The Stolen Seat

By Dara E. Purvis

On January 31, Tenth Circuit Judge Neil Gorsuch was nominated to the Supreme Court seat most recently occupied by Antonin Scalia (and the seat, it is worth mentioning, for which President Obama nominated Merrick Garland on March 16, 2016). Since his nomination, Gorsuch has gone on what Politico described as a “charm offensive,” meeting with senators in advance of hearings scheduled for March 20.

It is likely that senators will ask Judge Gorsuch to describe his views on reproductive rights at those hearings, and just as likely that he will decline to answer with any substantive specificity. Judge Gorsuch has not authored any opinions that speak directly to his views on Roe v. Wade, nor has he expressed any clear opinion on broader questions of reproductive access.

Gorsuch did, however, write a robust defense of religious beliefs as outweighing women’s access to reproductive healthcare in a concurrence to the well-known Hobby Lobby case. The Supreme Court held in 2014 that Hobby Lobby, a family-owned for-profit business, itself held constitutional rights to the free exercise of religion, and that Affordable Care Act requirements regarding coverage of contraceptives violated a federal law called the Religious Freedom Restoration Act. Before the case reached the Supreme Court, the Tenth Circuit addressed the same question, reaching largely the same result. Judge Gorsuch wrote a separate concurrence, arguing that the owners of Hobby Lobby (founder David Green and his heirs) also individually held rights that they could vindicate in court.

The legal analysis of the relevant statutes is less important, however, if the reader is curious regarding how Judge Gorsuch views the significance of reproductive rights. His concurrence focuses upon the importance of the Greens’s belief that any participation in a health insurance program that provided comprehensive contraceptive care to female employees violated their religious beliefs. Gorsuch’s concurrence opens with strikingly dramatic rhetoric, noting “[a]ll 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.”

To be clear, the “wrongdoing of others” he refers to is women who use birth control methods that people such as the Greens believe might terminate a pregnancy. (Their opinion is scientifically and medically inaccurate, but Gorsuch omits that point in his focus on the importance of unquestioning respect of religious beliefs.) Those religious beliefs, Gorsuch notes, provide “guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.” Moreover, it is not the task of “secular courts” to question such beliefs once the Greens asserted that they were sincerely held beliefs. “Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect,” in the eyes of Judge Gorsuch.

Judge Gorsuch is certainly correct that courts avoid inquiry into the factual basis of religious beliefs, and do not substantively examine religious doctrine in order to approve of only certain dogma or denominations. But his focus on religion as unquestionably outweighing the rights of women is troubling at best. Moreover, his choice to sympathetically describe the Greens as wanting to avoid complicity in wrongdoing is problematically dismissive of the female employees deprived of reproductive healthcare by the Greens and Hobby Lobby.

In 2005, Gorsuch wrote an article for the National Review Online decrying “American liberals” as overly reliant on litigation “as the primary means of effecting their social agenda.” Gorsuch is certainly not alone in his skepticism of strategic litigation as a force for social change, although his description of the backlash to marriage equality is by now proven clearly inaccurate through the intervening decade. Again, however, Gorsuch’s rhetoric betrays a substantive opinion: that the rights asserted by progressives are political questions subject to the ebb and flow of political opinion, rather than fundamental rights explicitly protected from majoritarian rule by the Constitution. Gorsuch has described the right of religious people to impose their own views upon employees as “vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” The rights of women to comprehensive reproductive healthcare, as well as their fundamental right to control over their reproductive choices, apparently do not deserve similar vindication in Judge Gorsuch’s eyes.

Dara E. Purvis is Assistant Professor of Law at Penn State University. She is a member of the Board of Directors of Population Connection Action Fund.

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