Brett Kavanaugh’s War on Roe v. Wade

This article was originally published at The Progressive.

On September 4, at the outset of his confirmation hearing before the Senate Judiciary Committee, Brett Kavanaugh pledged that if he became the 114th Justice of the U.S. Supreme Court, he would serve as a fair decider of the law.

“A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy,” Kavanaugh told the committee. “I don’t decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge.”

Even before Dr. Christine Blasey Ford testified in late September that Kavanaugh had tried to rape her in 1982, when he was a seventeen-year-old high school student, Kavanaugh’s critics weren’t buying the umpire metaphor. They believed that Kavanaugh, if confirmed, would operate as a conservative judicial activist bent on moving the high tribunal hard to the right. Women’s groups, in particular, feared that Kavanaugh would provide a fifth and decisive vote to gut, and eventually overturn, Roe v. Wade.

It hasn’t taken Kavanaugh long to reveal his true ideological colors. He took his seat as an Associate Justice in October, and the big reveal came on February 7. That’s when the court voted 5-4 in the case of June Medical Services, LLC v. Gee to “stay” (i.e., block) a draconian Louisiana abortion law from taking effect.

Enacted in 2014, the Louisiana law would require that state’s abortion doctors to have active admitting privileges at a hospital within thirty miles of any clinic where they provide abortion services. Currently, there are only three abortion clinics in Louisiana. Just four doctors staff the clinics, and only one has the requisite admitting credentials. If allowed to take effect, abortion-rights proponents charge, the law would put at least one and possibly two of the clinics out of business due to the location of licensed hospitals, especially in rural areas.

On its face, the Louisiana statute is clearly unconstitutional in light of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the court struck down a nearly identical Texas law that required physicians who perform abortions to have admitting privileges at nearby hospitals. By a 5-3 margin reached after the death of Antonin Scalia, the court held that the Texas law placed an undue burden on women seeking abortion access in violation of both Roe and the court’s 1992 ruling in Planned Parenthood v. Casey, which affirmed Roe’s validity.

Although a federal district court judge declared the Louisiana law unconstitutional, the Fifth Circuit Court of Appeals reversed the judge last year in a thinly veiled challenge to the Whole Woman’s Health decision. The circuit’s ruling allowed the statute to be implemented as the state’s abortion providers petitioned the Supreme Court to review the case on its merits.

Unwilling to wait months for the Supreme Court to decide whether to grant their petition, the providers asked the court in late January to stay the Fifth Circuit’s decision for the duration of the appeals process.

Under the Supreme Court’s rules, it takes five votes to stay a lower-court action. But with Chief Justice Roberts joining the court’s four liberal members, the court granted the requested stay in a brief unsigned order.

Kavanaugh, along with Justices Alito, Thomas, and Gorsuch, dissented from the stay. Only Kavanaugh, however, wrote a separate signed opinion, setting forth his opposition.

Kavanaugh’s reasoning, according to Slate magazine’s legal-affairs columnist Mark Joseph Stern, is nothing less than “a declaration of war on Roe v. Wade.” While Kavanaugh’s dissent acknowledges that Whole Woman’s Health is controlling precedent, he nonetheless asserts that the abortion doctors who lack current hospital admitting privileges should be required to prove they cannot obtain those privileges.

Implicit in Kavanaugh’s opinion is the position, rejected in Whole Woman’s Health, that mandating abortion doctors to have active hospital-admitting privileges would confer a medical benefit on women rather than burden women with diminished access to abortion services.

Kavanaugh’s opinion stands sharply at odds with a March 2018 report from the National Academies of Sciences, Engineering, and Medicine, which found that the vast majority of abortions can be, and are, provided safely in office-based settings.

For the time being, Kavanaugh has been held in check, thanks to Roberts’s intervention. But for abortion-rights advocates, any celebrations are premature. The Louisiana litigation isn’t over, but has merely been put on hold temporarily, pending review by the Supreme Court of the underlying merits of the law.

Unfortunately, if the Supreme Court opts to review the case, it is by no means certain that Roberts will vote to follow Whole Woman’s Health and strike down the Louisiana law. Roberts was one of the three dissenters in Whole Woman’s Health. Voting to stay the Fifth Circuit’s ruling on Louisiana’s new abortion law is a procedural act that in no way precludes Roberts from switching sides and joining Kavanaugh in a decision on the merits.

Despite all that has been written lately about Roberts as the court’s new swing vote, the Chief Justice is still a staunch conservative. He also has a history of rightwing activism, having joined with conservative majorities in such sea-changing landmarks as District of Columbia v. Heller on the Second Amendment, Citizens United v. Federal Election Commission on campaign finance, and authoring the majority opinion in Shelby County v. Holder, which gutted the Voting Rights Act. Last year, Roberts wrote the 5-4 majority opinion in Trump v. Hawaii, upholding the President’s Muslim travel ban.

So when the dust finally settles on the Louisiana law, Kavanaugh’s views may yet prevail, undermining abortion rights and bringing us one step closer to a final legal showdown on Roe v. Wade.