Since the death of Justice Scalia last February, there has been a huge debate on who would fill his chair in the U.S. Supreme Court. On January 31st, President Trump announced his nominee – Federal Judge Neil Gorsuch.
For almost a year now SCOTUS has had an even balance of power, but this selection will tip the scale to a 5-4 conservative majority. Gorsuch is young, impressively qualified, ideologically identical to Scalia and an extreme backer of religious freedom. Unsurprisingly, Trump’s nomination was met with approval from conservatives and criticism from liberals. Rachel Tiven, the chief executive of Lambda Legal, a gay rights advocacy group, explains the danger of a justice who historically has ruled in favor of prioritizing religious rights over upholding the Affordable Care Act requirements: “It is a short hop from birth control restrictions to restrictions on intimate relationships and healthcare needs of LGBT people.”
If Gorsuch gets confirmed, what would his appointment mean for women’s reproductive rights in the next year? Depending on how much the docket changes in coming months, it is possible that the appointment will have little to no impact on the reproductive rights front. Right now, the docket is sparse as the Supreme Court was reluctant to take on cases with a vacancy on the bench. This year, the majority of cases are related to immigration, patent laws and transgender rights. With few anti-abortion cases coming up for SCOTUS, there does not appear to be any legitimate threat to women’s reproductive rights at present.
The bigger question though – is Gorsuch anti-choice? His track record shows that he has never ruled directly on any cases involving abortion rights nor has he confirmed his personal opinion on the matter. But if he does end up voting against abortion rights as Trump promised his nominee would, it is likely not enough to overturn Roe v. Wade. Even with a new conservative justice and a court leaning right, Justice Kennedy is likely to protect abortion rights. While he’s typically conservative, Justice Kennedy has always voted to defend abortion rights established by Roe v. Wade. As long as he remains consistent, Roe v. Wade will remain in place.
However, this assumes the eight current justices continue to serve through Trump’s presidency. There remains the possibility that Trump will have the opportunity to appoint not one, but two justices. Justice Kennedy is 80, while the senior members of the liberal wing of the court, Justices Ginsburg and Breyer, are 83 and 78 respectively. If the Supreme Court loses one of these three justices during Trump’s time, the fight for reproductive rights would face an imminent threat by a dominatingly conservative SCOTUS.