Neil Gorsuch (pictured), US president Donald Trump’s nominee for the vacancy on the country’s Supreme Court, is a consistently conservative judge who would enter the court at a critical moment for reproductive rights.
Though Gorsuch, a federal judge on the 10th US Circuit Court of Appeals, has never ruled on an abortion rights case, his record shows him to be hostile to women’s healthcare and willing to give broad leeway to institutions that want to discriminate against them.
Women will be affected by every decision that comes out of the next iteration of the Supreme Court, of course, whether the cases deal with voting rights, labour issues, immigrant rights, civil liberties, criminal justice or any other area of law. Because women make less money than men, shoulder the bulk of home and family responsibilities, and have less access to traditional spheres of power, they are in fact particularly dependent on legal protections, and they will likely be disproportionately impacted by any harm that comes from the court’s decisions.
Nowhere is that clearer than in the field of public health. Anti-abortion advocates believe Trump and his pick will lead their fight to overturn the 1973 landmark Supreme Court decision in Roe v. Wade, a strong, if imperfect, safeguard of abortion rights. A recent report from the Center for Reproductive Rights in New York found that 22 states would be likely to roll back abortion rights immediately if Roe were overturned.
Some of these states already have anti-abortion laws on the books that predate Roe (that means they’re currently unenforceable but would become effective if Roe fell) or laws passed specifically to go into effect in the event that Roe gets axed.
Still, overturning Roe would probably require a state legislature willing to pass a blatantly unconstitutional ban, years of court battles, and five justices willing to undo clear Supreme Court precedent on an issue that hasn’t seen a broad shift in public opinion. More Americans currently support Roe than ever before.
That means there are other, less drastic battles for women’s healthcare access that will probably come up first. The anti-abortion set has its eyes on Roe, but conservative state legislatures are reliable incubators of laws that incrementally roll back rights and access to reproductive healthcare.
These laws make the Supreme Court docket a whack-a-mole of restrictions that seek to make it more inconvenient, expensive and degrading to get a constitutionally protected healthcare procedure. Gorsuch may end up ruling on laws that ban abortions after a certain pre-viability gestation threshold, force abortion providers to get admitting privileges at nearby hospitals, or require abortion clinics to abide by unnecessary building codes. Several states already have laws like these percolating through the courts.
“More Americans currently support Roe versus Wade than ever before”
Justice Stephen Breyer’s June 2016 opinion in Whole Woman’s Health v. Hellerstedt, a Supreme Court decision that struck down two Texas regulations on abortion providers, made a clear statement that these laws restricted women’s access to abortion care without solving any public health problem, as anti-abortion advocates claimed they did. Without Supreme Court justice Antonin Scalia, who died last February, the decision came down with a 5–3 split.
It’s notable that another anti-abortion vote wouldn’t have changed the outcome of this case, which many hailed as the most significant abortion case set before the Supreme Court in decades. This is reason to hope for evidence-based decisions on women’s healthcare in the future court, no matter how Gorsuch ends up acting on abortion cases.
Gorsuch is also likely to face cases that put contraceptive access and insurance coverage on the chopping block. Whether or not Republicans follow through on their promise to repeal the Affordable Care Act (ACA), they are likely to continue trying to make birth control and abortion care more expensive and difficult to get. Just last week, they passed a House of Representatives bill that would discourage insurance providers from covering abortion in their plans.
Gorsuch came down on the side of religious beliefs in the notorious case of Sebelius v. Hobby Lobby, Inc, in which the craft chain’s owners won the right to deny their employees contraception coverage despite the ACA’s mandate. In the 10th Circuit’s ruling, Gorsuch attributed to the company the capacity for spiritual reverie. The ACA forced Hobby Lobby to “violate their religious faith” by covering birth control, which “their religion teaches to be gravely wrong”. Gorsuch described birth control drugs and devices as having the effect of “destroying a fertilized human egg” – a claim that is demonstrably false, even in most cases of emergency contraceptive use.
Gorsuch also joined a dissenting opinion when Little Sisters of the Poor v. Burwell, another challenge to the ACA’s contraceptive mandate, came before the 10th Circuit. The dissent called the mandate a burden to the plaintiffs’ free exercise of religion. In a 1996 brief in a case about physician-assisted suicide, Gorsuch wrote that requiring public hospitals to provide abortions was an instance of “the courts [feeling] free to override the conscience of health care providers”.
In other words, Gorsuch believes that doctors, corporations, and individuals should be able to discriminate against women, preventing them from accessing necessary healthcare, on account of any personal whim they claim to the court.
More recently, Gorsuch wanted to rehear, and likely reverse, a 10th Circuit panel decision blocking Utah’s attempt to defund Planned Parenthood, a charity that provides free or subsidised family planning services to people on low incomes. The movement to defund Planned Parenthood by preventing patients from using Medicaid dollars on non-abortion services there has been based on false claims of illegal fetal tissue sales. Gorsuch gave credence to Utah governor Gary Herbert’s claims of such trafficking, which he proffered without any supporting evidence, instead of dismissing them as a political manoeuvre, as a majority of his fellow justices did.