On Wednesday, California Senator Dianne Feinstein tried to impress upon Gorsuch that the ruling represents more than a mere court decision. “For the life of me, I really don’t know when you’re there what you’re going to do with it,” she told him. “As you say, this isn’t text, this is real life. Young women take everything for granted today. All of that could be struck out with one decision.” She recalled how earlier in her professional career, which spans the modern history of abortion rights, women obtained abortions in Mexico and were sentenced to prison in California for seeking them.
A similar warning came from Vermont Senator Patrick Leahy, who said the time before Roe represented “dark days that I don’t want to go back to.” Leahy recounted being called to a hospital at 3 a.m. while working as a state’s attorney in the late 1960s to meet a young student who had survived a botched abortion. The man who procured the abortion, Leahy told Gorsuch, would “blackmail [women] for either sex or money” before bringing them to Montreal, where a woman would perform the procedure. Before their trial, Leahy told the defense attorney the woman learned to perform the procedure while “working for the SS at Auschwitz.” With the backdrop of these back-alley abortions, Leahy explained, the Vermont Supreme Court decriminalized abortion before Roe. Gorsuch didn’t reply substantively to these stories, but seeking his response didn’t seem to be the senators’ point in telling them.
Illinois’s Dick Durbin tried to persuade Gorsuch to reveal his abortion views by quoting the judge’s book on euthanasia, in which he said “the intentional taking of human life by private persons is always wrong.” Conservatives have interpreted that line as a signal of Gorsuch’s supposed anti-abortion beliefs.
“How could you square that statement with legal abortion?” Durbin asked him. “Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment, and the book explains that,” Gorsuch replied.
“Do you accept that?” Durbin asked. “That’s the law of the land,” Gorsuch answered. “I accept the law of the land, senator, yes.”
Another caution from Democrats came in the area of campaign-finance reform. Rhode Island Senator Sheldon Whitehouse spent the bulk of his question period describing the effects of “dark money,” a term for political funds by unknown donors. Gorsuch replied by reviewing the precedent surrounding campaign finance. “Congress has ample authority and opportunity to pass campaign-finance laws,” he noted, including on disclosures. But he also pointed to NAACP v. Alabama, a civil-rights-era Supreme Court case that blocked the state from obtaining the organization’s membership rolls.
Whitehouse then laid out an extensive critique of the Court’s Citizens United ruling, which he said undermined public confidence in the political system and the Supreme Court. Gorsuch, in keeping with his careful efforts to avoid revealing his views on cases, didn’t directly engage with those criticisms. But he said it was a “distressing” view that some see the Supreme Court as an extension of the political parties.