WASHINGTON, D.C. — Neil Gorsuch just gave Americans a glimpse into how the Supreme Court justice thinks about abortion, in a case that’s technically not even about reproductive rights.
The justices heard oral arguments on Tuesday in National Institute of Family and Life Advocates v. Becerra, a case that will decide whether to block a 2015 California law regulating crisis pregnancy centers on First Amendment grounds. These centers, usually Christian, provide pregnant women with services like ultrasound screenings, while trying to convince them to not get abortions.
Specifically, the law requires some of California’s 200-odd centers to post notices that disclose whether the facility has a medical license and that list information about the state’s family planning services, including access to low-cost abortion. Although Gorsuch never ruled on an abortion rights case during his 10-year tenure on Colorado’s 10th Circuit, he signalled his readiness to side with the crisis pregnancy centers during oral arguments.
“If it's about just ensuring that everyone has full information about their options, should the state free ride on a number of clinics to provide that kind of information?” Gorsuch asked an attorney representing California. “If you're trying to educate a class of persons about their rights, it's pretty unusual to force a private speaker to do that for you,” he added.
Just four days after the law went into effect, a number of the centers, including the anti-abortion group National Institute of Family and Life Advocates, sued California. They argued the state’s law undermines their mission to “encourage and support women in choosing to give birth to their unborn children” and thus, their right to free speech.
In response, California maintains that the law is a common-sense measure that ensures women who need family planning services know what’s available to them. Abortion rights activists also say the law helps fight crisis pregnancy centers’ deliberate attempts to deceive people into thinking that they provide abortions, just to give them misleading information about the procedure.
Later on during arguments, Gorsuch suggested that California may be better off policing centers’ speech by using anti-fraud law to evaluate whether the centers misled people. That approach wouldn’t entail forcing someone to speak, Gorsuch said, but rather place the burden of proving fraud on the government.
During his campaign, President Donald Trump had pledged to only appoint justices who would overturn Roe v. Wade, the landmark 1973 Supreme Court decision that made abortion a constitutional right. During his confirmation hearing, however, Gorsuch assured senators that he didn’t make any promises to Trump about his willingness to overturn the ruling. He wouldn’t say whether he believed Roe had been “decided correctly,” but he also stressed that the ruling “has been reaffirmed many times.”
Despite Gorsuch’s silence, little doubt exists about where the ultra-conservative justice stands on the issue. He’s considered a clone of the late Justice Antonin Scalia, who repeatedly ruled in favor of abortion restrictions. Gorsuch also wrote a book opposing assisted suicide and euthanasia — an issue that frequently goes hand-in-glove with opposition to abortion because anti-abortion activists campaign for protecting life “from conception till natural death.”
Beyond Gorsuch, however, much of the rest of the Supreme Court seemed split on the case. Justice Anthony Kennedy worried that California’s law could impede crisis pregnancy centers’ ability to post even the simplest of “pro-life” billboards, while Justice Stephen Breyer indicated that a trial would be necessary to fully gauge the law’s impact on the centers.
If California’s law gets struck down, Autumn Burke, one of the California legislators behind the law, told VICE News last week that she’s ready to “take another bite at the apple” and potentially push for more legislation around crisis pregnancy centers.
“Whatever happens with this case, I think, will be the starting point and then we’ll move forward from there,” Burke said. “We have no guarantees.
Cover image: Supreme Court Associate Justice Neil Gorsuch speaks at the Federalist Society's 2017 National Lawyers Convention in Washington, Thursday, Nov. 16, 2017. (AP Photo/Sait Serkan Gurbuz)