Consistent with the stated mission of the Committee, our assessment focused on Judge Gorsuch’s personal integrity, professional competence, and judicial temperament, with “an emphasis on laws and decisions regarding women's rights or that have a special impact on women.”2 Our review of over 500 opinions, concurrences, and dissents written by
The key issues of concern identified through the Committee’s review of Judge Gorsuch’s writings fall into two key categories. First, the Committee is concerned by Judge Gorsuch’s expansive view of religious rights and of the rights of corporate entities, which has led him to conclude that the religious rights of individuals and corporations take precedence over women’s liberty interests, including women’s reproductive rights. Second, the Committee is concerned by Judge Gorsuch’s narrow reading of the holdings in key cases where the application of substantive due process was held to protect individual liberties of women and minorities.
In our view,
- In a concurring opinion in
Hobby Lobby Stores, Inc.v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), Judge Gorsuchheld that an expanded application of religious freedom operates to invalidate the contraception coverage mandate of the Affordable Care Act (“ACA”), limiting a woman’s reproductive health choices. This opinion expanded the theory of religious rights to include corporate decision-making and, in so doing, limited the rights of women employees to make their own health care decisions.5
- In Little Sisters of the Poor Home for the Aged,
Denver, Colo.v. Burwell, 799 F.3d 1315, 1317 (10th Cir. 2015), the Tenth Circuit Court of Appealsupheld the ACA accommodation allowing religiously-affiliated non-profit organizations to submit a form opting out of birth control coverage through employer provided health plans while ensuring women could nevertheless obtain coverage from those insurance plans. In a sua sponte poll for rehearing, Judge Gorsuchjoined a dissent from the denial of rehearing, which argued that the act of submitting the form, itself an attempt to balance an organization’s religious freedom and women’s access to contraception, violated the plaintiffs’ religious freedom.
In another case,
Judge Gorsuch’s writings also exhibit a reluctance to recognize precedent that applies substantive due process to protect the rights of women and minorities.6 In Chapter 5 of his 2006 book titled The Future of Assisted Suicide and Euthanasia,
The Committee finds that
Nevertheless, because the Committee has found that
The mission of the
3 Id., p. 5 (emphasis added).
5 NAWL joined in the National Women’s Law Center’s Amicus brief filed in the
6 See Gorsuch, Neil, The Future of Assisted Suicide and Euthanasia, Ch. 5: “Casey and Cruzan: Do They Intimate a Right to Assisted Suicide and Euthanasia,” (2006).