Currently, 19 states have "Pain-Capable" laws banning abortions after five months of pregnancy, except in cases of rape, incest, or when the life of the mother is at stake.
Rather than voicing support or opposition for such laws, Gorsuch simply promised that if an abortion law case came before him as a Supreme Court justice, he would, as Graham had asked, "look at the facts," "read the briefs," and "make a decision" from that.
Sen. Grassley also asked about the Griswold decision of 1965 that legalized contraception in the U.S. based on a right to privacy of married couples. Gorsuch answered that the case has precedent as it is "50 years old."
"It's been repeatedly reaffirmed, all very important factors again, in analyzing precedent."
Senators also pressed Gorsuch about religious freedom cases, particularly the application of the Religious Freedom Restoration Act to jurisprudence. RFRA was a law passed in 1993, and it set up a test to determine cases where a person claimed their free exercise of religion had been violated by the federal government.
The government may not "substantially burden" one's free exercise of religion, the law says, unless it proved that its law "furthered a compelling governmental interest" and was the "least-restrictive means" of doing so.
RFRA has surfaced in Supreme Court cases as of late, especially in cases of employers or religious non-profits against the government's birth control mandate. That mandate forces employers to provide cost-free coverage for sterilizations, contraceptives, and drugs that can cause abortions in employee health plans.
Gorsuch, while on the Tenth Circuit, ruled in favor of Hobby Lobby, an arts-and-crafts chain owned by a Christian family who claimed that the mandate violated their religious freedom because they had to provide employees coverage for drugs they believed caused abortions.
He insisted on Tuesday that the religious freedom law "applies not just to Hobby Lobby. It also applies to the Little Sisters of the Poor and protects their religious exercise," he said, and protected a Muslim prisoner in Oklahoma who wanted to keep his beard at a certain length for religious purposes against prison rules.
Gorsuch joined the dissent in the case of the Little Sisters of the Poor where they claimed that the federal government's "accommodation" offered to them to opt-out of the mandate still violated their religious beliefs. The Tenth Circuit ruled against the sisters, but Gorsuch joined the dissent.
In the Hobby Lobby case, critics of the Court's decision said that the business was not protected by RFRA because it was not a "person."
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Gorsuch explained how he reasoned that the law protected "closely-held for-profit corporations" as well.
The Green family claimed they owned "a small, family-held company," Gorsuch said. "They exhibit their religious affiliation openly in their business. They pipe in Christian music. They refuse to sell alcohol or things that hold alcohol. They close on Sundays though it costs them a lot."
"Congress didn't define the term" of "person" when they wrote the law, he continued. The Court invoked the "Dictionary Act," which states that "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals."
"So you can't rule out the possibility that some companies can exercise religion," Gorsuch said. "And of course we know churches are often incorporated. And we know non-profits like Little Sisters, or hospitals can practice religion. In fact, the government in that case conceded that non-profit corporations can exercise religion. Conceded that."
Additionally, the birth control mandate was not the "least-restrictive means" of ensuring contraception coverage, he added. The Supreme Court ruled "that it wasn't as strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities."
Matt Hadro was the political editor at Catholic News Agency through October 2021. He previously worked as CNA senior D.C. correspondent and as a press secretary for U.S. Congressman Chris Smith.