Judge Brett Kavanaugh received pro-life groups’ ringing endorsements and provoked fear in some progressives after President Donald Trump announced he would nominate him to fill Supreme Court Justice Anthony Kennedy’s seat.
Many expected Kennedy’s retirement to put a pro-life, conservative judge on the court who would help overturn Roe v. Wade, the landmark ruling that prevented states from outlawing some abortions. The ruling, established in 1973, ushered in decades of liberalized abortion access, and many saw Kennedy’s retirement as a chance to finally end that.
But according to some conservatives, the movement shouldn’t be so quick to celebrate.
Writing in The Washington Post, conservative writer David French lamented Trump’s nominee as a lost opportunity. Instead, French argued, Amy Coney Barrett was preferable to the elitist and yet well-credentialed Kavanaugh.Fox News/YouTube
French and fellow conservative writer Ben Shapiro — both graduates of Harvard Law School — speculated that while Kavanaugh may help the court weaken abortion access, his confirmation wouldn’t ensure Roe’s demise:
I hope I’m wrong, but I fear that the Kavanaugh abortion legacy won’t be reversing Roe but rather watering down Casey’s “undue burden” standard — like feminists feared would happen when Casey was first decided.
— David French (@DavidAFrench) July 10, 2018
Chances are VERY slim that a Roberts-Kavanaugh court overturns Roe v. Wade. More likely, as @DavidAFrench contends, that they gradually narrow the scope of “undue burden” under Planned Parenthood v. Casey.
— Ben Shapiro (@benshapiro) July 10, 2018
In a statement to IJR, Shapiro specified that Kavanaugh and Chief Justice John Roberts likely wouldn’t grant a writ of certiorari — a procedure bringing cases from a lower court to the Supreme Court — to a direct challenge against Roe.
Granting cert, as Shapiro noted, requires at least four votes from the justices. It’s unlikely that either of the four left-leaning justices would vote to allow Roe to come before a Court bearing a conservative majority.Joshua Blanchard/Getty Images
Even if the other three conservative justices — Neil Gorsuch, Samuel Alito, and Clarence Thomas — voted to elevate a direct challenge to Roe, Roberts and Kavanaugh might withhold the additional vote needed for the four-vote threshold.
Kavanaugh’s record reportedly held little indication as to his judicial leanings on abortion. While Kavanaugh is a practicing Catholic, he’s also said he would respect the precedent set by Roe.
Kavanaugh addressed that issue directly during his confirmation hearing to serve as a judge for the D.C. Circuit. During his hearing in 2006, Kavanaugh refused to offer his personal opinion on Roe but said that the Supreme Court already decided the issue and that he would “faithfully” follow Roe v. Wade.
“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court,” he said.
.@SenSchumer: “Do you consider Roe v. Wade to be an abomination?”
Brett Kavanaugh: “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It’s been decided by the Supreme Court.” https://t.co/jW09LbeDOZ pic.twitter.com/AEDRY6bCYt
— CSPAN (@cspan) July 10, 2018
But that apparently wasn’t enough to quell some people’s concerns about Roe. ThinkProgress editor Judd Legum pointed out that Kavanaugh said he would respect Roe as a circuit court judge, not as someone who would serve on the nation’s highest court:
Don’t be fooled by folks who say Kavanaugh said he would respect Roe v Wade as binding precedent during his last confirmation. He said he would respect Supreme Court precedent as a CIRCUIT COURT JUDGE
That’s very different than being a Supreme Court Justice pic.twitter.com/JiCGhqBwVV
— Judd Legum (@JuddLegum) July 10, 2018
Some critics, like NARAL Pro-Choice America President Ilyse Hogue, pointed to Kavanaugh’s decision in 2017 involving an undocumented teenage immigrant who sought an abortion while in federal custody.
In a decision reversed just days later, Kavanaugh and two others blocked a district court order allowing the undocumented teen to leave a government shelter and obtain the abortion.
“Kavanaugh recently argued that a young woman, despite meeting all of Texas’ burdensome requirements to get an abortion, should not be permitted to access essential health care,” Hogue said, apparently referencing the 2017 decision:
“We can’t forget what America was like before Roe & even today, the right to make the most fundamental decisions abt our bodies & lives has been all but eradicated. Kavanaugh would use the Court as a tool to doom all women to that fate.” NARAL President @ilyseh on #SCOTUSPick ↓ pic.twitter.com/o3fCwDZbx0
— NARAL (@NARAL) July 10, 2018
For Hogue and others, Kavanaugh was too much of a potential threat to abortion access in the United States. Shapiro, however, highlighted Kavanaugh’s minimalist inclinations — favoring small alterations to precedent rather than broad, sweeping decisions — as a roadblock that would make him stop short of completely overturning Roe:
It’s unlikely that Roberts and Kavanaugh will grant cert on a straight-up challenge to Roe. It’s far more likely that we’ll see Roberts and Kavanaugh grant cert on cases that pare away at Roe via the “undue burden” standard articulated in Planned Parenthood v. Casey (1992).
In Planned Parenthood v. Casey, the Court ruled that the state could regulate abortions to the point at which they didn’t provide an “undue burden” on access. That standard applied to laws with a “purpose or effect […] to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
Kavanaugh could very well face a case involving undue burden claims as the nation faces multiple legal battles over abortion regulations across several states. His apparent minimalism might have explained why he didn’t flatly deny that the teen who was undocumented should have access to abortion.
He instead ruled that the teen should wait for the administration to assign a legal guardian who could take her to the procedure. In that case, Kavanaugh wrote, “All parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow.
“All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States,” he added.