Trump Judges on: Reproductive Rights

Trump judges and nominees who have fought to limit access to abortion and/or contraception:

J. Campbell Barker (Eastern District of Texas) was a lead attorney defending Targeted Regulation of Abortion Providers (or “TRAP”) anti-choice laws, which the Supreme Court struck down as unconstitutional in Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016). The Court found that the law had imposed undue burdens, including mandating hospital admitting privileges for abortion providers and requiring that clinics conform to the structural standards of ambulatory surgical centers. Barker also signed briefs in other cases where religious nonprofits challenged the ACA contraception mandate.

Amy Coney Barrett (Seventh Circuit) has been critical of Roe v. Wade. In one article, it was reported that Barrett stated that the “framework of Roe essentially permitted abortion on demand, and Roe recognizes no state interest in the life of a fetus.” Barrett also signed a letter authored by The Becket Fund criticizing the Affordable Care Act’s requirement that employers provide contraceptive coverage as part of their employer-sponsored health insurance plans. In Planned Parenthood v. Box, Barrett joined a dissent that tried to reconsider a previous ruling affirming a preliminary injunction against an Indiana law that would require minors to obtain parental consent before getting an abortion, in violation of clear Supreme Court precedent.

Andrew Brasher (Middle District of Alabama; Eleventh Circuit) defended an unconstitutional law that would allow a judge to appoint an attorney for a fetus and the district attorney to call witnesses to testify regarding a minor’s maturity. He has defended other unlawful anti-choice policies, including laws requiring abortion providers to have admitting privileges at nearby hospitals, restricting where facilities that provide abortions can be located based on proximity to schools, and “effectively criminaliz[ing] the most common method of second-trimester abortions.” In 2014, Brasher, on behalf of the attorney general of Alabama, told a crowd, “The ACLU and Planned Parenthood want a fight and we will give them one.” Brasher challenged the contraceptive mandate in the ACA, and, in his personal capacity, even questioned the validity of Planned Parenthood v. Casey.

Jeffrey Brown (Southern District of Texas) bragged about his involvement in making it more difficult for minors to seek abortion care in Texas, referred to IUDs and emergency contraceptives as “potentially life-terminating drugs and devices” and “abortifacients,” and was endorsed by major anti-choice organizations in Texas.

Liles Burke (Northern District of Alabama), as a state court judge, held in Ankrom v. State, 152 So.3d 373 (2011) that the word “child” in Alabama’s child endangerment statute applies to the unborn.

John Bush (Sixth Circuit) likened abortion to slavery: “[t]he two greatest tragedies in our country—slavery and abortion—relied on similar reasoning and activist justices at the U.S. Supreme Court, first in the Dred Scott decision, and later in Roe.”

Stephen Clark (Eastern District of Missouri) said that Roe v. Wade “gave doctors a license to kill unborn children. Like the Dred Scott decision, Roe is BAD law.”

Daniel Collins (Ninth Circuit) fought to make it harder for women to obtain contraceptives and other basic healthcare. He filed amicus briefs in several cases to support religious nonprofits’ challenges to the Affordable Care Act’s contraceptive mandate, to argue that “provid[ing] seamless coverage of contraceptive services for women” and “provid[ing] cost-free contraceptive coverage” are not “compelling governmental interests,” and to strike down a Baltimore City ordinance that required pregnancy clinics that do not offer or provide referrals for abortion care to post disclosure signs in their waiting areas.

Kyle Duncan (Fifth Circuit) represented Hobby Lobby in its efforts to avoid providing contraceptive coverage to over 13,000 employees as required by the Affordable Care Act.

Allison Eid (Tenth Circuit), while on the Colorado Supreme Court, twice dissented from the denial of a writ of certiorari in a case involving graphic images of aborted fetuses displayed by protesters during church services. Applying strict scrutiny based on the compelling interest of protecting children from disturbing images, the Colorado Court of Appeals upheld an injunction preventing such displays.

Neil Gorsuch (Supreme Court) on the Supreme Court joined the other conservative Supreme Court justices in striking down California’s disclosure laws for fraudulent “crisis pregnancy centers” as unconstitutional compelled speech. Justice Breyer, in his dissent, pointed out how the decision “radically change[d] prior law.” Gorsuch joined Justices Samuel Alito and Clarence Thomas in dissenting from the Court’s decision not to hear a lower court case that had invalidated state actions that defunded Planned Parenthood. On the Tenth Circuit, he held that the Department of Health and Human Services could not require closely-held for-profit corporations to provide contraceptive coverage as part of their employer-sponsored health insurance plans if the corporation said that doing so conflicted with its religious beliefs. In Planned Parenthood Assoc. of Utah v. Herbert, moreover, he went to extraordinary lengths to allow the state of Utah to defund Planned Parenthood.

Britt Grant (Eleventh Circuit) defended a “fetal pain” law passed by the Georgia legislature. The law made it illegal for doctors to perform abortion after 20 weeks of pregnancy, with a few exceptions.

Steven Grasz (Eighth Circuit) has written that the historic denial of civil rights to Native Americans and African Americans is comparable to the “denial” of civil rights to aborted fetuses. As Chief Deputy Attorney General of Nebraska, Grasz defended laws banning abortion procedures as well as laws prohibiting the use of public funds for state grants to organizations that provided abortion-related services.

James Ho (Fifth Circuit) is associated with the First Liberty Institute, an organization that has taken strong stances against women’s reproductive rights. On the bench, Ho joined a Fifth Circuit panel that reversed a lower court order requiring the Texas Conference of Catholic Bishops to comply with a subpoena. In so doing, he made clear his views regarding the right to decide whether to have an abortion.

Matthew Kacsmaryk (Northern District of Texas) described Roe v. Wade as follows: “[S]even justices of the Supreme Court found an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye.” He also vigorously opposed the Affordable Care Act employer contraceptive mandate, representing an organization that sought to avoid providing the healthcare required by the Department of Health and Human Services to female employees. His organization, the First Liberty Institute, has taken a hard-line stance against the contraception provision of the Affordable Care Act.

Gregory Katsas (D.C. Circuit) litigated multiple cases during his time in the Bush Administration where the government attempted to limit the rights of women to contraception and abortion access.

Brett Kavanaugh (Supreme Court), while on the D.C. Circuit, dissented in the case involving a young immigrant woman in government custody, Jane Doe, access to abortion care in Garza v. Hargan, 874 F.3d 735 (2017) even after she successfully followed and completed all of the burdensome requirements mandated by Texas to have the procedure. In allowing her to receive an abortion after completing various procedural hurdles, Kavanaugh argued that the D.C. Circuit created “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”

Jonathan Kobes (Eighth Circuit) represented, pro bono, a group of fake women’s health centers seeking to uphold a South Dakota law that required physicians to read a predetermined script to women seeking an abortion. Under the law, the abortion care provider was required to tell women seeking abortion care that abortion ends “the life of a whole, separate, unique, living human being,” that she has an “existing relationship” with the “unborn human being” and that abortion increases the risk of suicide.

Jeff Mateer (Nominated to Eastern District of Texas; Withdrawn) criticized Roe v. Wade. In a blog post he wrote, “In 1973, seven unelected judges determined that, despite hundreds of years of contrary precedent, the unborn had no right to life. Since that time, 52 million innocent lives have been taken. This past year over 1 million lives were terminated. Today alone, in abortion mills throughout the country, 2,739 babies will be killed. For over the past 30 years, we seem to be living in a society that does not honor life, but instead promotes a culture of death.” Mateer also represented four “crisis pregnancy centers” which claimed that their rights were violated when an Austin, Texas ordinance required them to post signage stating that they do not provide medical services. He also compared the contraceptive coverage mandate under the Affordable Care Act to oppression in Nazi Germany.

Steven Menashi (Second Circuit) authored an amicus brief, pro bono, opposing the Affordable Care Act’s contraceptive mandate. He wrote an article praising the “consensus that opposes the radical abortion rights advocated by campus feminists and codified in Roe v. Wade.

Eric Miller (Ninth Circuit) signed briefs while working at the Justice Department that advanced the Bush Administration’s efforts to restrict access to abortion care.

Eric Murphy (Sixth Circuit) submitted a brief to the Supreme Court arguing in support of an Arizona law that prohibited certain abortions pre-viability. Murphy also defended a law targeting Planned Parenthood that would have cut off critical health funds, including funding for breast and cervical cancer prevention and sexual violence prevention, to any entity that provides abortion services.

Howard Nielson (District of Utah) coauthored an amicus brief in Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016) arguing that the Supreme Court should uphold restrictive abortion regulations in Texas. These regulations required that all outpatient abortion providers meet untenable standards that would have shut down many women’s health facilities, making it incredibly difficult for women in Texas to safely access abortion providers.

Mark Norris (Western District of Tennessee) co-sponsored a resolution in Tennessee that would ban abortion even if necessary to protect the mother’s life or in cases of rape or incest. Also, as a state legislator he voted for a resolution urging Congress to overturn the ACA’s contraceptive-coverage policy. The resolution referred to the Obama Administration as “reminiscent of totalitarian and authoritarian regimes” and called the policy a “direct assault on people of faith and the very Constitution itself.”

Andrew Oldham (Fifth Circuit) was a lead attorney defending the Texas law consisting of a series of provisions known as Targeted Regulation of Abortion Providers (TRAP) laws. Oldham also defended Texas’s controversial effort to bar reproductive health organizations from receiving funding through the Texas Women’s Health Program.

Michael Park (Second Circuit) represented the state of Kansas in Planned Parenthood of Kansas v. Andersen, 882 F.3d 1205 (10th Cir. 2018), after it attempted to defund Planned Parenthood and banned it from participating in the state Medicaid program. Park was also involved in defending the Trump Administration’s attack on the right of a young immigrant woman in government custody, Jane Doe, to access abortion care, in Garza v. Hargan, 304 F. Supp. 3d 145 (D.D.C. 2018).

Peter Phipps (Third Circuit) was the lead attorney for the DOJ in ACLU v. Azar. Phipps defended a Health and Human Services policy to provide grants to institutions that had “religious objection[s] to providing access to abortion or contraception.”

Sarah Pitlyk (Eastern District of Missouri) has devoted nearly her entire career to fighting women’s reproductive freedom. She has criticized “gross defects in the Supreme Court’s thoroughly activist abortion jurisprudence,” supported Trump’s Title IX gag rule, and defended Iowa’s unconstitutional “Heartbeat Bill,” which would have banned abortion once a fetal heartbeat is detected, before most women even know they are pregnant. In addition, she has defended David Daleiden, the architect of the deceptively-edited “sting” videos which purport to show Planned Parenthood employees selling fetal parts for money. She even opposed assistive reproductive technologies like in vitro fertilization and surrogacy, going so far as to state that “surrogacy is harmful to mothers and children, so it’s a practice society should not be enforcing.” Further she has fought for the personhood status of embryos, even suggesting that disposing of unused embryos is akin to murdering children.

Neomi Rao (D.C. Circuit) frequently uses her ideas regarding “dignity” in constitutional law as an ideological framework to couch problematic stances regarding social justice. Using this framework, Rao cited “dignity” in expressing her opposition to a woman’s right to access health care. For example, in a 2011 article titled “Dignity as Intrinsic Human Worth,” Rao twisted the reasoning the Supreme Court outlined in Planned Parenthood v. Casey, 505 U.S. 833 (1992), to allude that the “dignity” of fetuses should perhaps override the right of women to control decisions regarding their health care. Rao explained how Casey “explicitly connected dignity, autonomy, and choice as ‘central to the liberty protected by the Fourteenth Amendment.’” She then challenged this reasoning by stating that while “the plurality highlighted the inherent dignity of a woman’s freedom to choose an abortion . . . it minimized the competing inherent dignity of the fetus to life.” In Rao’s view, courts “have often avoided the conflict by emphasizing the centrality of one of these dignities at the expense of the other.”

William McCrary Ray II (Northern District of Georgia) voiced his strong support for measures banning late-term abortions.

Chad Readler (Sixth Circuit) attacked the right of a young immigrant woman in government custody, Jane Doe, to have access to abortion care in Garza v. Hargan, 874 F.3d 735 (2017) even after she successfully followed and completed all of the burdensome requirements mandated by Texas to have the procedure. Readler also supported overturning the Ninth Circuit’s decision upholding regulations against fake women’s health centers in NIFLA v. Becerra, 138 S.Ct. 2361 (2018).

Lee Rudofsky (Eastern District of Arkansas) questioned the constitutional basis of the right to choose and defended corporations that wish to deny reproductive health care coverage to employees. He led the effort to strip Medicaid funding from Planned Parenthood in Arkansas, and assisted other states, including Louisiana and Texas, in their attempts to block individuals from accessing vital health care. Rudofsky also supported Arkansas’ efforts to implement a 12-week abortion ban—and, more broadly, has supported targeted restrictions on abortion providers (TRAP laws) that aim to impose unnecessary, burdensome requirements on abortion providers and prevent them from performing crucial and constitutionally affirmed healthcare services.

Damien Schiff (Nominated to Court of Federal Claims; Withdrawn) wrote numerous pieces stating his disagreement with a woman’s right to choose whether to have an abortion. In a blog post, Schiff wrote: “I am not saying that people in favor of legalized abortion are morally decrepit (although I would consider their view on this matter to be gravely in error).” He also wrote that with regard to “forbidding women to abort their unborn children . . . at most it might be a deprivation of liberty within the meaning of the DPC [Due Process Clause], but that position, although conceptually less disagreeable than the EPC [Equal Protection Clause] argument, is nevertheless without originalist merit.”

Brantley Starr (Northern District of Texas) testified in support of a bill to restrict access to reproductive care by imposing harsh and medically unnecessary requirements on abortion care providers. In Whole Woman’s Health v. Paxton, he defended a Texas law criminalizing a vital, safer second-trimester abortion procedure. He also represented Texas in Franciscan Alliance, Inc. v. Burwell, a controversial, multi-state case challenging the Affordable Care Act’s anti-discrimination provision—a challenge that, if successful, would result in severe health consequences for women seeking reproductive care. Additionally, Starr advocated, “based solely on videos made by a radical anti-abortion group with ties to violent extremists,” for the termination of Medicaid agreements with Planned Parenthood. He also misrepresented information about local authorities to support the Texas AG’s office takeover of the criminalization and prosecution of abortion from local officials.

Brett Talley (Nominated to Middle District of Alabama; Withdrawn) called Roe v. Wade “indefensible.” In an online commentary, Talley also wrote that voters should support Trump “if you want justices who adhere to the Constitution, laws that respect unborn life.”

Michael Truncale (Eastern District of Texas), a strong opponent of abortion care, boasted on his 2012 campaign website that he was “the only congressional candidate to participate in a recent March for Life, ecumenical March for Life.” Calling for defunding of Planned Parenthood, he has also described the Affordable Care Act’s contraceptive-coverage policy as an “assault on the Catholic Church” because “now you have the government telling religion what to do.” Truncale was particularly vicious about Wendy Davis, the Texas Democrat who in 2015 held a thirteen-hour-long filibuster to block a bill that severely restricted abortion care in Texas, describing “Wendy Davis’ Claim to fame-kills little girls.”

Lawrence VanDyke (Ninth Circuit) submitted an amicus brief to the Supreme Court in support of Arizona’s twenty-week abortion banarguing that “an unborn child can feel pain by twenty weeks’ gestation.” In his brief, VanDyke asked the justices to reconsider Roe v. Wade. He also supported challenging the legality of “buffer zones,” which create a small zone outside of clinics through which patients and providers can enter without facing harassment from protesters. In Montana, he advocated for signing on to an Alabama comment letter that challenged the Affordable Care Act’s contraception mandate

Wendy Vitter (Eastern District of Louisiana) urged supporters to distribute materials that claimed abortion services are a cause of breast cancer and that birth control pills “kill” and make a woman more likely to be the victim of violent assault and murder. Vitter also publicly lauded how Texas has “led the nation in some very pro-life, restrictive laws,” and how anti-choice activists “are making great strides in making it very difficult to get abortions in Texas.”

Justin Walker (DC Circuit; previously Western District of Kentucky) praised then-Judge Kavanaugh for a dissent arguing that the Obama Administration’s contraceptive-coverage policy, ensuring that employer-based insurance policies made the full range of birth control options available to employees, was unconstitutional.

Cory Wilson (Fifth Circuit) bemoaned that “[f]orty years on, we still live under Roe v. Wade, the result of a liberal activist court.” He said that he supports “the complete and immediate reversal of the Roe v. Wade and Doe v. Bolton decisions.”  As a legislator in Mississippi, Wilson voted to defund Planned Parenthood, for a 15-week abortion ban, and a bill to prohibit abortions after a heartbeat can be detected in a fetus. Wilson also supports requiring that any woman considering an abortion must first be provided with information about a fetus’ capacity to feel pain.

Allen Winsor (Northern District of Florida) defended a Florida law that imposed a mandatory 24-hour waiting period before accessing abortion care. In April 2016, the Florida Supreme Court blocked the law, and it was recently declared unconstitutional. Winsor also filed an amicus brief in opposition to the Affordable Care Act’s contraceptive coverage mandate.

Patrick Wyrick (Western District of Oklahoma), as Solicitor General of Oklahoma, fought reproductive rights for women, including supporting laws that limit access to contraception.