Gorsuch and women’s choice: he’s not with us

Just pulled this excerpt off SCOTUSblog. I don’t think I’d realized Gorsuch was on the court that decided these notorious–for women’s rights and for the First Amendment–cases.

Thought you’d be eager to have your lousy memories about these cases refreshed, with a bit of my bolding.

I’ve sent my letter to everyone in the Senate, making my case for why Gorsuch must not be confirmed. Although you may not want to go through the time-consuming process of writing, I urge you to find your own way of objecting to this man.

Although Gorsuch’s opinions shed little light on his views on abortion, he has participated in two significant cases involving the intersection of religion and reproductive rights. In both cases, he sided with the plaintiffs, who had religious objections to the Affordable Care Act’s contraceptive mandate – a requirement that employers provide their female employees with health insurance that includes access to certain forms of birth control. In the first case, Hobby Lobby Stores v. Sebelius, a divided Supreme Court upheld the 10th Circuit’s ruling in favor of the plaintiffs. The Supreme Court did not rule on the merits of the plaintiffs’ claim in Little Sisters of the Poor v. Burwell, but it seems very likely that the plaintiffs would have prevailed (and Gorsuch’s position once again affirmed) but for the death of Justice Antonin Scalia on February 13, 2016, after the justices had agreed to review the case but before the oral argument.

The Hobby Lobby case arose when the Greens, the family that owns Hobby Lobby, objected to providing coverage for certain contraceptives that would prevent a fertilized egg from implanting; they believe that making those forms of birth control available to their female employees would make them complicit in abortion. The 10th Circuit ruled for the company, holding that, at least as applied to Hobby Lobby, the mandate violates the Religious Freedom Restoration Act, which bars the government from placing a substantial burden on a person’s ability to exercise his religion unless the government can show that the burden serves an important government interest and uses the least restrictive methods possible to advance that interest.

Gorsuch wrote a separate concurring opinion, in which he took the additional step of arguing that not only Hobby Lobby but also the Green family itself could bring a claim. He explained that the contraceptive mandate compelled the family to violate their beliefs “by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.” Using language that would presage his vote in the Little Sisters of the Poor case, he reasoned that Hobby Lobby “cannot comply with the mandate unless and until the Greens direct them to do so”; that personal involvement in facilitating the coverage violates their religious beliefs.

Summation: Neil Gorsuch is not with us women and we are the majority in this country. He must not sit on the Supreme Court.

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