In October 2016, Gorsuch backed the state of Utah in its decision to defund Planned Parenthood after anti-abortion activists released a series of heavily edited videos purporting to show the family planning provider negotiating the sale of fetal tissue.
The 10th U.S. Circuit Court of Appeals sided with Planned Parenthood, ruling that Utah Gov. Gary Herbert (R) had likely pulled $275,000 in grants from Planned Parenthood in retaliation for the group’s legal abortion advocacy, an unconstitutional motive.
Gorsuch dissented, arguing that Herbert had lawfully defunded Planned Parenthood because he believed the group was involved in fetal tissue trafficking. “It is undisputed that when the Governor announced his decision to discontinue funding he contemporaneously explained that his decision came in direct response to the videos,” he wrote. “And it is undisputed, too, that the Governor was free as a matter of law to suspend the funding in question for this reason.”
“To be sure,” he continued, “the panel cited the fact that the Governor has long opposed abortion and, from this, inferred that he wanted to punish the group for its lawful abortion advocacy. But it is undisputed that the Governor has held office since 2009 and had taken no action against [Planned Parenthood Advocates of Utah] until shortly after the release of the videos of 2015.”
Indeed, while Republicans in Congress and state legislatures have been trying to defund Planned Parenthood since 2011, even threatening to shut down the federal government over the issue, the release of the “sting” videos in 2015 gave them political cover to execute the move.
The Planned Parenthood dissent was not the first time Gorsuch sided against reproductive rights and birth control access. In 2013, he joined the 10th Circuit Court of Appeals in ruling that the Obama administration could not require closely held, for-profit companies like Hobby Lobby, the Christian-owned craft supply chain, to include contraceptives in their health insurance plans. In his concurring opinion, Gorsuch suggested that it’s reasonable to consider taking birth control “wrongful conduct.”
“All of us face the problem of complicity,” he wrote. “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”
If Gorsuch fills the Supreme Court vacancy left open by Justice Antonin Scalia, his opinions on Planned Parenthood, birth control and abortion will be extremely important to the future of reproductive rights in the United States. Republicans control the House and Senate, and Trump opposes abortion rights, so the high court will likely have a chance to weigh in soon on laws that limit women’s health care options.
Planned Parenthood President Cecile Richards released a statement Tuesday night strongly opposing Gorsuch’s nomination.
“Nominees to the highest court in the land must make clear that they will protect our fundamental rights ― including the right of a woman to control her body,” Richards said. “There has never been a more important Supreme Court nomination. It has become crystal clear that the courts are going to be the last - and sometimes only - line of defense against dangerous and unconstitutional attacks on basic rights.”