Health

What the Supreme Court Nomination Means for All of Us

Here’s how Neil Gorsuch has ruled on birth control and trans rights, plus his thoughts on right-to-die laws.
February 1, 2017, 10:24pm
ZACH GIBSON / Getty Images

Last night, President Donald Trump announced (during a live press conference, for some reason) his nominee to fill the Supreme Court seat vacated by Justice Antonin Scalia's death. He named federal judge Neil Gorsuch, who was appointed to the 10th Circuit Court of Appeals in Denver, Colorado, by President George W. Bush in 2006. He's thought to be an "originalist," meaning he favors a strict, literal interpretation of the Constitution.

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Gorsuch is 49, which means that, if confirmed, he would be the youngest Justice since 1991 and could serve on the court for decades. In the shorter term, Gorsuch's rulings would affect access to healthcare at this critical juncture when the Affordable Care Act, birth control coverage, abortion access, and LGBT rights are all under fire.

While Gorsuch has never ruled on a case about abortion restrictions, Trump has repeatedly promised to nominate pro-life justices who would overturn Roe v. Wade, the 1973 Supreme Court case that acknowledged a woman's constitutional right to abortion. (The Supreme Court has reaffirmed that right multiple times in the last 43 years, including in the June 2016 ruling in Whole Woman's Health v. Hellerstedt, which determined that medically unnecessary restrictions on abortion access are unconstitutional.)

Here's what we do know about Gorsuch's views on health issues, based on his rulings.

He supports religious exemptions to full contraception coverage
In 2013, Gorsuch sided with the Christian owners of Hobby Lobby craft stores, who filed a lawsuit against the Department of Health and Human Services challenging the Affordable Care Act's contraception mandate (the requirement that any birth control method prescribed by a doctor be fully covered by insurance with no copay). Hobby Lobby's owners objected to covering certain forms of birth control on the grounds that it violated their religious freedom. Specifically, the privately owned company did not want to cover the morning-after pill or the copper IUD, both of which can prevent fertilized embryos from implanting in the uterus. This was unacceptable to the Hobby Lobby owners, who believe life begins at conception, not implantation (which is the medical standard).

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The 10th Circuit ruled 5-3 in favor of Hobby Lobby, saying this provision of the law violated the Religious Freedom Restoration Act of 1993. The government appealed but the Supreme Court later upheld the decision 5-4, ruling that privately owned or "closely held" companies with 50 or more employees are exempt from contraceptive coverage if it violates their religious beliefs.

Gorsuch ruled against the contraception mandate a second time, in September 2015, by joining the dissent in the decision not to re-hear the case of the Little Sisters of the Poor. The group, which runs assisted living facilities in two states, was already exempt from the ACA's contraception mandate because they're a nonprofit religious organization, but they objected to the exemption process, which didn't completely prevent their employees from getting covered birth control: The ACA requires non-profit groups to fill out a form telling their insurance provider if they object to contraceptives, then the insurance company has to make separate payments to cover the cost of birth control. The group said even submitting this form violated their religious beliefs. The Little Sisters of the Poor appealed but the Supreme Court punted it back down to the lower courts to decide.

He is swayed by lies about Planned Parenthood
After the release of deceptively edited videos in 2015, which falsely claimed that Planned Parenthood sold fetal tissue to medical researchers, Utah wanted to block women on Medicaid from getting healthcare at the provider. Utah's anti-choice Governor Gary Herbert issued an executive order to "defund" Planned Parenthood but a panel of three appeals court judges ruled the move was unconstitutional. Gorsuch wanted to re-hear the whole case in front of the entire 10th Circuit Court of Appeals; the court refused.

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Then he wrote a dissent that gave credence to Herbert's claims that Planned Parenthood had acted inappropriately, while the majority of his colleagues dismissed the governor's executive order as a political maneuver meant to punish the organization for its legal abortion advocacy. Gorsuch wrote: "it is undisputed that when the Governor announced his decision to discontinue funding he contemporaneously explained that his decision came in direct response to the videos. And it is undisputed, too, that the Governor was free as a matter of law to suspend the funding in question for this reason."

Gorsuch wrote this dissent despite the fact that Herbert admitted to the panel that the videos from the Center for Medical Progress did not involve Planned Parenthood affiliates in his state and that Utah Planned Parenthood locations don't even participate in fetal tissue donation. Herbert also "admitted that the accusations made by CMP in the videos regarding Planned Parenthood and its other affiliates had not been proven and indeed were false." The fact that Gorsuch wrote a dissent in this case worries some that he is an "anti-choice hardliner."

He has ruled against trans rights
Gorsuch joined a 2015 opinion rejecting arguments that the Oklahoma Department of Corrections violated the constitutional rights of a transgender inmate named Jeanne Druley by denying her medically necessary hormone treatment, gender confirmation surgery, and permission to wear feminine clothing at her all-male facility. In 2009, Gorsuch joined an opinion siding with an employer that barred a trans employee from using the women's bathroom until she had gender confirmation surgery citing "restroom safety."

Lambda Legal, an organization that protects civil rights for LGBT people, is concerned about Gorsuch not just in the cases of trans healthcare rights but also regarding LGBT rights in general. The group believes that so-called bathroom bill cases will come before the Supreme Court this spring and they're pursuing cases regarding employment discrimination against LGBT people. His support for religious freedom in cases like Hobby Lobby adds fuel to that fire.

He's opposed to right-to-die laws
Gorsuch wrote a 2009 book called The Future of Assisted Suicide and Euthanasia in which he said that "all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong." Assisted suicide is legal in six states (Colorado, California, Montana, Oregon, Vermont, and Washington) and Washington DC's mayor just signed a death with dignity law but opponents plan to challenge it. But Gorsuch views the practice as wrong, morally and legally. He wrote: "Once we open the door to excusing or justifying the intentional taking of life as 'necessary,' we introduce the real possibility that the lives of some persons (very possibly the weakest and most vulnerable among us) may be deemed less 'valuable,' and receive less protection from the law, than others." This language understandably also worries reproductive rights activists.