In naming Colorado-based appellate Judge Neil Gorsuch as his candidate to fill the late Justice Antonin Scalia’s seat on the U.S. Supreme Court, President Donald Trump said Tuesday night that he’d promised to nominate “the very best judge in the country,” someone who “respects laws” and “loves our Constitution.”
Yet Trump has also said he would appoint someone to the high court who would be willing to overturn the court’s 44-year-old landmark ruling that legalized abortion, saying during a debate that “will happen automatically in my opinion because I’m putting pro-life justices on the Court.”
In the wake of the nomination, Marcia Greenberger, co-founder of the National Women’s Law Center, did not mince words. “The nation is fast learning that to ignore even the most extreme of President Trump’s promises comes at our peril. So we take seriously his promise to nominate a justice who will vote to overturn Roe v. Wade; he told us to count on it, and we do,” she said. “On behalf of the women in this country, we take the president at his word, we will make no mistakes: The National Women’s Law Center opposes the nomination of Judge Neil Gorsuch.”
Gorsuch, who serves on the 10th U.S. Circuit Court of Appeals, is seen as a reliably conservative jurist, and he has had occasion to weigh in on issues involving women’s reproductive rights — notably siding with religious groups who opposed the Affordable Care Act’s contraceptive mandate. “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch wrote in a concurring opinion in the case Burwell v. Hobby Lobby Stores. The “ACA’s mandate requires [the plaintiffs] to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels [them] to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.”
More recently, Gorsuch disagreed with his colleagues’ decision to block Utah Governor Gary Herbert’s attempt to defund Planned Parenthood. Herbert’s actions were prompted by the release of video collected surreptitiously by anti-abortion activists that they claimed revealed Planned Parenthood officials engaging in the sale of aborted fetal tissue. (Similar attempts by officials in other states have also been blocked by the courts.)
Although he hasn’t written directly about abortion, Gorsuch has condemned assisted suicide and euthanasia in terms that could make defenders of reproductive rights wary: “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong,” he wrote.
Gorsuch’s record leaves open an important question for women: Would he uphold more than four-decades of precedent or would he vote to overturn Roe? And even if he would, does that mean he’ll have the chance to do so?
On January 22, 1973, the U.S. Supreme Court announced its decision in Roe v. Wade, which legalized abortion. “Roe’s basic holding is that states cannot criminalize abortion. That’s the basic holding. And so the fact that you can’t criminalize it means, necessarily, that you have a right to do it,” said Carol Sanger, a professor at Columbia Law School. “So, you have the right to choose; you can’t have that choice taken away from you.”
The high court has made some significant tweaks to Roe in the intervening years, but it has consistently held that although the word “abortion” isn’t in the country’s founding document, the right of women to seek abortion care is nonetheless protected by the Constitution under the due process and equal protection clauses of the 14th Amendment.