5 Ways the Nomination of Neil Gorsuch Threatens Women’s Rights

The following article Jocelyn Frye and Michele L. Jawando was posted on the Center for American Progress website March 23, 2017:

The principle of equality is a cornerstone of American democracy. From our nation’s earliest history to the present day, there has been a robust discussion about how to realize the promise of equality in the everyday experiences of people across the country. But equality in the United States has come with an invisible asterisk: Its principles have not been uniformly enjoyed across different segments of society. Given this reality, people who face discrimination have always depended on the courts to protect their access to equal justice.

For women, the ongoing quest for equality has been a deliberate—yet uneven—journey. The U.S. Supreme Court has been pivotal in determining the pace and scope of this progress. It is therefore critical that the next Supreme Court justice has an unflinching commitment to an equality that respects all women’s dignity and autonomy, enables them to participate fully in society, and empowers them to make decisions about their lives that make sense for them. President Donald Trump’s nominee to the Supreme Court, however, has a judicial record that suggests that he would attack—not advance—women’s equality if he is elevated to the Supreme Court. A close look at Judge Neil Gorsuch’s record reveals that his appointment would likely threaten women’s rights in the following five ways.

Putting employers’ preferences ahead of women’s rights

Gorsuch favors protecting the religious preferences of employers at their employees’ expense. If confirmed, he would further erode women’s ability to make sound personal health decisions. In Hobby Lobby v. Sebelius, Gorsuch and his colleagues on the 10th U.S. Circuit Court of Appeals ruled that a closely held, for-profit corporation could refuse on religious grounds to comply with the Affordable Care Act, or ACA, requirement that health insurance cover contraception. Judge Gorsuch wrote a separate concurrence to the court’s ruling, explaining that the ACA mandate forced the corporations to violate their religious beliefs. A divided U.S. Supreme Court upheld the 10th Circuit’s decision.

While conservative judges framed the case as a dispute about religious freedom, Hobby Lobby was also a case about women’s equality and the rights of employees. The ability to control fertility is one of the most personal decisions a person can make; for women, it goes to the heart of whether they have an equal right to participate in the workforce and start a family. Yet, Gorsuch deems these interests secondary to a corporation’s religious preferences.

Refusing to support protections from pregnancy discrimination

Because many women will take time off from work at some point in their careers for the birth of a child, the Pregnancy Discrimination Act was enacted in 1978 to make clear that discrimination based on pregnancy or childbirth constitutes sex discrimination. Yet, too many women continue to confront discriminatory, outdated attitudes about their ability and commitment to work simply because they are or might become pregnant.

Two of Gorsuch’s former students at the University of Colorado Law School allege that, during a discussion about maternity leave in Gorsuch’s legal ethics class, he stated that employers should ask female applicants whether they intend to start a family. He reportedly argued that women often manipulate maternity leave policies to take time off at the company’s expense before leaving the company.

When asked about this at his Senate confirmation hearing, Gorsuch first denied making the comments, claiming he had merely asked students a question from a teacher’s text to illustrate the prevalence of sex discrimination. But when asked about his specific views on pregnancy discrimination laws, Gorsuch raised more questions than answers. He declined to say whether questioning female and not male applicants about their intent to start a family would violate the law. Gorsuch’s unwillingness to clearly affirm protections against pregnancy discrimination is cause for concern. Women’s ability to participate fully and equally in the workforce depends on fair treatment without regard to their family responsibilities

Undoing Roe v. Wade

Throughout the presidential campaign, Trump promised to nominate a Supreme Court justice who would “automatically” overturn Roe v. Wade. Judge Gorsuch admitted he spoke with President Donald Trump about abortion in his pre-nomination interview but claimed their conversation was limited to the issue’s political impact.

Gorsuch has declined to discuss his views on Roe at his hearing, beyond acknowledging that it is “precedent.” But his writings make his position clear. Gorsuch has argued against the legal principles upon which Roe is founded, both indirectly in his opinions and more directly in his book criticizing “assisted suicide.” He is critical of the right to privacy and the substantive due process rationale used by the Supreme Court in support of this right. Without this right to privacy, there is no constitutional right to make decisions about sex, reproduction, or even marriage without state interference. Moreover, preserving and protecting women’s constitutionally protected legal right to access abortion is critical to their individual dignity and autonomy.

Eliminating women’s access to health care

Conservatives have relentlessly attacked women’s access to quality, affordable health care, threatening their agency, health, and well-being. Among the most vitriolic and inflammatory efforts: the push to defund Planned Parenthood. Anti-abortion activists have targeted Planned Parenthood because it provides abortion services, even though these services are provided with nonfederal funds and make up only a small percentage of the services the organization provides. An estimated 2.5 million people visit one of the 650 Planned Parenthood facilities across the country each year. Eliminating funding for these health centers would devastate entire communities and dramatically reduce women’s access to health care.

During Gorsuch’s time on the 10th Circuit, the court upheld an injunction to stop Utah Gov. Gary Herbert (R) from defunding Planned Parenthood in response to misinformation from doctored videos that falsely accused the organization of selling fetal tissue. Gorsuch, however, took the unusual step of pushing for a rehearing by the full court, even though the governor did not ask for a rehearing. When his colleagues declined to rehear the case, Gorsuch dissented and attempted to legitimize the governor’s unsupported claims.

Denying women access to justice

No one can vindicate their rights if they cannot even make it to court. Yet, in several cases, Gorsuch has shown a conspicuous penchant for barring women from litigating discrimination claims.

In Strickland v. UPS, Carole Strickland alleged that she was discriminated against when she was held to higher performance standards than male co-workers, even as she exceeded them in sales. The majority ruled that her case could move forward, but Gorsuch filed a dissent arguing that her evidence of discrimination, which included testimony from multiple co-workers, was insufficient.

In another case, Weeks v. Kansas, former counsel Rebecca Weeks alleged she was fired in retaliation for advocating for colleagues who experienced workplace discrimination. Upon review, Gorsuch openly ignored relevant U.S. Supreme Court precedent because Weeks failed to cite it and denied her the right to proceed with her claim. If Gorsuch is confirmed, women may face new barriers to challenging discrimination in court.

Bad for women’s rights

Judge Gorsuch could become a reliable vote against the critical rights essential to women’s equality and women’s progress—such as the ability to access reproductive health care, including abortion, and challenge different forms of sex discrimination in the workplace. Women deserve a Supreme Court justice who will not turn back the clock on their rights. The Senate should stand up for women and reject President Trump’s Supreme Court nominee.

The authors thank Rebecca Buckwalter-Poza, Sunny Frothingham, and Billy Corriher for their assistance with this column.

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