Bench Memos

Law & the Courts

Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Neil Gorsuch

I’ll turn now to the three Trump Supreme Court candidates who pro-life activist Andy Schlafly asserts “probably would NOT be pro-life on the Supreme Court.” I’ll address his criticism of Tenth Circuit judge Neil Gorsuch in this post and deal with the other two in the next two posts.

Schlafly complains that Gorsuch

[1] wrote about abortion using the terminology of the pro-abortion side, without ever referring to the “unborn child”; [2] he has avoided mentioning abortion as a judge but has favorably cited the Blackmun decision that gave abortionists legal standing to challenge pro-life laws; and [3] while religious beliefs are not a test for public office, Gorsuch’s Episcopalian church has declared its “unequivocal opposition” to pro-life laws and [4] he has said nothing publicly pro-life.   

Before turning to Schlafly’s specific complaints, I’d like to take note of his remarkable failure to acknowledge, much less credit Gorsuch for, Gorsuch’s powerful dissent (see pp. 16-27 here) one month ago from the Tenth Circuit’s denial of rehearing en banc in Planned Parenthood Association of Utah v. Herbert. As the faithful reader will recall from these posts of mine, in the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood’s Utah affiliate. But after the district court denied Planned Parenthood’s request for a preliminary injunction against Herbert’s directive, a divided panel, on very weak reasoning, ruled that Planned Parenthood was entitled to a preliminary injunction. Gorsuch’s dissent dismantles the panel majority’s reasoning.

It’s also noteworthy that the author of the panel ruling, Judge Mary Beck Briscoe, complains in her opinion concurring in the denial of hearing en banc (beginning at p. 3 here) that a single member of her court, “acting despite the absence of a timely filed petition for rehearing by any party,” took what she considered the extraordinary action of sua sponte calling for the court’s en banc reconsideration of the panel ruling. Given the back and forth between Briscoe and Gorsuch, it’s not climbing out on a limb to surmise that it was Gorsuch who made the sua sponte call.

I’ll also note that Schlafly somehow makes no mention of Gorsuch’s courageous book, The Future of Assisted Suicide and Euthanasia, which (as Princeton University Press puts it) “builds a nuanced, novel, and powerful moral and legal argument against legalization [of assisted suicide and euthanasia], one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong.” (Emphasis added.) Gee, might that principle have any application to abortion?

Now for Schlafly’s specific complaints:

1. Schlafly’s haphazard use of hyperlinks makes it impossible to know what he’s referring to when he claims that Gorsuch “wrote about abortion using the terminology of the pro-abortion side, without ever referring to the ‘unborn child.’” In fact, in his book (p. 82), Gorsuch writes:

In Roe, the Court explained that, had it found the fetus to be a “person” for purposes of the Fourteenth Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother’s liberty interests over the child’s life. [Emphasis added.]

2. Schlafly claims that Gorsuch “has avoided mentioning abortion as a judge but has favorably cited the Blackmun decision that gave abortionists legal standing to challenge pro-life laws.” As noted above, far from avoiding mentioning abortion, Gorsuch wrote a powerful dissent from the denial of rehearing en banc in a case involving funding of Planned Parenthood.

So far as I have been able to establish, Gorsuch has never cited a Blackmun decision on standing in support of liberalized standing. He has on three occasions cited Blackmun’s standing decision in Singleton v. Wulff, but only for the uncontroversial proposition that “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Surely Schlafly doesn’t mean to suggest that it is contrary to “pro-life” values to cite a Blackmun opinion for a proposition that Blackmun got right. Or does he?

3. As for the views of “Gorsuch’s Episcopalian church”: It’s not clear to me that Schlafly accurately characterizes the 1976 resolution that he links to, and that resolution does not purport to speak to the constitutional status of abortion laws. In any event, any inferences that might be drawn from Gorsuch’s religious affiliation (if, that is, it is legitimate to try to draw such inferences) are feeble in the context of Gorsuch’s record.

4. I don’t know what Schlafly means by his claim that Gorsuch “has said nothing publicly pro-life.” If declaring in writing that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong” (page 157 of his book) doesn’t count, then what does? I’ll also observe that Chief Justice Roberts, Justice Thomas and Justice Alito had, so far as I’m aware, “said nothing publicly pro-life” before they were nominated to the Supreme Court. Is Schlafly really proposing a standard that they couldn’t meet?