During confirmation hearings for Judge Neil Gorsuch, President Trump’s pick for the Supreme Court, on March 21, the nominee touched on some points regarding his stance on issues directly affecting women, such as reproductive rights and sex discrimination in the workforce.
Sen. Chuck Grassley, the chair of the Senate Judiciary Committee, asked Gorsuch whether he believed that the case of Roe v. Wade, which guaranteed the constitutional right to safe and legal abortion throughout the United States, was decided correctly.
He replied: “I would tell you that Roe v. Wade, decided in 1973, is the precedent of the United States Supreme Court. It has been reaffirmed. The reliance interests and considerations are important there. And all the other factors that go into analyzing precedent have to be considered. It is a precedent of the United States Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the United States Supreme Court, worthy of treatment as precedent, like any others.”
Sen. Dianne Feinstein, the ranking member of the Senate Judiciary Committee, followed up with a question of her own about Roe v. Wade, asking, “Do you view Roe as having super-precedent?” Gorsuch answered, “Senator, I — I — as ‘super-precedent,’ I —”
“In numbers,” Feinstein clarified. “Forty-four cases.”
“It has been reaffirmed many times,” Gorsuch said again. “I can say that, yes.”
But the answer was hardly reassuring to reproductive rights advocates.
In a statement shortly after Gorsuch spoke on Roe v. Wade, president of NARAL Pro-Choice America Ilyse Hogue said: “Neil Gorsuch failed the first test laid out for him by deflecting on his position on Roe v. Wade. Justices Roberts and Alito once issued similar, unacceptable nonanswers themselves. Gorsuch’s record gives us all the clues we need to conclude that he will be the justice that Trump promised — one who will vote to overturn this popular precedent. The stakes are too high.”
Hogue added: “Senators must not let our nation’s highest court be co-opted by a judge handpicked to fulfill President Trump’s dangerous and dystopian agenda. A ‘no’ vote is not enough for the Americans who stand to lose so much if Judge Gorsuch makes it to the bench. Senate Democrats must filibuster this nominee.”
The National Institute for Reproductive Health (NIRH) also issued a release, reminding members of the press that Trump made talk of criminalizing abortion a centerpiece of his campaign for the presidency. NIRH called Gorsuch the “linchpin” of Trump’s plan to overturn Roe v. Wade and fulfill his campaign remarks regarding the need to “punish” women who have abortions.
NIRH and the SIA (Self-Induced Abortion) Legal Team, a consortium of organizations that fights for women’s rights to a safe abortion if they aren’t able to have one in a clinical setting, point out that the criminalization of women who have an abortion is already happening. The organizations note that there have been 17 known arrests or convictions connected to alleged self-induced abortion since 2005 and that multiple states have explicit bans on self-induced abortion and there are at least 40 different types of laws that could be used against someone who self-administered an abortion or helped another person to carry out an abortion.
And Gorsuch’s answer regarding the precedent set by Roe v. Wade does little to address the increasingly hostile landscape for reproductive rights in the states.
In an op-ed published on Monday in Law360, Priscilla Smith, a clinical lecturer at the Yale Law School and the director and senior fellow of the Program for the Study of Reproductive Justice, points out that Gorsuch is a textualist and original-application originalist when it comes to interpreting the Constitution, meaning that he looks to apply the terms of the Constitution the way it would have been understood when it when it was first drafted almost 150 years ago.
Smith explains that an “originalist” mindset was also utilized by the late Justice Antonin Scalia, who believed that such a reading of the Constitution called for an overturn of Roe v. Wade. As such, Smith notes, you can expect the same from Gorsuch, no matter how much he acknowledges that there is indeed precedent for upholding Roe v. Wade.
Abortion rights weren’t the only topic Gorsuch addressed during the hearings.
Asked about allegations made by his former law student who claimed that the Supreme Court nominee implied to his legal ethics class at the University of Colorado Law School that women manipulate companies to receive maternity leave benefits, Gorsuch responded that questioning a woman about her family planning during a job interview is “inappropriate,” but he would not go so far as to call it “prohibited.”
Gorsuch also said he was glad to have a chance to “clear up” the allegations against him regarding his remarks to his students on this topic, but he did not address the allegations head-on. Rather, Gorsuch mainly discussed how many female students he has taught over the years who said they have faced such inappropriate questioning during their own employment application process and added that he was greatly distressed to see this remain a reality today and not just a relic of earlier times.
On Twitter, NARAL Pro-Choice America summarized Gorsuch’s replies in today’s hearings this way:
— NARAL (@NARAL) March 21, 2017
And the Planned Parenthood Action Fund laid out some additional concerns, based on Gorsuch’s lack of answers today:
— Planned Parenthood (@PPact) March 21, 2017
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