Judge Neil Gorsuch’s Record on Women’s Legal Rights

By Amy Matsui (National Women’s Law Center) & Sarah Lipton-Lubet (National Partnership for Women & Families)
Judge Gorsuch’s record on women’s legal rights shows that time and time again, his approach to the law favors employers, politicians, and other powerful entities, and hurts the individuals who rely on the law for protection. And time and time again, this approach disadvantages women.

Judge Gorsuch’s record shows hostility to the constitutional right to privacy. In writings prior to becoming a judge, Gorsuch demonstrated hostility towards constitutional protections of personal autonomy. At his hearings, Judge Gorsuch declined to say whether Roe v Wade was correctly decided, merely acknowledging that it is a precedent of the Supreme Court. This is especially troubling in light of repeated promises by President Trump that his nominee would vote to overturn Roe v. Wade. Taken together, it is clear that Judge Gorsuch would be a threat to abortion rights and the precedent set by Roe.
Judge Gorsuch ruled to allow corporations’ religious beliefs to override women’s right to insurance coverage of contraception. In the Hobby Lobby case, a corporation challenged the Affordable Care Act’s birth control benefit, which requires health insurance plans to provide women with birth control coverage with no cost sharing. Judge Gorsuch joined the 10th Circuit in holding, under the Religious Freedom Restoration Act (RFRA), that an employer’s religious beliefs could override employees’ right to birth control coverage, including an especially extreme holding that promoting gender equality and public health – the very goal of the birth control benefit – were not compelling government interests. Judge Gorsuch’s concurring opinion refused to even acknowledge the health impact and financial burden on the women who would lose insurance coverage under his approach. Ultimately, the Hobby Lobby case reached the Supreme Court. But unlike the decisions joined and written by Judge Gorsuch, the Supreme Court instructed that as part of RFRA’s balancing test, courts must consider the impact on women. In addition, Hobby Lobby has been cited in attempts to use RFRA to challenge antidiscrimination laws that protect LGBTQ individuals, and Judge Gorsuch’s understanding of how courts should apply RFRA’s test would be far more favorable to these types of claims.
Judge Gorsuch deferred to purely political efforts to defund Planned Parenthood. In a case in which his colleagues voted to block the governor of Utah from withholding funding from the Utah Planned Parenthood affiliate, Judge Gorsuch went to unusual lengths to have the court reexamine that decision. If the court had allowed the governor to defund Planned Parenthood, women would have been left without essential health care services.
Judge Gorsuch’s record shows hostility to key constitutional protections for LGBTQ people. Before becoming a judge, Gorsuch criticized liberals for turning to the courts to protect their rights on a variety of issues, including marriage equality. In addition to showing hostility to constitutional protections for personal autonomy, Judge Gorsuch has also espoused a textual and originalist approach to the law, which would not have recognized marriage equality under the Constitution. He has also ruled to deny basic protections to transgender plaintiffs. At his hearings, Judge Gorsuch would only state the obvious: that Obergefell v. Hodges and Lawrence v. Texas are precedents of the Supreme Court. This is hardly reassuring in light of his earlier statements and President Trump’s promise to nominate someone in the mold of Justice Scalia.
Judge Gorsuch’s approach in workplace discrimination cases favors employers over workers. Judge Gorsuch tended to narrowly interpret laws that are meant to protect workers against discrimination, and defer to employers’ explanations for their actions against workers. He has repeatedly voted to deny a plaintiff the opportunity to even present evidence of discrimination or harassment to a jury. Judge Gorsuch also joined a decision concluding that discrimination against a transgender individual did not constitute unlawful gender discrimination. Letters from former students claimed that he had suggested companies can and should ask women – and only women – about their pregnancy plans in order to protect corporate interests. Even in explaining the incident at his hearings, Judge Gorsuch shockingly refused to acknowledge that such employer behavior would violate Title VII.
Judge Gorsuch questioned whether judges should defer to federal agencies’ expert interpretations of the laws, which provide critical protections upon which people depend. Federal agencies explain how laws should be implemented. For example, Title IX prohibits sex discriminations in schools. The Department of Education’s policy guidance explained, specifically, how schools should promote equal athletics opportunities for girls. These regulations have a real-life impact: for example, between the publication of the policy guidelines in 1979 and now, nearly 1.5 million more high school girls participate in sports. Judge Gorsuch has refused to defer to federal agencies’ interpretation of the laws that protect workers in several notable worker safety cases. Refusing to defer to agency regulations could have adverse effects for women and girls with regard to education, workplace rights and protections, consumer protections, the environment, and beyond.

When we consider Judge Gorsuch’s record along with his refusal to provide anything but platitudes about his judicial philosophy during his Senate hearings, we must conclude that if Judge Gorsuch is confirmed to the Supreme Court, women would feel the devastating impact of his decisions for generations to come.