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What Neil Gorsuch’s Confirmation Could Mean for Women

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.

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.

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*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.

[Photo Credit: Senator Claire McCaskill / Creative Commons]
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