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Gorsuch hearing

There are many conservatives who made a big trade-off when they decided to support Donald Trump in spite of what even they would describe as monumental moral failings, including members of his own administration.

That big trade-off will be put to the test this week, as the Supreme Court hears the first abortion-related case since the elevation of Trump nominee Neil Gorsuch to the court.

On Monday, the court agreed to hear arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra, a case in which so-called “crisis pregnancy centers” seek to challenge a California law requiring them to post a notice informing patients that state programs for reproductive services, including abortions, are available.

The crisis pregnancy centers argue that the law infringes on their rights of free speech and free exercise of religion, while California argues “no, it doesn't.”

The 9th Circuit Court of Appeals upheld the law, and rightly so, finding that the required notice constitutes “professional speech” and is subject to a lower level of constitutional scrutiny, while the First Amendment claim was unlikely to succeed based on the fact that the law is “facially neutral.”

In the 9th Circuit opinion, Judge D.W. Nelson cited a plethora of precedents, including this one for that “facially neutral” claim:

To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.

That opinion was written by Justice Anthony Kennedy, who serves as the swing vote on the current court, so this case isn't likely to reshape precedent all that much, but Gorsuch's reaction to it could signal the direction a future Trump court might take on such an issue. Trump is licking his chops at the prospect of getting to appoint more justices, and Gorsuch's performance here will be a test of how those appointments might go.

Gorsuch has thus far leaned heavily on the “plain meaning” crutch during his time on the court, but this case affords him little refuge in that regard. There are no “penumbral” gray areas in which to hide, like what Gorsuch calls the “nontextual” right to privacy that's at the heart of Roe v. Wade.

The “plain meaning” of this law is that if you're a licensed medical practitioner, you have to disclose pertinent medical information. To be honest, NIFLA's claim is so weak that this might not even end up being as close as a 5-4 decision.

But if Gorsuch rules against NIFLA, the fallout for Trump could be considerable. Trump's ability to appoint justices who will attack reproductive freedom was a major selling point for conservatives, including White House Press Secretary Sarah Huckabee Sanders, who called Trump's remarks about sexual assault “disgusting,” and White House Counselor Kellyanne Conway, who cited Supreme Court appointments as a key reason for sticking with Trump after the “Access Hollywood” tape dropped.

The irony is that this case would actually be a poor way to judge Gorsuch's secretive views on Roe v. Wade if he were to rule against NIFLA. But if he rules in its favor, he would be outing himself as a purely activist judge not a year into his term and providing rocket fuel to an anti-Trump resistance that's already breaking atmosphere with huge Democratic wins last week.

Please note: This is a commentary piece. The views and opinions expressed within it are those of the author only and do not necessarily reflect the editorial opinion of IJR.

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