The case against Neil Gorsuch
© Greg Nash


Donald TrumpDonald TrumpHouse votes to condemn Chinese government over Hong Kong Former Vice President Walter Mondale dies at age 93 White House readies for Chauvin verdict MORE has no right to fill the stolen seat on the U.S. Supreme Court, period.  As soon as President Obama fulfilled his constitutional duty to nominate a successor to Associate Justice Antonin Scalia, Mitch McConnellAddison (Mitch) Mitchell McConnellHouse votes to condemn Chinese government over Hong Kong 15 Senate Republicans pledge to oppose lifting earmark ban It's not 'woketivism,' it's good business MORE said that it was standard practice not to confirm Court nominations during a presidential election year.

The truth is that more than a dozen justices have been confirmed during election years, including Ronald Reagan’s nomination of Anthony Kennedy in 1988.

Even if making a nomination were legitimate, Trump’s selection of Neil Gorsuch is offensive to anyone who cares about women’s health and well being.


Though Neil Gorsuch has not ruled on an abortion rights case, his record clearly shows why Donald Trump, who vowed to pick judges who would overturn Roe v. Wade, selected him.

While sitting on the 10th Circuit Court of Appeals, Judge Gorsuch concurred with the court’s ruling in Hobby Lobby Stores, Inc. v. Sebelius, writing that the Affordable Care Act (ACA) required Hobby Lobby to “violate their religious faith” by covering birth control.

This opinion validates the ludicrous notion, enshrined by the Supreme Court in its Citizens United ruling that “corporations are people too” with religious freedom rights protected under the First Amendment.

Caroline Mala Corbin, a law professor at the University of Miami, succinctly rejected the idea of corporations as having the capacity for religious belief. As she said, “for-profit corporations do not and should not have religious rights. They have no soul, and they certainly don’t have a relationship with God.”

Rulings such as Citizens United and Hobby Lobby award more constitutional rights to corporations than women.  In fact, Justice Antonin Scalia, whom Neil Gorsuch has cited as a role model, publicly stated that the Fourteenth Amendment does not prohibit sex discrimination even though, by its plain language, state governments may not “deny to any person within its jurisdiction the equal protection of the laws.”  

Conservatives routinely relegate women to second-class status, but it takes a true misogynist to claim that a woman is not even a person.

Judge Gorsuch supported a further attack on the ACA’s contraceptive mandate when he joined a dissenting opinion in the case of Little Sisters of the Poor v. Burwell. The dissent called the mandate a burden to the plaintiffs’ free exercise of religion — even though what the plaintiffs were demanding was a constitutional prerogative to force their political ideology on their employees.

Previously, Gorsuch had written that requiring public hospitals to provide abortions was an instance of “the courts [feeling] free to override the conscience of health care providers.”  But in our democracy and under our constitution, the views of individuals with a political agenda masquerading as religion should never outweigh the rights of women to access basic medical care.

More recently, Judge Gorsuch wanted to rehear, and likely reverse, a 10th Circuit ruling blocking Utah’s move to defund Planned Parenthood.  Gorsuch’s opinion endorsed the false claim that Planned Parenthood has trafficked in illegal fetal issue sales.  Judge Gorsuch failed to cite any supporting evidence for this accusation, because none exists.

Judge Gorsuch has provided additional clues regarding how he might rule on abortion in a book he authored about assisted suicide and euthanasia.  

“Once we open the door to excusing or justifying the intentional taking of life as ‘necessary,’” he wrote, “we introduce the real possibility that the lives of some persons (very possibly the weakest and most vulnerable among us) may be deemed less ‘valuable,’ and receive less protection from the law, than others.”

Note his use of the word “persons” there. Might he spare a thought for vulnerable women? One in three of us will have an abortion by age 45, and criminalizing that common, necessary procedure will result in unnecessary maternal mortality.  

On the issue of marriage protection and LGBTQ rights, Judge Gorsuch’s views are just as disturbing.  He has argued that some civil rights issues, like marriage equality, don’t belong in the courts at all.  In a 2005 essay in National Review, Judge Gorsuch wrote,

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

But it’s actually Judge Gorsuch who would be bad for the country and bad for the judiciary. And the idea that he would gain his seat as a result of Republicans  obstructing the nation’s first African American president from filling a vacant Supreme Court seat is equally bad for our democracy.   

Millions of women marched in Washington and around the world in response to Donald Trump’s inauguration.  Millions more will fight this dangerous and illegitimate nomination.

Terry O’Neill, a civil rights’ attorney, professor and activist for social justice, is the president of the National Organization for Women. 


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