What Trump’s Supreme Court nominee could mean for abortion

February 1, 2017, 2:31pm

President Donald Trump fulfilled his promise of appointing a “pro-life” justice to the Supreme Court Tuesday with his nomination of 49-year-old conservative judge Neil Gorsuch.

While Gorsuch has never ruled on an abortion case in his decadelong tenure as a federal appellate judge in Colorado, his past record on issues related to birth control, religious freedom, and euthanasia suggest he’ll be a strong anti-abortion voice on the bench.


One of Gorsuch’s most high-profile decisions concerned Hobby Lobby, a chain of arts and crafts stores that cited religious objections when refusing to provide contraception to employees under the Affordable Care Act. Joining an opinion by the 10th Circuit appeals court, Gorsuch sided with the religious argument in the case, which the Supreme Court later upheld. “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,” he wrote in his concurrence.

In a similar case involving the Roman Catholic charity Little Sisters of the Poor, Gorsuch again ruled that religious institutions did not have to provide birth control to their employees.

Gorsuch has also expressed views about protecting life at the end of it. In his book, “The Future of Assisted Suicide and Euthanasia,” which grew out of his doctoral dissertation at the University of Oxford, Gorsuch made a moral argument against physician-assisted suicide. “Human life is intrinsically valuable and intentional killing is always wrong,” he wrote.

If the Senate confirms Gorsuch, he will reinstate the conservative majority on the Supreme Court from its current 4-4 split between progressive and conservative justices. And as the youngest justice to sit on the bench in 25 years, Gorsuch will almost certainly face an abortion case during his lifetime position.


During his campaign, Donald Trump vowed to appoint a Supreme Court justice who would overturn Roe v. Wade, the landmark 1973 Supreme Court decision establishing abortion as a constitutionally protected right. But that’s easier said than done, even with the appointment of a pro-life justice like Gorsuch. Roe v. Wade has been settled law, with strong legal precedent, for decades and upheld a dozen times. The landmark 1992 case Planned Parenthood v. Casey, reaffirmed a person’s right to terminate a pregnancy before viability as “a rule of law and a component of liberty we cannot renounce.” There’s not much wiggle room there. Clarence Thomas is also the only current justice who has said Roe should be overturned — although Antonin Scalia joined Thomas before his death. Even if a challenge to Roe v. Wade made its way through the states and up to the Supreme Court, it’s highly unlikely the case would get overturned.

But Gorsuch and a conservative-majority Supreme Court can erode abortion and reproductive rights in plenty of other ways, even without the full repeal of Roe v. Wade. Dozens of anti-abortion laws are cropping up in states that, if challenged, the Supreme Court could uphold. For instance, Ohio Gov. John Kasich recently signed a ban on abortions after 20 weeks. Although about a dozen other states have passed similar laws, 20-week bans have been challenged in federal courts and found unconstitutional in at least two states. If a similar challenge makes its way to the Supreme Court — and the justices decide to hear it — a conservative majority would likely uphold it.


In hopeful anticipation of future decisions, anti-abortion voices immediately praised Gorsuch’s appointment. Marjorie Dannenfelser, president of the Susan B. Anthony List, a national nonprofit that seeks to end abortion, called him an “exceptional choice” and “a distinguished jurist with a strong record of protecting life and religious liberty” in her statement.

National Right to Life, the organization responsible for drafting many of the anti-abortion state and federal recently introduced, also praised Trump’s nominee.

“Pro-life legislators and activists nationwide can have high confidence that as a Supreme Court justice, Neil Gorsuch will not join those who have nullified past efforts to protect the lives of unborn children and other vulnerable humans,” Douglas D. Johnson, senior policy advisor for National Right to Life, said in a statement.

House Speaker Paul Ryan, a staunch anti-abortion advocate himself, also praised Gorsuch for his “strong commitment to life” after Trump announced the nomination.

Reproductive rights’ advocates, meanwhile, didn’t hesitant to condemn the Colorado judge. “We have a message for members of the Senate on Judge Gorsuch: Opposing Roe v. Wade is a disqualifier,” Planned Parenthood’s statement read. The group’s president, Cecile Richards, also sent a letter to Senate leaders urging them not to confirm a justice who would threaten reproductive rights.

“Gorsuch represents an existential threat to legal abortion in the United States and must never wear the robes of a Supreme Court justice,” Ilyse Hogue, national nonprofit NARAL Pro-choice America President, said in a statement. “With a clear track record of supporting an agenda that undermines abortion access and endangers women, there is no doubt that Gorsuch is a direct threat to Roe v. Wade and the promise it holds for women’s equality.”

David S. Cohen, a professor at Drexel’s Kline School of Law and member of the Abortion Care Network Board, also said in a statement that all signs point to Gorsuch being an anti-abortion justice. “He is devoted to originalism, has decried using the courts for social change, and has protected the rights of religious Christians to impose their views on everyone else,” he said. “Whether he will vote to overturn Roe v. Wade is unknown, but the signs don’t point in the right direction.”

Senate Democrats hinted that they will try to block Gorsuch’s nomination. But anti-abortion groups vowed to fight back as well. “Should pro-abortion Democratic senators choose to filibuster this immensely qualified nominee, they do so at their own political peril,” Susan B. Anthony List’s Dannenfelser said.

Follow Olivia Becker on Twitter: @oliviaLbecker

Editor’s note: A previous version of this article stated that Planned Parenthood had not directly addressed Gorsuch’s nomination. We’ve updated it with a statement from Jan. 31.