Neil Gorsuch may be a soft-spoken and gentlemanly Harvard-educated lawyer’s lawyer.  But his decision in the Hobby Lobby case, 723 F.3d 1114 (10th Cir. 2013), apparently overlooked by most commentators, demonstrates just how much American women have to fear if he is confirmed as a justice on the Supreme Court.

As we know, in Hobby Lobby v. Burwell, 134 S. Ct. 2751 (2014), the Supreme Court determined by a 5-4 majority that for-profit family owned corporations were “persons” who could assert the religious beliefs of their human shareholders to thwart the mandate of the Affordable Care Act (ACA) that all employer-based and individual insurance plans covered under the ACA offer essential preventative services.

Hobby Lobby began when two family-owned for-profit corporations, Hobby Lobby and Mardel, sought a preliminary injunction in an Oklahoma federal district court, contending that they should not be compelled to comply with the ACA’s contraceptive services mandate because the Green family, the owners of these corporations, personally believed that certain of these FDA-approved forms of contraception constituted abortion, in violation of their religious belief that life begins at conception. The district court denied the injunction, and the case was appealed to the United States Court of Appeal for the Tenth Circuit. A plurality of the court held that Hobby Lobby and Mardel, as corporations, were entitled to a preliminary injunction precluding the enforcement of the ACA, ruling that these corporations’ “religious beliefs” trumped the government’s interest in providing preventative health care to millions of Americans under the ACA.

Judge Gorsuch concurred.  After expressing his agreement with the plurality opinion, he then framed the issue of the obligation to comply with the ACA mandate in moral and religious terms: “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.” 723 F.3d at 1152 (Gorsuch, J., concurring). Here, the “wrongdoing” Judge Gorsuch was referring to was women’s use of certain forms of contraception that the Greens found to be the equivalent of an abortion.

CONTINUES

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