Why Neil Gorsuch's Women's Rights Record Is Scary

by Noor Al-Sibai
Chip Somodevilla/Getty Images News/Getty Images

When President Donald Trump announced on Jan. 31 that he's nominating federal Judge Neil Gorsuch to fill the Supreme Court seat vacated by the late Justice Antonin Scalia, he made it clear that he intended to stand by his campaign promise of appointing a staunch conservative to the nation's highest court. This new SCOTUS nominee's views are very much in the vein of Scalia's, and Gorsuch's record on women's rights and cases that pertain to them are serious cause for concern.

Although Gorsuch has never ruled on abortion rights specifically, he is best-known for presiding over the Burwell v. Hobby Lobby Stores case in the 10th circuit court, in which he ruled in favor of religious employers to deny birth control to employees whose insurance they cover, despite it being mandated by the Affordable Care Act. With religious objections as a primary cause for anti-contraception and anti-abortion rhetoric, Gorsuch's pro-religious viewpoints certainly don't bode well for the future of reproductive rights given the GOP's massive attacks on abortion rights during Trump's first week in office.

President Trump has said he intends to appoint a "pro-life" justice to the vacant seat on the Supreme Court. It doesn't appear that Gorsuch has made any remarks about abortion explicitly, but there's very little doubt that if and when abortion cases come before the Supreme Court, Gorsuch would rule against abortion rights and access.

Gorsuch's Hobby Lobby ruling is particularly notable not just in reference to birth control, but in his willingness to undercut a nationwide healthcare law based on religious principles. A repeal of the Affordable Care Act is hanging over the nation, as the potential for the Supreme Court to see an ACA challenge for the second time. Gorsuch's record with the ACA (and his strict reading of the Constitution, which was a main tenant of the first ACA case in the Supreme Court) doesn't bode well for healthcare as a whole, and the future of women without insurance in particular.

Beyond the reproductive implications from his Hobby Lobby opinion, Gorsuch may be a foe to the LGBTQ community as well. With his love of Scalia and his championing of arguably narrow-minded Christian values, Gorsuch's rulings in favor discrimination on religious grounds might be exactly what the GOP are looking for in Trump's SCOTUS nominee. In a statement regarding Gorsuch's nomination, Equality California's Executive Director Rick Zbur said that Gorsuch's record of religious rulings causes concern for the LGBT community:

Judge Gorsuch gained national attention for his opinions in two federal cases supporting an employer’s right to refuse to pay for contraception as part of employee health coverage if doing so violates the employer’s religious beliefs. That bodes ill for LGBT people who are facing an onslaught of laws sanctioning discrimination in the name of religious liberty.

Beyond Hobby Lobby, Gorsuch's other anti-LGBTQ ruling came down in an unpublished opinion in 2015, when he ruled that a trans inmate in a male prison was not constitutionally entitled to hormone treatment and reassignment. This specific ruling against trans women makes Gorsuch not only potentially against the reproductive rights of cis women, but also hostile to the rights of the most vulnerable women in the LGBTQ community.

Gorsuch's pro-gun views are so staunch that the National Rifle Association praised his nomination, which not only puts LGBTQ folks and children at risks in ways similar to the Orlando Pulse and Sandy Hook shootings, but also could seriously endanger women at risk of domestic violence as well. With strong ties between firearm access and domestic abusers emboldened by weapons, and cases regarding the gun rights-domestic abuse connection making it to the SCOTUS, Gorsuch's pro-gun rights stance is quite scary in itself.

One of the most immediately alarming aspect of Gorsuch's appointment came during his acceptance speech, when he outlined his views on the lawmaking abilities of Congress and the Supreme Court's role in the legal process:

I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives.

Implications from this worldview could vary anywhere from a vote against hearing the possible overturning of Roe v. Wade to siding with the Republican Congress on any number of laws that may seek to limit women's rights. In Gorsuch's view, Congress makes the rules and the Supreme Court enforces them, and he'd view any SCOTUS challenge to discriminatory laws with deference to Congress.

Despite some of the more explicitly right-wing portions of Gorsuch's record, he has ruled on more than one occasion in favor of the underdog — a glimmer of hope in the dim landscape of Trump appointees. His views about religious liberties aren't limited to Christians, and in one notable case, he ruled in favor of a Native American prisoner's use of a sweat lodge for religious purposes. He also wrote a dissenting opinion A.M. v. Holmes, a 10th circuit court case that ruled that a school was justified in arresting and strip-searching a 7th grader for burping loudly during class. In his dissent, Gorsuch wrote simply of the ills of policing minors, an opinion that could be less-than-disastrous for young women, and particularly those in juvenile detention:

So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded.

As the Supreme Court currently stands, Gorsuch's rulings might not be able to override the five left-leaning justices. Time must tell whether hard-lined Constitutional textualist and originalist beliefs could be either friend or foe to those looking to limit the rights of women of all races, ethnicities, religions or sexualities. Gorsuch's narrow legal interpretation won't allow for over-broad laws like Trump's Muslim immigration ban, but it might also spell trouble for women seeking gender-affirming hormones or abortions looking for the SCOTUS to champion their rights.