Last fall, an undocumented 17-year-old was arrested while crossing the U.S.-Mexico border. The girl, referred to in court documents as Jane Doe, was sent to a private Texas detention center under contract with the Office of Refugee Resettlement. Shortly after her arrival, she learned she was eight weeks pregnant and decided to terminate. The teen had money to pay for her procedure, transportation and the approval of a Texas judge who deemed her “mature and sufficiently well informed to make the decision to have an abortion” (a requirement for minors seeking an abortion in Texas without parental consent).
The only thing standing in the girl’s way was the Trump administration, which refused to allow her to leave the detention center for the appointment. Government lawyers argued that letting her go would violate a decree issued a few months earlier that forbade shelters from taking “any action that facilitates” an abortion without the express permission of the ORR director – a Trump appointee who also happens to be a pro-life zealot.
ACLU lawyers sued the government on the girl’s behalf and the case, Garza v. Hargan, landed in front of a three-judge panel on the D.C. circuit court. One judge believed that because the girl was undocumented she didn’t have any Constitutional rights. Another said she did have rights and that the government was violating them by blocking her from obtaining the abortion. The third judge, Brett Kavanaugh, President Trump’s newest Supreme Court nominee, didn’t dispute the girl’s right to have an abortion. Instead, he proposed a solution that would have trapped her in legal limbo for a few more weeks, running out the clock as her pregnancy advanced and approached Texas’ 20-week cut-off for all legal abortions. The full circuit court ultimately ruled in the ACLU’s favor, and the teenager received her abortion when she was more than 15 weeks pregnant. But if it had been left up to Kavanaugh alone, she probably would have been forced to carry the baby to term against her wishes.
Trump’s nomination of Kavanaugh to the Supreme Court seat vacated by retiring Justice Anthony Kennedy could put the judge in a position to redefine reproductive rights in America for decades to come. That’s an alarming prospect for pro-choice Americans, because in both legal opinions and public speeches, Kavanaugh has left little doubt about the fact that he does not believe in a constitutional right to an abortion. That probably won’t stop him from trying to convince skeptical senators during his confirmation hearings, though.
With a razor-thin Republican margin in the Senate, Kavanaugh’s confirmation will hinge on locking down support from Suan Collins (R-ME) and her colleague Lisa Murkowski (R-AK), who are both pro-choice. As they’ve done in the past, these senators will scrutinize Kavanaugh’s record, paying particular attention to one code-word: precedent. “I view Roe v. Wade as being settled law,” Collins told reporters shortly after Kennedy’s retirement. “It’s clearly precedent and I always look for judges who respect precedent.” (Approached for comment, Collins’ press secretary forwarded Rolling Stone the senator’s boilerplate statement on Kavanaugh’s nomination; it declares the judge has “impressive credentials and extensive experience,” but promises Collins will nonetheless “conduct a careful, thorough vetting” of his record.)
During last year’s confirmation hearings, Trump’s other Supreme Court pick, Justice Neil Gorsuch, repeatedly and ardently declared his deep respect for legal precedence. “I’m sworn as a sitting judge to give the full weight and respect to due precedent;” “I follow precedent;” “I will follow the law of judicial precedent in this and in every other area, senator, it’s my promise to you;” Gorsuch said at that time.
Gorsuch’s personal assurances about precedent were crucial to securing Collins’ vote. “I had a very long discussion with Justice Gorsuch in my office,” Collins recently told CNN’s Jake Tapper. “And he pointed out to me that he is a co-author of a whole book on precedent.”
Among Gorsuch’s co-authors in that same book? Brett Kavanaugh.
But, as Brianne Gorod, former clerk to Justice Stephen Breyer, has pointed out, all those promises weren’t worth much. In his first year on the court, Gorsuch voted to overrule past Supreme Court decisions in Janus v. AFSCME, Abbott v. Perez and South Dakota v. Wayfair – a decision in which he expressed a willingness to overturn even more precedents in the future.
Taking Kavanaugh at his word that he respects precedent would be a similarly grave error, because the judge has an unusual and radical interpretation of what abortion precedent actually is, as evidenced by his dissent in Garza v. Hargan in which he employed the word “precedent” 19 times in just 10 pages.
In his dissent, Kavanaugh tried to make the case that the Supreme Court has typically taken a conservative perspective on abortion, citing “many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He failed to point out that the Supreme Court has consistently ruled that any restriction constituting “a unilateral veto” – like the government unilaterally deciding that a teenage girl cannot have an abortion after she met the state’s legal requirements – is unconstitutional.
He went on to contrast his view with the majority’s “radical” interpretation of the law, which he said would only have been supported by history’s most extreme justices. He called three of them out by name – William J. Brennan, Thurgood Marshall and Harry Blackmun – casting those justices as extremists whose abortion views were far outside the mainstream and decidedly “not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.”
He returned to those three justices later in his dissent, in a passage that should be extremely concerning for anyone holding out hope that if confirmed, Kavanaugh would leave Roe untouched. “From one perspective, some disagree with cases that allow the Government to refuse to fund abortions and that allow the Government to impose regulations such as parental consent, informed consent, and waiting periods,” Kavanaugh wrote. “That was certainly the position of Justices Brennan, Marshall, and Blackmun. From the other perspective, some disagree with cases holding that the U.S. Constitution provides a right to an abortion.”
Kavanaugh presented this as a binary choice. If there is room for more than two opinions on the matter of abortion, Kavanaugh did not account for it. The fact that he already cast Brennan, Marshall and Blackmun as the radical fringe effectively places Kavanaugh squarely in the other camp – the camp that disagrees that the Constitution provides a right to an abortion.
The opinion that Roe should be overturned is a radical one, and it should be treated as such. It’s not only a departure from 45 years of Supreme Court precedent, it’s also wildly outside the mainstream public opinion: 67 percent of Americans do not want to see Roe overturned, according to a recent poll taken by the Kaiser Family Foundation.
Judges with Supreme Court dreams usually take great pains to keep their true feelings about issues like abortion private out of fear that these statements could come back to haunt them in confirmation hearings. It’s probably not a coincidence that Kavanaugh became more bold in airing his views after Trump – who promised to appoint justices that would overturn Roe v. Wade – was elected.
In a speech he gave last year, Kavanaugh praised the late Chief Justice William Rehnquist – one of the two dissenting justices to vote against Roe – as his “first judicial hero.” Kavanaugh bemoaned the fact that Rehnquist was “not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey… But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” Here, with his choice of words – “freewheeling judicial creation of unenumerated rights” – Kavanaugh again indicated his belief that abortion is not a constitutional right guaranteed by the 14th amendment. After his speech, an audience member, while posing a question, said Kavanaugh agreed with Rehnquist’s Roe dissent. Kavanaugh did not correct him, and in answering, affirmed his belief that Rehnquist was right.
Back in 2006, when Kavanaugh was nominated for his current position, Sen. Chuck Schumer (D-NY) asked him point blank: “Do you consider Roe v. Wade to be an abomination?” The judge, a Catholic, didn’t answer the question directly. He replied, “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.”
That’s true. But it’s important to keep in mind that, unlike lower court judges who only get to interpret precedent, Supreme Court justices get to decide what qualifies and what doesn’t. As Sen. Chuck Grassley (R-IA) put it when explaining why he wouldn’t vote to confirm Justice Sonia Sotomayor to the Supreme Court in 2009, even though he supported her nomination to a lower court: “Supreme Court Justices have the last say with respect to the law and have the ability to make precedent, they do not have the same kinds of restraints lower court judges have. So we need to be convinced these nominees have judicial restraint – in other words, the self-restraint to resist interpreting the Constitution to satisfy their personal beliefs and preferences.”
Collins and Murkowski, both of whom previously voted to confirm Kavanaugh to the D.C. Circuit, would do well to keep that in mind during his Supreme Court confirmation hearings.