During the presidential campaign, then-candidate Donald Trump pledged to nominate Supreme Court justices who would vote to overturn Roe v. Wade, the landmark 1973 decision establishing the basic right to an abortion. Whatever views Judge Neil Gorsuch may hold on the issue of abortion, they are unlikely to have an immediate impact on the court and Roe: Last term Justice Anthony Kennedy joined the court’s four more liberal justices to strike down two provisions of a Texas law imposing restrictions on abortion in that state. But Gorsuch’s vote could become much more important if Trump were to also have the opportunity to name a replacement for any of the five justices in the majority in the Texas case – particularly Kennedy (age 80) or Justices Ruth Bader Ginsburg (who turns 84 this month) or Stephen Breyer (age 78).
How Gorsuch might actually vote in a challenge to laws restricting or prohibiting abortion remains unclear, because he has not ruled on any cases directly involving abortion during his ten years as a judge on the U.S. Court of Appeals for the 10th Circuit. In two cases in which he has been involved that tangentially involve abortion, his vote has split. In one case, a challenge to Oklahoma’s specialty-license-plate program by a group of plaintiffs that included an abortion rights group, he wrote an opinion that reinstated some claims by the group. But in a second case, involving the Utah governor’s efforts to cut off funding to Planned Parenthood, he would have sided with the governor and against Planned Parenthood. However, it is important to reiterate that the questions before Gorsuch in these cases did not actually involve the constitutionality of abortion.
Although Gorsuch’s opinions shed little light on his views on abortion, he has participated in two significant cases involving the intersection of religion and reproductive rights. In both cases, he sided with the plaintiffs, who had religious objections to the Affordable Care Act’s contraceptive mandate – a requirement that employers provide their female employees with health insurance that includes access to certain forms of birth control. In the first case, Hobby Lobby Stores v. Sebelius, a divided Supreme Court upheld the 10th Circuit’s ruling in favor of the plaintiffs. The Supreme Court did not rule on the merits of the plaintiffs’ claim in Little Sisters of the Poor v. Burwell, but it seems very likely that the plaintiffs would have prevailed (and Gorsuch’s position once again affirmed) but for the death of Justice Antonin Scalia on February 13, 2016, after the justices had agreed to review the case but before the oral argument.
In the Hobby Lobby case, the 10th Circuit considered a challenge to the contraceptive mandate by a for-profit company that was owned by a religiously devout family. In the Little Sisters of the Poor case, the plaintiffs were religious nonprofit groups who objected to the mandate, but to whom the government had offered an accommodation: As long as the non-profits notify the government of their objection, the government will then ensure that female employees receive the coverage guaranteed by the ACA, at no cost to the nonprofits.
The nonprofits argued that even completing the form demanded by the government to ensure that their employees received the contraceptive coverage violated their religious beliefs. Gorsuch joined a dissent (written by Judge Harris Hartz) from the full court’s denial of rehearing. The Hartz dissent acknowledged that the majority “does not doubt the sincerity of the plaintiffs’ religious belief,” but it complained that it also refused to “accept their statements of what that belief is” – specifically, that even filling out the forms violates their religious beliefs, by facilitating their employees’ access to contraceptives.
Gorsuch’s votes in these cases suggest that, if he is confirmed, he is likely to join the court’s other more conservative members in being sympathetic to claims that a government law or program violates the religious beliefs of an individual or a group. This could be important in upcoming cases involving, for example, religious objections to providing services for same-sex weddings. What it means for Gorsuch’s possible views on abortion is harder to predict, particularly because Kennedy – who provided the key fifth vote to strike down the Texas abortion regulations last term – was also part of the majority that voted in favor of Hobby Lobby.
Full story at SCOTUS blog.