The judge nominated to replace Antonin Scalia at the Supreme Court answered questions on abortion and religious freedom jurisprudence on Tuesday.
While he avoided commenting on how he may rule in certain cases, Judge Neil Gorsuch of the Tenth U.S. Circuit Court of Appeals discussed the legal principles underlying topics such as the right to life and freedom of religious expression.
Speaking to the Senate Judiciary Committee, he acknowledged Roe v. Wade – the 1973 Supreme Court decision that legalized abortion throughout the U.S. – as settled precedent, though he declined to say whether it was decided correctly and how he would rule in future abortion cases.
Tuesday marked the second day of the committee’s confirmation hearing for Judge Gorsuch to be an associate justice of the Supreme Court. Gorsuch was tapped by President Donald Trump in February to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia in 2016.
Trump had insisted while on the campaign trail in 2016 that he would appoint pro-life justices to the Supreme Court.
When asked at the final presidential debate in October if, as president, he wanted the Supreme Court to overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion throughout the U.S., Trump answered that “if that would happen, because I am pro-life and I will be appointing pro-life justices…it [the legality of abortion] will go back to the individual states.”
On Tuesday, Gorsuch was asked by Sen. Chuck Grassley (R-Iowa), chair of the Senate Judiciary Committee, “whether Roe was decided correctly.” Gorsuch answered that the decision “is the precedent of the United States Supreme Court.”
Roe, he said, “was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider a precedent of the United States Supreme Court worthy as treatment of precedent like any other.”
When Sen. Dianne Feinstein (D-Calif.), ranking member on the committee, asked Gorsuch about assumptions that he could vote to overturn Roe, he reiterated that it was “settled.”
“Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward,” Gorsuch answered. “It has been reaffirmed many times. I can say that.”
He expounded upon abortion law in a discussion with Sen. Lindsey Graham (R-S.C.), who asked about the authority of states to set limits on abortions given that medical knowledge of unborn human life has developed with time.
Graham referenced the Planned Parenthood v. Casey decision of 1992, which established the “viability” standard for states’ abortion laws, that they could restrict abortions after an unborn baby shows “viability.”
Recent research shows that unborn babies can “feel excruciating pain” at 20 weeks post-gestation, Graham argued, and so the “state has a compelling interest” to step in and limit abortions conducted after five months.
Currently, 19 states have “Pain-Capable” laws banning abortions after five months of pregnancy, except in cases of rape, incest, or when the life of the mother is at stake.
Rather than voicing support or opposition for such laws, Gorsuch simply promised that if an abortion law case came before him as a Supreme Court justice, he would, as Graham had asked, “look at the facts,” “read the briefs,” and “make a decision” from that.
Sen. Grassley also asked about the Griswold decision of 1965 that legalized contraception in the U.S. based on a right to privacy of married couples. Gorsuch answered that the case has precedent as it is “50 years old.”
“It’s been repeatedly reaffirmed, all very important factors again, in analyzing precedent.”
Senators also pressed Gorsuch about religious freedom cases, particularly the application of the Religious Freedom Restoration Act to jurisprudence. RFRA was a law passed in 1993, and it set up a test to determine cases where a person claimed their free exercise of religion had been violated by the federal government.
The government may not “substantially burden” one’s free exercise of religion, the law says, unless it proved that its law “furthered a compelling governmental interest” and was the “least-restrictive means” of doing so.
RFRA has surfaced in Supreme Court cases as of late, especially in cases of employers or religious non-profits against the government’s birth control mandate. That mandate forces employers to provide cost-free coverage for sterilizations, contraceptives, and drugs that can cause abortions in employee health plans.
Gorsuch, while on the Tenth Circuit, ruled in favor of Hobby Lobby, an arts-and-crafts chain owned by a Christian family who claimed that the mandate violated their religious freedom because they had to provide employees coverage for drugs they believed caused abortions.
He insisted on Tuesday that the religious freedom law “applies not just to Hobby Lobby. It also applies to the Little Sisters of the Poor and protects their religious exercise,” he said, and protected a Muslim prisoner in Oklahoma who wanted to keep his beard at a certain length for religious purposes against prison rules.
Gorsuch joined the dissent in the case of the Little Sisters of the Poor where they claimed that the federal government’s “accommodation” offered to them to opt-out of the mandate still violated their religious beliefs. The Tenth Circuit ruled against the sisters, but Gorsuch joined the dissent.
In the Hobby Lobby case, critics of the Court’s decision said that the business was not protected by RFRA because it was not a “person.”
Gorsuch explained how he reasoned that the law protected “closely-held for-profit corporations” as well.
The Green family claimed they owned “a small, family-held company,” Gorsuch said. “They exhibit their religious affiliation openly in their business. They pipe in Christian music. They refuse to sell alcohol or things that hold alcohol. They close on Sundays though it costs them a lot.”
“Congress didn’t define the term” of “person” when they wrote the law, he continued. The Court invoked the “Dictionary Act,” which states that “the words ’person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
“So you can’t rule out the possibility that some companies can exercise religion,” Gorsuch said. “And of course we know churches are often incorporated. And we know non-profits like Little Sisters, or hospitals can practice religion. In fact, the government in that case conceded that non-profit corporations can exercise religion. Conceded that.”
Additionally, the birth control mandate was not the “least-restrictive means” of ensuring contraception coverage, he added. The Supreme Court ruled “that it wasn’t as strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities.”