SUPREMELY PROBLEMATIC

Gorsuch’s Roe v. Wade defense shouldn’t distract from his support of discriminatory “religious freedom” laws

When South Carolina senator Lindsey Graham asked Neil Gorsuch today if the president had ever spoke with him about overturning Roe v. Wade—the 1973 Supreme Court decision that established a woman’s right to have an abortion in the United States—the judge replied, “Senator, I would have walked out the door. That’s not what judges do.”

It was an admission from Trump’s Supreme Court nominee at today’s Judiciary Committee hearing that caught observers’ attention, given Gorsuch’s well-known inclination to social conservatism. It likely also surprised anti-abortion voters who supported Trump during his campaign for the White House. In an interview with 60 Minutes’s Lesley Stahl conducted right after his Nov. 2016 victory, the then-candidate declared himself to be “pro-life,” and that any appointments he would make to the Supreme Court would be similarly “pro-life.”

Some senators were unconvinced by Gorsuch’s pronouncement. Richard Blumenthal of Connecticut asked the judge to expand: “If you fail to be explicit and forthcoming and definite in your responses, we have to assume you will pass the Trump litmus test.”

Gorsuch went on to more broadly defend the tradition of deference to judicial precedence than the specific ruling in Roe. “Part of the value of precedent—and it has lots of value—it has value in and of itself, because it is our history and our history has value intrinsically,” he said. “But it also has an instrumental value in this sense: it adds to the determinacy of law.”

“Once a case is settled, that adds to the determinacy of law,” he added. “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

While his words may not lend much comfort to advocates for women’s reproductive rights, they may present a spark of hope for progressives concerned about Gorsuch’s stance on other landmark Supreme Court decisions—in particular, Obergefell v. Hodges, handed down during the Obama presidency, which legalized same-sex marriage nationally. If Gorsuch is willing to accept precedence on Roe, it’s likely he’ll extend the same reasoning to Obergefell.

Still, Gorsuch’s appointment could pose challenges to these progressive causes, even if he does not directly vie for full walk-backs of respective decisions. As Garrett Epps wrote for The Atlantic, the judge’s legacy suggests some amenability to so-called “religious freedom measures,” which “erect strong legal protections for one and only one set of religious beliefs: opposition to LGBT rights and marriage equality.” As well as a woman’s right to choose.

Epps points to Gorsuch’s opinion in Burwell v. Hobby Lobby Stores, decided in the 10th Circuit Court of Appeals, as evidence. In his separate opinion, Gorsuch defended the owners of Hobby Lobby stores, who sought legal protection from providing contraception to employees as part of health-care packages. He boiled the Greens motives down to a simple desire for “guidance from their faith on these questions.” Epps notes that he did not extend the same courtesy—following one’s own conscience or value set—to Hobby Lobby employees.

“Some beliefs are religious, and protected,” Epps wrote of Gorsuch’s rationale in Hobby Lobby. “Other beliefs on the very same issues are secular, and should be brushed aside.”

Gorsuch’s words today may pose as temporary relief to those concerned about his possible impact on big-picture civil-rights law for women and members of the LGBT community. But his record indicates there’s a strong possibility his views on “religious freedom” may poke holes in what has already been achieved. Formalism alone is no protection from the influence of bias. After all, the famously (or infamously, depending on who you ask) conservative justice Antonin Scalia—the judge whom Gorsuch is on track to replace—was one of the most strident formalists of our time.

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