By Friday, Judge Neil Gorsuch, a deeply conservative and well-credentialed jurist, will likely be the nation’s newest Supreme Court justice — but only after a bitter partisan fight in the Senate.
Stiff Democratic opposition to Gorsuch is, in large part, a result of intense pressure from liberal groups and an activated anti-Trump base. Chief among those opposed to Gorsuch are abortion-rights groups, who believe Gorsuch would facilitate the erosion of reproductive rights.
Immediately after President Donald Trump announced Gorsuch’s nomination in January, prominent reproductive rights groups, including Planned Parenthood and NARAL Pro-Choice, launched a campaign to oppose Gorsuch.
“Neil Gorsuch is more conservative than Justice Scalia and will betray the rights of women, LGBTQ people, and workers,” NARAL President Ilyse Hogue said in a March statement. “Any deal with Republicans to put him on the bench would not only endanger a generation worth of progress but be politically stupid for Democrats.”
Abortion rights groups see the impact of Gorsuch’s confirmation as the most potentially devastating to reproductive rights in recent memory.
“There has never been a more important Supreme Court nomination,” Cecile Richards, president of Planned Parenthood of America, said in a January statement.
While Gorsuch has never ruled directly on abortion, he has decided cases concerning contraception and funding for Planned Parenthood, ruling that corporations have a religious right not to provide their employees with health insurance coverage for birth control, and voting to rehear a case that stopped the governor of Utah from defunding Planned Parenthood.
Since January, activists have pressured Democratic Senators to filibuster a procedural vote on Gorsuch, which, according to current rules, would block a confirmation vote. Fifty-five abortion rights groups signed a letter in mid-March urging senators to “do everything necessary to block” Gorsuch’s confirmation.
NARAL has organised actions and anti-Gorsuch protests across the country, petitioned the Senate, and delivered a “Filibuster Survival Kit,” which included shoe inserts, eye drops, and messages of support, to Democratic Sen. Elizabeth Warren, who pledged to filibuster.
During his confirmation hearing before the Senate Judiciary Committee, Gorsuch did say that Roe is precedent and “has been reaffirmed many times,” but managed to say very little else about his views on reproductive rights.
“Beyond acknowledging the existence of Roe v. Wade as precedent, for example, he didn’t disclose any further information about how he views that case or all of the cases that come from a similar understanding of the constitution as protecting personal, individual rights,” David Brown, a senior staff attorney at the Center for Reproductive Rights, told Business Insider.
But the White House has made its position on abortion quite clear. Trump has repeatedly promised to appoint pro-life justices to the Supreme Court — a move that he said would “automatically” reverse Roe v. Wade, the landmark 1973 decision establishing the right to an abortion. Reproductive rights groups called this assertion an “outrageous litmus test.”
As governor of Indiana, Vice President Mike Pence enacted some of the strictest antiabortion laws in the country, and, last week, Pence cast the tie-breaking vote on legislation that would cut funding for Planned Parenthood and other family planning clinics.
When Republican Sen. Lindsay Graham asked Gorsuch whether, in a meeting with the president, Trump had asked him to rule against Roe, Gorsuch responded that if he had been asked, he “would have walked out the door.”
“I have offered no promises on how I’d rule to anyone on any case,” he said, adding that he doesn’t believe in litmus tests for judges.
But Brown argues that Gorsuch could have done more to reject Trump’s test.
“He certainly didn’t refuse to accept the nomination until the president clarified that the litmus test wasn’t operative,” Brown said. “He could have taken that strategy if he wanted to, and he didn’t.”
But most reproductive rights advocates don’t fear for the short-term future of Roe v. Wade, given that both Supreme Court precedent and the majority of the American public support the right to abortion.
Pew Research Center polls have found that 59% of American adults today support the right to an abortion in general and 69% want the Supreme Court to uphold Roe — both numbers that have risen over time.
“We know that most Americans support access to contraception, access to birth control, the individual right to make the most important life decision, such as whether and when to have children,” Brown said.
Because Gorsuch would replace another conservative justice, Antonin Scalia, who passed away last year, the Court’s balance on reproductive rights issues will remain the same. But, given that three of the Court’s liberal justices are over 75 years old, Trump may get the chance to nominate a second justice to the Court.
Brown says the question of whether Roe will ever be reversed is thus one for the “medium to long term.”
But Gorsuch’s nomination comes amid an unprecedented wave of new anti-abortion legislation in states across the country.
Since 2010, 338 laws restricting access to abortion services have been enacted by state legislatures. These bills account for about a third of the total laws passed restricting abortion since Roe v. Wade was decided 44 years ago, according to the Guttmacher Institute.
Many of these laws, which include requirements that fetal tissue — whether from an abortion or a miscarriage — be cremated or buried, and that doctors investigate a woman’s “entire pregnancy history” before providing her with abortion services, are being challenged in federal court. Several will undoubtedly come before the Supreme Court over the next few years.
The first are those that ban abortions when a foetus can feel pain, and the second are those that impose strict requirements on abortion clinics and providers (activists call these Targeted Restrictions on Abortion Providers, or TRAP laws).
What abortion rights groups fear is that the Supreme Court will uphold these laws, gradually eroding the rights that Roe v. Wade protects — a method they call “death by 1,000 cuts,” Brown said.
“I am very pessimistic about it, and that’s because I’m thinking about the range of ways Roe can fall that would not require the Supreme Court to actually say, ‘We are overruling Roe v. Wade,'” Dawn Johnsen, a constitutional scholar at Indiana University and a former legal director of NARAL Pro-Choice America, told Business Insider in February.
She added: “We’ve seen the kinds of laws that would shut clinics, and ban abortions for reasons, and force women to be interrogated by their doctors — and that all could be upheld without the Supreme Court actually saying, ‘We’re overruling Roe v. Wade.'”
Rebecca Harrington and Allan Smith contributed to this report.
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