Less than a week into his presidency, Donald Trump has already made several encouraging moves for life: restoring the ban on foreign aid money going to abortion groups, confirming he will sign a permanent ban on taxpayer funding of abortion if it reaches his desk, calling out the media for ignoring the March for Life while obsessively covering the pro-abortion, so-called Women’s March on Washington, and sending Vice President Mike Pence to speak and represent the White House at the March for Life.
But, reportedly, the biggest test yet of whether he’s serious about being a pro-life president will come tonight. Trump has announced that he will be revealing his first Supreme Court nominee at 8:00pm on Tuesday. The dominant buzz is that Judge Neil Gorsuch from the Tenth Circuit Court of Appeals is now Trump’s favorite to replace the late, great Antonin Scalia.
If true, could Gorsuch be instrumental in overturning Roe v. Wade, or has President Trump chosen his frontrunner poorly? Let’s find out.
Gorsuch’s name appeared on Trump’s list of potential Supreme Court nominees he offered during the campaign to show he could be trusted with the responsibility. The list was assembled with substantial input from the Heritage Foundation and the Federalist Society to ensure every name was a solid originalist, garnering the list widespread praise from pro-life and conservative legal experts.
Gorsuch himself is also being widely hailed as an eminently qualified jurist committed to the original meaning of the Constitution. His former clerk David Feder attests that his old boss “not only faithfully applies originalist methodology but articulately explains why our constitutional design remains relevant—and critical—over two hundred years later”:
Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources. “We need to get this right,” was the motto—and right meant “as originally understood.” I can think of no one better to carry on Justice Scalia’s legacy and, in the words of Justice Thomas, “to stand firm in the defense of the constitutional principles and structure that secure our liberty.”
Hot Air’s Allahpundit summarizes the judge’s background:
Gorsuch’s career arc in public service has been meteoric. He joined the DOJ in 2005, was elevated as a judge to the Tenth Circuit in Colorado a year after, and now is in line for a Supreme Court appointment a little more than 10 years later. He’s all of 49 years old, five years younger than the nominal frontrunner for the Scalia vacancy, William Pryor. Put him on the Court this year and there’s a fair chance he’ll still be there in 2050.
But while impressive, Gorsuch’s rapid rise has one problematic side effect, through no fault of his own: a relatively thin paper trail of opinions by which to determine how he’d rule in specific cases, including little precedent directly ruling on abortion and no express statements on whether he considers Roe to be wrongly decided. That leaves us to try to infer his position from what he’s ruled and said elsewhere.
First, SCOTUSblog’s profile on Gorsuch highlights cases in which his “opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause”—a useful clue:
Gorsuch’s opinion shows respect for the doctrine’s “[d]etractors,” like Scalia, who “find dormant commerce doctrine absent from the Constitution’s text and incompatible with its structure.” Though Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense […]
[I]t’s noteworthy that criticism of the dormant commerce clause is of a piece with criticism of the “right to privacy” that undergirds the Supreme Court ‘s abortion jurisprudence, as well as other judge-made doctrines that do not have a strong connection to the constitutional text. Again, Gorsuch’s opinions seem to follow the lead of textualists and federalists like Scalia in expressing great skepticism towards such doctrines, which allow judges to strike down duly enacted local laws on the basis of vague principles that cannot be found in the concrete text of the national charter.
Second, SCOTUSblog notes that Gorsuch sided with Hobby Lobby and the Little Sisters of the Poor in their suits against the Obama Administration’s contraception mandate: “Gorsuch has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents.” He also sided with Utah Governor Gary Herbert’s attempts to defund Planned Parenthood.
Third, while in private practice, Gorsuch actually wrote a National Review article about the reliance “on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting [liberals’] social agenda […] This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.” That’s exactly right, and it would be extremely surprising if he didn’t apply that exact same logic to Roe.
Fourth, Hot Air’s Ed Morrissey has reviewed Gorsuch’s 2006 book, “The Future of Assisted Suicide and Euthanasia,” in which the judge makes (in Morrissey’s paraphrasing) a powerful case for the “intrinsic value of human life, and its correlation to equal treatment under the law.” That strongly suggests he’s not merely in the “personally pro-life” camp, but that he recognizes that the right to life is a matter of justice.
In the book, Gorsuch also makes the astute observation that “no constitutional basis exists for preferring the mother’s liberty interests over the child’s life,” which is why Roe opted to simply dodge the subject of personhood (a strong hint as to what he thinks of Roe, but not an outright condemnation).
Finally, Gorsuch does have one pro-life detractor: Andy Schlafly, pro-life activist and son of the late pro-life icon Phyllis Schlafly, who has been waging a one-man war against many of the very nominees on Trump’s list that his mother enthusiastically supported. Schlafly claims Gorsuch is almost certainly not pro-life, but Ethics and Public Policy Center president Ed Whelan refuted his charges in extensive detail, showing Schlafly’s case to be a mix of convoluted, speculative reaching and a twisting of rulings to mean the opposite of how Gorsuch actually came down.
So, in conclusion, the good news is that all available evidence suggests Gorsuch would be a reliable pro-life justice, and no evidence suggests he’d let us down. The bad news is that he’s not explicitly on the record as wanting Roe gone, like fellow SCOTUS contender William Pryor is.
If Gorsuch is indeed the choice, pro-lifers should be cautiously optimistic, but should also call on him to reveal his position on Roe before the Senate confirms him. Candidate Trump explicitly promised that his Supreme Court nominees would overturn it, and while judges aren’t supposed to pre-judge future cases, there’s nothing improper about publicly judging past cases.