over the Supreme Court nominee heats up, with Democrats preparing to filibuster, questions have arisen over Judge Neil Gorsuch’s record on religious freedom, equal protection and the role of precedent. With the showdown looming and Republicans gearing up to change the rules for filibustering Supreme Court nominees, many advocates are raising concerns about how Gorsuch’s legal philosophy could have consequences for women’s rights.

Senator Claire McCaskill / Creative Commons

The judge’s tendency to favor religious freedom rights over women’s access to contraceptives is well-documented in his rulings in two cases centering on organizations that claimed the right to exclude certain types of birth control from employees’ health coverage based on religious beliefs. A lesser-known case that could have affected funding for Planned Parenthood’s Utah affiliate caused Gorsuch to make an unusual procedural move, and this hints at his inclinations on issues affecting women’s health, advocates say.

After a series of heavily edited videos purporting to show Planned Parenthood employees profiting off the sale of fetal tissue were released in 2015 by a nonprofit espousing anti-abortion views, the governor of Utah, Gary Herbert, publicly urged the state’s Department of Health and its legislators to move to defund Planned Parenthood’s Utah affiliate. There was just one problem—the videos were later debunked, and two activists who recorded them undercover are now charged by the state of California with 15 felony counts for recording confidential communication without consent.

Last year, a three-judge panel of Gorsuch’s 10th Circuit Court of Appeals in Denver faced the case brought by Planned Parenthood in Utah over the governor’s attempt to defund their operations. That panel ruled that the governor of Utah could not move to defund Planned Parenthood in his state. But Gorsuch saw the issue differently and called for a rehearing before all the judges, arguing the court should have given deference to the governor and his motives.

“Gorsuch’s insistence that the case be heard en banc, even after his colleagues voted against that request, is concerning as it seems that the trigger issue for him may be women’s reproductive rights generally, and not only when paired with a religious freedom argument,” said Margaret Drew, associate professor of law at the University of Massachusetts Law School.

The underlying legal philosophy that leads Gorsuch to such opinions is much more complex than just originalism, a theory that judges should strictly interpret the constitution and statutes based on their intended meaning at the time they were written, scholars say.

Some argue that the philosophy laid out in Gorsuch’s 2006 book on physician assisted suicide and euthanasia reveals a more nuanced take on how he may approach an abortion case. Gorsuch’s book espouses a philosophy called the “inviolability of life” principle, which asserts that it is wrong to intentionally harm something with intrinsic value, like a human life, according to Paul Kelleher, associate professor of bioethics and philosophy at the University of Wisconsin-Madison. This, says Kelleher, means it is possible that Gorsuch could pose a direct risk to abortion rights.

Given that philosophy, “For us the question mark is, does Neil Gorsuch think that a fetus is a human life worthy of protection under our laws?” Kelleher said.

In a footnote in the book, titled “The Future of Assisted Suicide and Euthanasia,” Gorsuch notes:

Nor do I seek here to engage the abortion debate. Abortion would be ruled out by the inviolability-of-life principle I intend to set forth, if, but only if, a fetus is considered a human life. The Supreme Court in Roe, however, unequivocally held that a fetus is not a ‘person’ for purposes of constitutional law.

But, said Kelleher, Gorsuch’s adherence to the inviolability of life theory gives reason to be concerned. “I’m not saying he will overturn Roe v. Wade. We don’t have evidence to believe that. But we do have evidence to be justifiably concerned that he will, and he will do so by invoking this quite radical moral theory of his.”

Anti-choice groups like Susan B. Anthony List, the National Right to Life Committee, Concerned Women for America and others have vociferously supported Judge Gorsuch’s nomination, citing his rulings and a passage from his 2006 book on assisted suicide. They called him ”a defender of the most basic human rights” in a letter to the U.S. Senate. Several of the groups, including the ones named above, did not respond to repeated requests for interviews.

During his confirmation hearings, Gorsuch affirmed that the determination in Roe v. Wade that a fetus is not a person is “the law of the land.” He referred to the case as “precedent of the United States Supreme Court,” and added that “it has been reaffirmed many times.”

Advocates do not take comfort in his words, however. Sarah Lipton-Lubet, vice president at the National Partnership for Women & Families, an advocacy organization, says context matters. “President Trump has told us the kind of justice Judge Gorsuch will be. The groups who selected him have told us what kind of justice he’ll be. Judge Gorsuch’s record tells us what type of justice he’ll be…and that’s the wrong justice for the country.”

During the campaign, Trump vowed to appoint pro-life justices who would overturn Roe v. Wade and send abortion rights back to the states, and he consulted the Heritage Foundation and the Federalist Society—both conservative groups—to compile his list of potential Supreme Court nominees.

While he may have a conservative record, many scholars, students and law clerks across the political spectrum have praised Judge Gorsuch’s integrity, temperament and competence.

Two of Gorsuch’s former law clerks stress that he takes each case as it comes, evaluating the facts that apply to each one. When it comes to his views on religious freedom arguments, “the judge did not try to impose any personal preferences or share his personal preferences,” said Allison Turbiville, who clerked for Gorsuch from August 2015 to August 2016.

And Harvard Law School professor Laurence Tribe, a former mentor of President Obama, told the Harvard Gazette in February, “Gorsuch is as smart as he is conservative, and he writes elegantly. He’s a brilliant, terrific guy who would do the court’s work with distinction.” In March, the American Bar Association awarded him its highest rating for qualification to serve on the court.

Even the National Association of Women Lawyers, which opposes Gorsuch’s nomination due to his record on issues that impact women and women’s rights, said in a March letter to the Senate Judiciary Committee that the organization’s committee “finds that Judge Gorsuch has demonstrated the intellectual and analytical talent, judicial temperament and professional demeanor required to serve on our Nation’s highest court,” although it determined that he is not qualified under NAWL’s standards for commitment to issues that affect women.

Gorsuch’s record and writings on issues like access to contraception and life indicate that while he may be qualified, the underlying judicial philosophy laid out in his book and his legal opinions could impact women’s rights.

“The interpretive approach that Judge Gorsuch brings has very often resulted in individuals losing discrimination claims and claims for access to reproductive health care and other protections,” said Suzanne B. Goldberg, a professor at Columbia Law School. “What we can say from a broad view of Judge Gorsuch’s opinions is that he takes a consistently narrow view of the law’s protections for civil rights and other issues of great importance to women,” she added.

“Every justice on the Supreme Court makes a difference,” said Amy Matsui, senior counsel and director of government relations at the National Women’s Law Center. “Their decisions will have an impact on generations of women and girls.”

Natalie Schreyer is a contributor to the Fuller Project for International Reporting. Based out of Washington, D.C., she has a passion for in-depth reporting and holds a master’s degree in journalism from American University. Her work has appeared in Mother Jones, Newsweek, Wired, the Charleston Gazette-Mail, and more.

The Fuller Project for International Reporting is a global team of journalists, photographers and filmmakers and researchers, dedicated to in-depth and independent reporting—with an emphasis on the traditionally overlooked and underrepresented role of women in media. Their articles regularly appear in The New York Times, Foreign Affairs, CNN, TIME, VICE, ELLE, Newsweek, The Guardian and other major publications. 

Public Radio International is a global non-profit media company focused on the intersection of journalism and engagement to effect positive change in people’s lives. Across Women’s Lives is their vertical dedicated to telling the stories of women and girls changing their worlds and ours. You can add your voice using the hashtag #womenslives.

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About

Natalie Schreyer is a freelance journalist and executive producer of the forthcoming documentary film “And So I Stayed.”