Gorsuch's Pro-Life Promise

Arina Grossu is Director of the Center for Human Dignity at Family Research Council. This article appeared in US News and World Report on March 21, 2017.

In the opening statement of his confirmation hearing, Judge Neil Gorsuch pledged that he will do all in his power "to be a faithful servant of the Constitution." While we cannot be sure how he will rule on abortion, his tone was measured and we can expect a textual, neutral, faithful application of the Constitution. This type of originalist approach will translate into rulings protecting all human life and not activist abortion rulings making up rights which are nowhere to be found in the Constitution.

What we know of Gorsuch on the issue of life comes from his personal views, as well as his rulings on issues tangential to abortion. Regarding his personal views on the dignity of human life, we know that he believes life is "intrinsically valuable and that intentional killing is always wrong," according to his 2006 book "The Future of Assisted Suicide and Euthanasia." While the book does not explicitly talk about abortion, one chapter addresses the inviolability of human life and what it means to respect human life as a basic good. That he was willing to write and publish a book on this topic, even at the risk of backlash, should tell us something about his convictions on the respect for human life.

Second, Gorsuch wrote a note in his book about his mentor and former boss, U.S. Supreme Court Justice Byron R. White, who in 1986 said that abortion involves the death of a person in his dissent in "Thornburgh v. American College of Obstetricians & Gynecologists." Gorsuch characterized White's dissent as arguing that "the right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not."

Gorsuch has never ruled explicitly on abortion during his time on the U.S. Court of Appeals for the 10th Circuit, but he has shown he will not treat abortion claims differently on procedural grounds. The five following examples are good indications that he will rule as a faithful textualist in this area of the law, resulting in the defense of the pre-born child:

First, Gorsuch sided with businesses in the 10th Circuit Court of Appeals decision in Hobby Lobby v. Sebelius in 2013 that sought an exemption from the Department of Health and Human Services mandate forcing them to violate their consciences and provide drugs and devices, even those that can kill embryos, in their health plans. Gorsuch said that "it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible." He added, "It is not for secular courts to rewrite the religious complaint of a faithful adherent." The Supreme Court later upheld that decision.

Second, Gorsuch sided with religious organizations in the 10th Circuit against the HHS mandate. When the 10th Circuit rejected the Little Sisters' claims in Little Sisters v. Burwell in 2015, Gorsuch joined the dissent, which stated that the Little Sisters and other challengers should not have been forced to violate their consciences and become complicit in providing contraceptives and drugs and devices that can kill embryos. He concluded that the mandate would be a substantial burden on their religious beliefs.

Third, Gorsuch criticized the 10th Circuit for behaving differently on the abortion question by granting Planned Parenthood relief against Utah's effort to defund it. In Planned Parenthood Ass'n of Utah v. Herbert in 2016, Gorsuch wrote a dissent arguing Planned Parenthood's claims should have been rejected on procedural grounds.

Fourth, Gorsuch's adherence to proper jurisdiction produced a pro-life outcome in a case about the wrongful death of a nonviable stillborn baby. He directed the Oklahoma Supreme Court to answer whether state law allows a cause of action for the wrongful death of a nonviable stillborn baby in Pino v. United States in 2008. The Oklahoma Supreme Court found that a wrongful death cause of action was permitted, and based on this finding, the 10th Circuit – in an opinion which Gorsuch joined – directed the lower court to allow the claim to move forward.

Fifth, Gorsuch affirmed a state program allowing "choose life" license plates while not allowing pro-abortion license plates in Hill v. Kemp in 2007. While the court ruled on procedural grounds, the opinion he signed onto observed that "the State ... remain[s] free to promote adoption and ensure that none of its monies go to abortion-related activities or any other activities of which it disapproved." With this language, Gorsuch supported the right of a state to engage in pro-life speech.

President Donald Trump promised on the campaign trail that he would nominate a pro-life justice "in the mold of Justice Scalia." Gorsuch's extensive record shows that he is a textualist who will not issue rulings based on the perceived "spirit of the law" of the Constitution. Even though he has not ruled on any abortion cases directly, his rulings on procedural grounds have produced pro-life results, and he can be trusted to not give special deference to abortion rights claims as so many judges do.