Throughout his campaign, President Donald Trump made the remarkable pledge to nominate a Supreme Court justice who would “automatically” overturn Roe v. Wade, the landmark ruling that protects reproductive rights. Trump may make good on this particular campaign promise tonight when he announces his nominee. Almost all of the judges on Trump’s reported list of potential justices—Judges Neil Gorsuch, Bill Pryor, Diane Sykes, and others—have ruled to restrict reproductive rights for women and are apparently willing to follow through on his political pandering—even at the expense of legal precedent.
If confirmed, Trump’s justice could roll back decades of progress in protecting reproductive choice. Not only does this threaten women’s health—it also threatens to undermine women’s equality and their ability to enjoy equal protection under the law.
Almost all of the judges on Trump’s list have one thing in common—their predisposition to put women’s equality second to other interests. Judges Gorsuch, Pryor, and Sykes have allowed the religious beliefs of employers to overtake their workers’ rights to health insurance that covers contraception under the Affordable Care Act. Judges Sykes and Gorsuch have ruled to uphold attempts to defund Planned Parenthood. Judge Gorsuch of the 10th U.S. Circuit Court of Appeals wrote a book that argued against legalizing assisted suicide, included broad language about the sanctity of life, and attacked the legal principles that the Roe ruling relied upon.
Judge William Pryor of the 11th U.S. Circuit Court of Appeals has extreme positions on a broad range of women’s rights, particularly abortion. Pryor said that Roe is “the worst abomination of constitutional law” and that it created “a constitutional right to murder an unborn child.” At his last confirmation hearing, Pryor affirmed that he considered Roe worse than any other Supreme Court decision. This presumably includes Dred Scott, a notorious 1857 decision declaring that African Americans had “no rights which the white man was bound to respect.”
Trump claimed that if Roe is overturned, women could “go to another state” if their state bans abortion. However, this remark is completely out of touch with the realities of abortion access: The lack of reproductive health care can be particularly burdensome for low-income women who cannot afford to travel. Overturning Roe could cause millions of women to resort to desperate, risky measures.
Millions of people participated in the women’s marches across the country last weekend, united in opposition to Trump’s personal misogyny and his anti-choice agenda. Americans are uniting in defense of a woman’s right to choose. A 2013 poll found that 70 percent of Americans oppose overturning Roe. These citizens must vocally oppose Trump’s Supreme Court pick.
Putting your boss in your bedroom
Judges Gorsuch and Pryor have ruled that for-profit corporations can have a right to religious freedom that trumps employees’ rights to contraceptive coverage. The ruling imposes an employer’s beliefs on employees who may express their religious or moral beliefs though choosing contraception. When the 3rd U.S. Circuit Court of Appeals rejected an appeal from a corporation seeking this religious exemption, Judge Thomas Hardiman—another judge on Trump’s shortlist—dissented.
The Supreme Court affirmed Gorsuch’s ruling in Hobby Lobby, a decision that has been invoked to justify religious exemptions to child labor bans, anti-kidnapping laws, and anti-discrimination laws. Gorsuch has signaled that he would take Hobby Lobby even further. He dissented when the 10th U.S. Circuit Court of Appeals upheld an accommodation for religious nonprofits that allows them to opt out of the contraception requirement simply by signing a form—a simple gesture ensures that women still receive the coverage required by law.
Targeting reproductive health care providers
In October 2016, Judge Gorsuch wrote a dissent arguing that the governor of Utah could suspend state funding for Planned Parenthood. The majority ruled that the governor was targeting the organization because it performed abortions. But Gorsuch argued that the governor’s actions were justified as a response to “the public release of videos allegedly showing Planned Parenthood officials negotiating the sale of fetal tissue”—videos that were misleadingly edited to discredit the organization.
In 2012, Judge Diane Sykes—another potential Trump pick—overruled a lower court’s order to halt parts of an Indiana law prohibiting state agencies from providing funding to groups that provide abortions, even if the money was earmarked for nonabortion-related services. As a trial court judge in 1993, Judge Sykes showed unusual sympathy for anti-choice protestors who appeared in her courtroom on criminal charges for blocking the door to a reproductive health care provider. The defendants had been arrested dozens of times for extreme tactics in abortion protests. Judge Sykes told them, “I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct … Your motivations were pure.”
Citizens who support women’s rights will not sit on the sidelines during the Trump administration. Millions marched in support of women’s rights the day after Trump took office, and these people will not be silenced. If these protestors want to protect a woman’s constitutional right to choose, they must take to the streets to oppose Trump’s Supreme Court nominee.
Michele Jawando is the Vice President of Legal Policy at the Center for American Progress.