During the presidential campaign, then-candidate Donald Trump pledged to nominate Supreme Court justices who would vote to overturn Roe v. Wade, the landmark 1973 decision establishing the basic right to an abortion. Whatever views Judge Neil Gorsuch may hold on the issue of abortion, they are unlikely to have an immediate impact on the court and Roe: Last term Justice Anthony Kennedy joined the court’s four more liberal justices to strike down two provisions of a Texas law imposing restrictions on abortion in that state. But Gorsuch’s vote could become much more important if Trump were to also have the opportunity to name a replacement for any of the five justices in the majority in the Texas case – particularly Kennedy (age 80) or Justices Ruth Bader Ginsburg (who turns 84 this month) or Stephen Breyer (age 78).

How Gorsuch might actually vote in a challenge to laws restricting or prohibiting abortion remains unclear, because he has not ruled on any cases directly involving abortion during his ten years as a judge on the U.S. Court of Appeals for the 10th Circuit. In two cases in which he has been involved that tangentially involve abortion, his vote has split. In one case, a challenge to Oklahoma’s specialty-license-plate program by a group of plaintiffs that included an abortion rights group, he wrote an opinion that reinstated some claims by the group. But in a second case, involving the Utah governor’s efforts to cut off funding to Planned Parenthood, he would have sided with the governor and against Planned Parenthood. However, it is important to reiterate that the questions before Gorsuch in these cases did not actually involve the constitutionality of abortion.

In Hill v. Kemp, the Oklahoma license plate case, the court of appeals – in an opinion by Gorsuch – agreed with the district court that it lacked jurisdiction to hear four claims that the state’s license-plate scheme favors groups supporting adoption and opposing abortion. But the court of appeals reversed the district court’s dismissal of two claims challenging the distribution of funds from the license-plate program to groups that provide counseling to pregnant women considering abortion; the abortion rights group alleged that the state discriminates against it by forbidding the disbursement of funds to groups that are also “associated with any abortion activities.”

The district court had ruled that the 11th Amendment, which generally bars lawsuits against a state, prohibited the lawsuit. But Gorsuch concluded that the relief that the group was seeking – a declaration that excluding it from receiving the funds because of its association with abortion rights violates the Constitution, and an order directing the state not to enforce the ban – is prospective and therefore not the kind of retrospective relief that the 11th Amendment would block it from seeking. Gorsuch declined to weigh in on whether the group “will ultimately be able to prove that Oklahoma’s statutory scheme is constitutionally infirm,” and he left open the possibility that the state could still try to show that a ruling for the group would in fact “reduce the amount of funds flowing to the state Treasury,” such that the 11th Amendment could still apply, but the court nonetheless allowed the claims to go forward.

Planned Parenthood v. Herbert arose when Utah governor Gary Herbert instructed state agencies to end their role as an intermediary transmitting federal funds to Planned Parenthood in the wake of allegations that the group (although not its Utah chapter) was illegally selling fetal tissue. Planned Parenthood of Utah challenged the directive, but a district court denied the group’s motion for a preliminary injunction. On appeal, a three-judge panel reversed that denial. The 10th Circuit itself then called for a vote on rehearing by the full court, without a petition for rehearing from the state.

Gorsuch dissented from the denial of rehearing. In his view, the three-judge panel should have accorded more deference to the district court’s finding that the governor had discontinued funding because of Planned Parenthood’s association with groups “accused of illegally selling fetal tissue” (which would not run afoul of the Constitution) rather than in retaliation for Planned Parenthood’s advocacy of abortion rights (which would violate the Constitution).

Gorsuch emphasized that his dissent was rooted in what he characterized as the majority’s departure from the rules governing preliminary injunction proceedings. “Preliminary injunction disputes like this one recur regularly and ensuring certainty in the rules governing them, and demonstrating that we will apply those rules consistently, to all matters that come before us, is of exceptional importance to the law, litigants, lower courts, and future panels alike,” he stressed.

Although Gorsuch’s opinions shed little light on his views on abortion, he has participated in two significant cases involving the intersection of religion and reproductive rights. In both cases, he sided with the plaintiffs, who had religious objections to the Affordable Care Act’s contraceptive mandate – a requirement that employers provide their female employees with health insurance that includes access to certain forms of birth control. In the first case, Hobby Lobby Stores v. Sebelius, a divided Supreme Court upheld the 10th Circuit’s ruling in favor of the plaintiffs. The Supreme Court did not rule on the merits of the plaintiffs’ claim in Little Sisters of the Poor v. Burwell, but it seems very likely that the plaintiffs would have prevailed (and Gorsuch’s position once again affirmed) but for the death of Justice Antonin Scalia on February 13, 2016, after the justices had agreed to review the case but before the oral argument.

The Hobby Lobby case arose when the Greens, the family that owns Hobby Lobby, objected to providing coverage for certain contraceptives that would prevent a fertilized egg from implanting; they believe that making those forms of birth control available to their female employees would make them complicit in abortion. The 10th Circuit ruled for the company, holding that, at least as applied to Hobby Lobby, the mandate violates the Religious Freedom Restoration Act, which bars the government from placing a substantial burden on a person’s ability to exercise his religion unless the government can show that the burden serves an important government interest and uses the least restrictive methods possible to advance that interest.

Gorsuch wrote a separate concurring opinion, in which he took the additional step of arguing that not only Hobby Lobby but also the Green family itself could bring a claim. He explained that the contraceptive mandate compelled the family to violate their beliefs “by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.” Using language that would presage his vote in the Little Sisters of the Poor case, he reasoned that Hobby Lobby “cannot comply with the mandate unless and until the Greens direct them to do so”; that personal involvement in facilitating the coverage violates their religious beliefs.

Gorsuch also discussed RFRA and government burdens on religion more broadly, making clear that he regarded the question before the court as purely one of religious freedom – not the reproductive rights of Hobby Lobby’s female employees. He emphasized that RFRA “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs.” Moreover, he added, in deciding whether a government action places a substantial burden on someone’s exercise of his religion, courts should steer clear of deciding whether the connection between the individual’s conduct and the actions that violate his religious beliefs is “too attenuated.” “Whether an act of complicity” in that violation, he continued, is too far removed “from the underlying wrong is sometimes a matter of faith we must respect.”

In the Hobby Lobby case, the 10th Circuit considered a challenge to the contraceptive mandate by a for-profit company that was owned by a religiously devout family. In the Little Sisters of the Poor case, the plaintiffs were religious nonprofit groups who objected to the mandate, but to whom the government had offered an accommodation: As long as the non-profits notify the government of their objection, the government will then ensure that female employees receive the coverage guaranteed by the ACA, at no cost to the nonprofits.

The nonprofits argued that even completing the form demanded by the government to ensure that their employees received the contraceptive coverage violated their religious beliefs. Gorsuch joined a dissent (written by Judge Harris Hartz) from the full court’s denial of rehearing. The Hartz dissent acknowledged that the majority “does not doubt the sincerity of the plaintiffs’ religious belief,” but it complained that it also refused to “accept their statements of what that belief is” – specifically, that even filling out the forms violates their religious beliefs, by facilitating their employees’ access to contraceptives.

Gorsuch’s votes in these cases suggest that, if he is confirmed, he is likely to join the court’s other more conservative members in being sympathetic to claims that a government law or program violates the religious beliefs of an individual or a group. This could be important in upcoming cases involving, for example, religious objections to providing services for same-sex weddings. What it means for Gorsuch’s possible views on abortion is harder to predict, particularly because Kennedy – who provided the key fifth vote to strike down the Texas abortion regulations last term – was also part of the majority that voted in favor of Hobby Lobby.

Posted in Nomination of Neil Gorsuch to the Supreme Court, A close look at Judge Neil Gorsuch’s jurisprudence, Featured

Recommended Citation: Amy Howe, Gorsuch on abortion, religion and reproductive rights, SCOTUSblog (Mar. 9, 2017, 2:18 PM), http://www.scotusblog.com/2017/03/gorsuch-abortion-religion-reproductive-rights/