What, exactly, is Gorsuch’s view of the use of and right to contraceptives?
Unlike the conservative justices currently on the court, during his confirmation hearing Gorsuch did not say he agreed with the Supreme Court’s 1965 ruling in Griswold v. Connecticut, which under the right to privacy nullified a law prohibiting the use of contraceptives, setting an important precedent for Roe v. Wade. The Griswold decision effectively found that a married couple has the constitutional right to privacy to choose to use contraception, and hasn’t been a very controversial decision.
Justices John Roberts, Samuel Alito, Anthony Kennedy and Clarence Thomas said they agreed with the Griswold decision. Thomas said he had “no quarrel” with Griswold. Roberts said: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”
However, the New Yorker in 2012 noted that Republican support for Griswold isn’t a given anymore, amid a new push to roll back the constitutional right to privacy. And in his confirmation hearing, Gorsuch did not clearly state he agreed with the decision. See this exchange:
Sen. Richard Blumenthal (D-Conn.): “Let me invoke your beliefs as a commentator. Do you believe it was the right result, based on your understanding of law — not your personal beliefs about whether contraceptives are a good thing or a bad thing, but your beliefs about the constitutional underpinning, the right to privacy, the Fourth Amendment, substantive due process, underpinning of Griswold versus Connecticut, was it the right result?”
Gorsuch: “Senator, I’ve consistently — I’m not picking out Griswold or any other particular case — I’ve drawn a line that I think is required of a good judge to be fair and to respect the separation of powers, without respect to precedent. A precedent of the United States Supreme Court, as we were talking with Senator Flake, they’re all precedents. They all deserve respect of a judge. […]
I have said, Senator, that, with this particular precedent we’re talking about, that it’s over 50 years old — weighty factor; that the reliance interests around it are many and great. I have said that it has been repeatedly reaffirmed by the United States Supreme Court. I’ve said that I cannot imagine a state actually legislating in this area. And I have said that I cannot imagine the Supreme Court taking someone wishing to challenge that precedent seriously. I don’t know how much more clear I could be to you, Senator.”
Later, Blumenthal tried again:
Blumenthal: “You’re unwilling to say that. And you’re unwilling to say, as Chief Justice Roberts did about Griswold, I agree with the Griswold court’s conclusion, that marital privacy extends to contraception and availability of that.”
Gorsuch: “Respectfully, Senator, I think we’re splitting hairs. I really do because I have told you quite clearly that both of those precedents are in the realm of 50 years old, that have serious reliance interests around them, that they’ve been repeatedly reaffirmed. And Senator, what I’ve tried to do with respect to all precedents is treat them equally, in my presentation before you. Because as a judge, I come at them equally. In my line of work, a precedent is a heavy, a weighty thing. And it deserves respect as precedent, as part of our history. And …
Blumenthal: “With all due respect, Your Honor, we’re doing more than splitting hairs here, because words matter. And the words of Chief Justice Roberts and Justice Alito were different than yours. Asking you to agree that these results were correct, I think is a relevant and important question. And your declining to do so — I respect your reasons, but I think that it speaks volumes, with all due respect.”
Gorsuch: “Well, let me try one more — this way, Senator, for you. Maybe this will help. The way I look at it is, I don’t come at these issues fresh. It’s not whether I agree or disagree with any particular precedent. That would be an act of hubris. Because a precedent, once it’s decided, it carries far more weight than what I personally think.”
There are 61 million U.S. women of reproductive age (15–44).1 About 43 million of them (70%) are at risk of unintended pregnancy—that is, they are sexually active and do not want to become pregnant, but could become pregnant if they and their partners fail to use a contraceptive method correctly and consistently.2
Couples who do not use any method of contraception have approximately an 85% chance of experiencing a pregnancy over the course of a year.3
In the United States, the average desired family size is two children. To achieve this family size, a woman must use contraceptives for roughly three decades.4
WHO USES CONTRACEPTIVES?
More than 99% of women aged 15–44 who have ever had sexual intercourse have used at least one contraceptive method.5
Some 60% of all women of reproductive age are currently using a contraceptive method.6
Ten percent of women at risk of unintended pregnancy are not currently using any contraceptive method.6
The proportion of women at risk of unintended pregnancy who are not using a method is highest among those aged 15–19 (18%) and lowest among those aged 40–44 (9%).2
Eighty-three percent of black women at risk of unintended pregnancy are currently using a contraceptive method, compared with 91% of their Hispanic and white peers, and 90% of their Asian peers.2
Among women at risk of unintended pregnancy, 92% of those with an income of at least 300% of the federal poverty level and 89% of those living at 0–149% of poverty are currently using a contraceptive method.2
A much higher proportion of married women than of never-married women use a contraceptive method (77% vs. 42%), largely because married women are more likely to be sexually active. But even among those at risk of unintended pregnancy, contraceptive use is higher among currently married women than among never-married women (93% vs. 83%).2
Unmarried women who are cohabiting fall between married women and unmarried women who are not cohabiting: Some 90% of at-risk women living with a partner use a method.2
Contraceptive use is common among women of all religious denominations. For example, eighty-nine percent of at-risk Catholics and 90% of at-risk Protestants currently use a method. Among sexually experienced religious women, 99% of Catholics and Protestants have ever used some form of contraception.7
WHICH METHODS DO WOMEN USE?
Seventy-two percent of women who practice contraception currently use nonpermanent methods—primarily hormonal methods (i.e., the pill, patch, implant, injectable and vaginal ring), IUDs and condoms. The rest rely on female (22%) or male (7%) sterilization.6
The pill and female sterilization have been the two most commonly used methods since 1982.6,8,9
Four out of five sexually experienced women have used the pill.5
The pill is the method most widely used by white women, women in their teens and 20s, never-married and cohabiting women, childless women and college graduates.2
The use of hormonal methods other than the pill has increased with the advent of new options. The proportion of women who have ever used the injectable increased from 5% in 1995 to 23% in 2006–2010. Ever-use of the contraceptive patch increased from less than 1% in 2002 to 10% in 2006–2010. Six percent of women had used the contraceptive ring in 2006–2010, the first time this method was included in surveys.5
Reliance on female sterilization varies among subgroups of women. It is most common among blacks and Hispanics, women aged 35 or older, ever-married women, women with two or more children, women living below 150% of the federal poverty level, women with less than a college education, women living outside of a metropolitan area, and those with public or no health insurance.2
Some 68% of Catholics, 73% of Mainline Protestants and 74% of Evangelicals who are at risk of unintended pregnancy use a highly effective method (i.e., sterilization, the pill or another hormonal method, or the IUD).7
Only 2% of at-risk Catholic women rely on natural family planning; the proportion is the same even among those who attend church at least once a month.7
In 2014, about 14% of women using a contraceptive relied on a long-acting reversible contraceptive method, or LARC (12% used the IUD and 3% used the implant).6 This follows a trend in increasing proportions of women using LARCs, from 2% in 2002 to 6% in 2007 and 9% in 2009.10,11
Among contraceptive users, the groups of women who most commonly use an IUD or implant are 25–34-year-olds, those born outside of the United States, those living in a Western state, those who report their religious affiliation as “other” and those who have ever stopped using a non-LARC hormonal method. At least 16% of women in these groups use a LARC method.10
Among female contraceptive users in the United States, those most likely to use a LARC method are women who have had a child and those who have ever stopped using a non-LARC hormonal method.10
Some 5.5 million women rely on the male condom. Condom use is most common (i.e., at least 25% greater than the national average of 15%) among 15–19-year-olds, those who report their religious affiliation as “other,” those born outside of the United States, college graduates, those who are uninsured and those who are nulliparous or are expecting at least one (more) child.6
Ever-use of the male condom increased from 52% in 1982 to 93% in 2006–2010.5
Dual method use offers protection against both pregnancy and STIs. Some 8% of women of reproductive age simultaneously use multiple contraceptive methods (most often the condom combined with another method).12
The proportion of all sexually experienced women who have ever used withdrawal increased from 25% in 1982 to 60% in 2006–2010.5
Seven percent of men aged 15–44 have had a vasectomy; this proportion increases with age, reaching 16% among men aged 36–45.13
No doubt some Christian leaders have gone too far in rationalizing Trump’s past personal behavior and excusing his offensive comments while in office. He is a deeply flawed man. But Trump does have one moral quality that deserves admiration: He keeps his promises.
During the 2016 campaign, Trump pledged to defend religious liberty, stand up for unborn life and appoint conservative jurists to the Supreme Court and federal appeals courts. And he has done exactly what he promised. The abortion-rights lobby NARAL complains that Trump has been “relentless” on these fronts, declaring his administration “the worst .?.?. that we’ve ever seen.” That is more important to most Christian conservatives than what the president may have done with a porn actress more than ten years ago.
Trump’s election came as religious liberty was under unprecedented attack. The Obama administration was trying to force the Little Sisters of the Poor to violate their religious conscience and facilitate payment for abortifacient drugs and other contraceptives. During oral arguments in the Obergefell v. Hodges case, President Barack Obama’s solicitor general told the Supreme Court that churches and universities could lose their tax-exempt status if they opposed same-sex marriage.
Hillary Clinton promised to escalate those attacks. In 2015, she declared at the Women in the World Summit that “religious beliefs … have to be changed” — perhaps the most radical threat to religious liberty ever delivered by a major presidential candidate. Had Clinton won, she would have replaced the late conservative Justice Antonin Scalia with a liberal jurist, giving the Supreme Court a liberal judicial-activist majority.
The impact would have been immediate, as the court prepares to decide two cases crucial to religious liberty.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court will soon determine whether the government can compel a U.S. citizen to violate his conscience and participate in speech that violates his sincerely held religious beliefs.
In National Institute of Family Life Advocates v. Becerra, the Court will decide whether the state of California can compel pro-life crisis pregnancy centers to advertise access to abortion to their clients, in violation of their conscience.
.. The president is moving at record pace to fill the federal appeals courts with young conservative judges who will protect life and religious freedom for decades. He also fulfilled his promise to defend the Little Sisters from government bullying, by expanding the religious and conscience exemption to the Obamacare contraception mandate to cover both nonprofit and for-profit organizations.
.. Trump ordered the creation of the Conscience and Religious Freedom Division at the Department of Health and Human Services to protect the civil rights of doctors, nurses and other health-care workers who refuse to take part in procedures such as abortion, reversing an Obama-era policy that required them to do so. And his Justice Department issued 25-page guidance to federal agencies instructing them to protect the religious liberty in the execution of federal law.
While Clinton promised to repeal the Hyde Amendment barring federal funds for abortion, Trump has been a pro-life champion. He became the first president to address the March for Life when he spoke by satellite video from the White House’s Rose Garden. He reinstated and expanded the “Mexico City policy” — which prohibits U.S. foreign aid from going to groups that perform or promote abortion. He signed legislation overturning an Obama-era regulation that prohibited states from defunding abortion service providers.
.. Indeed, Trump has arguably done more in his first year in office to protect life and religious freedom than any modern president. Little wonder that religious conservatives stick with him despite the Daniels revelations. This is not to say that Christians don’t think a culture of fidelity is important. But the culture of life is important too. So is a culture that is welcoming to religious believers rather than waging war on them.
No one upholds Trump as moral exemplar. He is not the most religious president we have ever had, but he may be the most pro-religion president. Christian conservatives are judging Trump not by his faith, but by his works. And when it comes to life and liberty, his works are good.
Francisco had originally been named as the No. 2 in the solicitor general’s office, which represents the federal government in appellate courts. He might be best known as the lawyer who represented former Virginia governor Robert F. McDonnell last year when the Supreme Court unanimously overturned McDonnell’s conviction on corruption charges.
.. The solicitor general is considered to be one of the nation’s best legal jobs, and the occupant is often referred to as the “10th justice.
.. Jeffrey B. Wall, a veteran of the office who now works for the firm Sullivan & Cromwell, will assume Francisco’s role as principal deputy.
.. representatives of the Trump transition approached U.S. Circuit Court Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — an influential judicial voice on the right — to see whether he would be interested in the job.
.. For a time, there appeared to be two front-runners. One was George T. Conway III, a New York lawyer who received high marks from those in the Supreme Court bar and who is also married to Trump adviser Kellyanne Conway.
.. The other was Charles Cooper, a Washington legal fixture and confidant of Attorney General Jeff Sessions.
.. Cooper pulled out of consideration, and the Trump administration expanded its search.
.. he has had to recuse himself from some of the most important cases, such as the legal battle over Trump’s first travel ban executive order, because his law firm Jones Day represented parties in the dispute.
.. Francisco is a former clerk to Justice Antonin Scalia
.. Francisco was part of the team that represented President George W. Bush in the 2000 Florida presidential election recount.
.. He was raised in Oswego, N.Y., and both his undergraduate and law degrees are from the University of Chicago.
.. he represented religiously affiliated organizations that said providing contraception services for their female employees would implicate them in sin.
