See other coverage by Rewire on Elena Kagan’s nomination to the Supreme Court, including analysis of her work on choice issues in the Clinton White House, analysis of her record by the anti-choice community, and a “progressive’s defense” of Kagan’s nomination.

Opening Day of Supreme Court Nomination Hearing season began with statements by nominee Elena Kagan bookending the prepared remarks of Senators from both parties, who, ironically as some have noted, seem to be speaking more to caricatures of Kagan created for political theater and the purpose of maintaining a “united front” on the respective ideologies of both parties, rather than any serious exploration or understanding of who Kagan is and what she stands for on practical issues now facing the Supreme Court and likely to come up in the next several years.

On the face of it, Kagan is as the Washington Post’s Eva Rodriguez points out, a nominee that, Democrats “should hate and the GOP should love.”

“Imagine the outrage from the left,” writes Rodriguez, “if a Republican president nominated someone to the Supreme Court who argued:”

that the ruling that gave Guantanamo detainees the right to challenge their incarceration in federal court should not apply to those captured in other countries and shuffled off to the Bagram military prison in Afghanistan;

urged the Supreme Court to block a federal trial judge’s order to free into the United States Chinese Muslims who’ve been held unjustly at GITMO for nine years and can’t be returned to their homeland for fear they’d be tortured;

advocated for prosecution of a former administrative law judge who wants to turn a U.S.-designated terrorist group away from violence by advising it on how to use lawful and peaceful means to advance its political agenda.

Instead, Rodriguez points out:

Democrats apparently really, really like her, as evidenced by their effusive praise and absolute lack of criticism or skepticism of conservative positions she’s taken as solicitor general on such matters as indefinite detention and anti-terrorism laws.

And, “Republicans — with the exception of South Carolina’s Lindsey Graham — apparently aren’t aware of these conservative positions or are ignoring them because they don’t fit neatly into their caricature of Kagan.”

Instead, they attempt — unsuccessfully — to paint Kagan as a scary, unqualified, anti-military activist who’s eager to join liberal justices in rewriting the Constitution in their own image and for their own gains.

But while Republican and Democratic Senators and the Administration may be presenting their respective united fronts, the hearings–and questions–began today with an enduring undercurrent of concern from some quarters of the progressive community on civil and reproductive rights issues, many of which may not be answered before a final vote on the Kagan nomination is taken.

In an artlcle published in Sunday’s Washington Post, reporter Amy Goldstein wrote:

On the eve of Elena Kagan’s Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

“Decades after the height of the civil rights movement,” continues Goldstein, “questions involving race and ethnicity persist as a recurrent theme before the Supreme Court, and attitudes on those issues remain a significant prism through which nominees are evaluated by those on the left and the right.”

The National Bar Association, the main organization of black lawyers, gave Kagan a “lukewarm” rating and has not endorsed her, and others, such as the Mexican American Legal Defense and Educational Fund, have raised concerns about the “fragmentary evidence” of her beliefs on core issues. “Others,” notes Goldstein, “have parsed Kagan’s public statements and actions and said they are uneasy.”

Concerns about Kagan’s judicial philosophies on key issues, especially at this moment in time of the Court’s evolution, also have been raised by reproductive rights groups.

After reviewing relevant publicly available documents by Kagan, for example, the Center for Reproductive Rights raised questions about her positions on a woman’s right to choose whether and when to become a mother, and called on the Senate to inquire more deeply into her current views on constitutional protections for abortion throughout the confirmation process.

The CRR analysis notes:

Kagan’s record documents her agreement with the general proposition that the Constitution affords a right to abortion. Her positions on the specific contours of that substantive right are less discernable. Indeed, some of her writings raise questions about the depth of her consideration of the significance of reproductive rights to women’s health, lives, and equality. That said, only speculative conclusions can be drawn from the record given the limited, and at times political, purposes for which the memos at issue were written, and the length of time since she authored them.

Among the conclusions drawn by CRR’s review of Kagan’s documents are:

Kagan’s record suggests she would have struck down the Title X gag rule. 

Title X, established in 1970, provides public funding for reproductive and other preventive health services, including contraception, treatment of STIs, screening for breast and cervical cancer, pregnancy tests and counseling, and educational programs.

In 1988, the Secretary of Health and Human Services imposed a “gag rule” prohibiting Title X physicians and counselors from discussing abortion as an option with their patients — even if asked about it directly–but simultaneously compelled a Title X provider to refer all pregnant patients to prenatal care or social services providers who “promote the welfare of . . . [the] unborn child.”

The gag rule was challenged in Rust v. Sullivan, but the Supreme Court, by a 5-4 vote, rejected the argument that the regulations discriminated on the basis of viewpoint (i.e., penalizing only particular opinions on a certain subject), and were therefore unconstitutional under the First Amendment. Instead, the Court held that the government can choose which activities to subsidize, and that by enacting the gag rule, “the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.”

Kagan, writing in a 1992 law review article, reasoned that the Title X regulations “at issue in Rust can hardly be understood except as stemming from government hostility toward some ideas (and their consequences) and government approval of others . . . . [and that] the regulations, in treating differently opposing points of view on a single public debate, benefited some ideas at the direct expense of others and thereby tilted the debate to one side.”

In other words, CRR notes:

Kagan agreed with the petitioner’s argument in Rust that the gag rule — which censored one view and commanded another — constituted invidious viewpoint discrimination. Had the Court applied Kagan’s framework to Rust, the case would have struck down the harmful and discriminatory restrictions as violations of freedom of speech.

Kagan appeared to dismiss the rights of incarcerated women to safe abortion services. In a memo written for Justice Thurgood Marshall, Kagan expressed skepticism about whether the Eighth Amendment protects the serious medical needs of incarcerated women seeking abortions.she expressed skepticism about whether incarcerated women seeking abortions had “serious medical needs” under the Eighth Amendment. calling the notion that they should receive government assistance to address those needs “ludicrous.” “Kagan’s dismissal of the principle enunciated by [a] lower court — that “serious medical needs” include “non-medically necessary” abortions for incarcerated women — is troubling,” states the CRR analysis.

Some of Kagan’s policy recommendations to President Clinton on the so-called partial-birth abortion ban would have had “harsh consequences for women seeking abortions, and were unconstitutional under then prevailing law.”

“While serving in the White House, first in the Counsel’s office and later on the Domestic Policy Council, Kagan advised President Clinton to support including a too-narrow health exception in federal legislation banning so-called “partial birth abortion,”” states the CRR brief. While Kagan recognized the constitutional importance of protecting women’s health in the context of any restrictions on abortion, and advocated within the Administration accordingly, it is “difficult to draw a firm conclusion about Kagan’s own legal views regarding how robust a health exception must be from documents that reflect political calculations and input from multiple people.”

In response to questions raised during the Solicitor General confirmation hearings on abortion and the right to choose whether and when to carry a pregnancy to term, Kagan “accurately stated current law, expressed deference to stare decisis in her role as Solicitor General, and declined to give her opinion on most of the hypotheticals with which she was presented,” notes CRR. For example, during the SG hearings, Kagan was questioned about her views on whether informed consent and parental involvement laws violate the Constitution but provided a general statement about the state of the law, rather than an opinion on the law.

“It is difficult to draw many conclusions about how Kagan would approach her role as Supreme Court justice from her written testimony on these topics during her confirmation as Solicitor General,” states CRR.

“Whereas the Solicitor General is charged with defending federal statues with

any reasonable argument, the Supreme Court, in its role in “say[ing] what the law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803), must adjudicate among competing arguments in difficult cases, often without a clear guide in previous law.

Although Supreme Court Justices should also give deference to stare decisis, as the highest court in the land, the Justices also inevitably create new precedent, which involves a complex process in which legal analysis is combined with reasoned judgment about a decision’s application to a new set of facts. In such a role, Kagan’s views and experiences would be a far more essential component of her approach to jurisprudence. For this reason, it is imperative that Senate fully engage its “advice and consent” role and provide opportunities for a full hearing of her views.

The best way to unpack these issues, notes CRR, “and the relationship that they bear to Kagan’s current views on the necessary protections for women’s health, is to explore this issue during her confirmation process.”

Accordingly, concludes CRR, “it is critical that the Senate inquire into her current views on constitutional protections for abortion rights more deeply through the confirmation process.”

As of mid-day Tuesday, however, very little unpacking of Kagan’s positions on these issues has been accomplished or even attempted. The one exception has been a relatively cursory questioning of Kagan by Senator Dianne Feinstein on the issue of the “life and health” of the mother.

Feinstin: Okay. Let’s go to the 1973 case of Roe v. Wade. The 1992 case of Planned Parenthood v. Casey. The 2000 case of Sternberg v Carhart. In those cases, the Supreme Court clearly state and I quote “subject to viability the state in promoting its interest in the potentiality of human life may, if it chooses, regulate and even prescribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother.”

That’s 30 years of case law. But in the 2007 case of Carhart v Gonzalez, the Court issued a 5-4 decision upholding a statute that did not contain an exception to protect the health of the mother for the first time since Roe was passed in 1973. So let me ask you clearly, in a memo that you wrote in 1997, you advised President Clinton to support two amendments to a late-stage abortion bill to ensure that the health of the mother would be tected. Here’s the question. Do you believe the constitution requires that the health of the mother be protected in any statute restricting access to abortion?

Kagan responded:

Senator Feinstein, I do think that the continuing holding of Roe. and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation. Now, the Gonzalez case said that with respect to a particular procedure, that the statute Congress passed, which passed a statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved.

Sen. Feinstein: Because of the procedure?

Kagan: Because of the procedure. But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman’s life and that the woman’s health must be protected in any abortion regulation.

“That procedure” of course being “partial-birth” abortion, the non-existent, non-medical procedure made up by anti-choice forces to undermine access to the actually medically-indicated late abortions conducted for the very purpose of saving the lives and health of women. Kind of doesn’t tell you much given this was a purely political move by Kagan who has otherwise so far demurred throughout the entire proceedings to discuss any “political” issue other than her reference here.

This may be a start. But it is not an ending.

We as yet know very little about what Elena Kagan actually understands about the critical nature of access to safe abortion services to women’s lives, health, autonomy, bodily integrity, or most basic rights to freedom, and how deeply endangered that right is.

And it remains to be seen whether further questions will be raised or whether there will in fact be any light shed on this most fundamental–and most contested–right.

The undocumented community received a devastating blow when the Supreme Court deadlocked on United States v. Texas, the lawsuit challenging President Barack Obama’s 2014 executive action on immigration. The Court’s decision leaves 3.6 million undocumented parents without the ability to work legally in the United States and with no relief from deportation.

Immigrant rights organizations say forcing such a large segment of the undocumented population to live in fear is “unacceptable,” and they are calling for a moratorium on deportations.

“Honestly, we were waiting on the Supreme Court to give us something, anything in the form of relief, and it didn’t happen,” said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws. “This is why we’re calling for the moratorium. It feels like this is the minimum we can ask for. People would be much happier with rights and citizenship and being able to do things like legally work in this country, but that’s not on the table right now. Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations.”

Stopping deportations, which have separated thousands of families, is within President Obama’s power, advocates say. As Unzueta wrote recently at the #Not1More site, the Supreme Court’s inaction in United States v. Texas “did not result in a challenge to the federal government’s jurisdiction over immigration enforcement issues or the President’s executive power to expand, reduce, or shut down the immigration enforcement programs that it has invested in.” And as Peter L. Markowitz, a professor at the Benjamin N. Cardozo School of Law, wrote in the New York Times, the president does have the “pardon power,” which includes “the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest.” Unlike deferred action, amnesty would not provide work permits, but there would be no complicated application process and it would be a form of immediate relief for millions of undocumented immigrants. However, given the president’s immigration track record, it’s unclear if President Obama is even considering amnesty.

Deportations: An Urgent Crisis

The president’s executive action would have expanded the Deferred Action for Childhood Arrivals (DACA) program, enabling eligible undocumented immigrants to receive three-year work permits, and created Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have provided a renewable work permit and exemption from deportation for two years to undocumented parents with children who are U.S. citizens or legal permanent residents and also meet certain requirements.

After the Supreme Court announced its split decision, President Obama essentially washed his hands of the undocumented community for the remainder of his presidency, while also leaving behind a “deportation machine” for the next president of the United States, Unzueta told Rewire.

In remarks after the Supreme Court ruling, President Obama said that in November when the next president is elected, he believes the country will get an immigration policy that reflects “the goodness of the American people” and that he has “pushed to the limits” of his executive authority. “We now have to have Congress act,” the president said, while also assuring Americans that the enforcement policies enacted by his administration will remain in place.

The president is referring to policies like the Priority Enforcement Program (PEP), announced November 20, 2014, the same day he announced the expansion of deferred action. PEP replaced Security Communities, an immigration enforcement and deportation program, though advocates argue that PEP is simply a continuation of Secure Communities. Both programs include local law enforcement working with ICE to detain undocumented immigrants.

“Since that announcement of both DAPA and PEP, there are members of our community who have experienced no relief. Now, because of the [Supreme Court] ruling, all that’s come is an increase in the ability to deport people. To me, that proves that you can’t put all of your eggs in one basket, and Obama can’t rely on trying to expand deferred action as the only response to immigrant communities. There’s so much more that he can do,” Unzueta told Rewire.

In a post for #Not1More, the policy and legal director outlined all of the avenues President Obama could take in light of the Supreme Court ruling, including stopping the home raids that have been taking place since January, reviewing his enforcement priorities such as targeting those who recently arrived in the United States, and ending “all programs that entangle local law enforcement and immigration enforcement.” Unzueta also wrote that the president could stop defending “the erosion of the few rights that immigrants have in detention centers,” referring to Jennings v. Rodriguez, a case the Supreme Court announced it would take four days before it issued its decision on DAPA. In Jennings, the Court will debate how long undocumented immigrants detained for immigration violations can be held in detention. “The case had already been decided in the 9th Circuit Court, indicating that immigrants had a right to a regular review of their case via a bond hearing,” Unzueta wrote. “The Obama administration is pushing against this decision asking the Supreme Court to overturn it, arguing effectively for fewer rights for immigrants who are detained.”

The most pressing concern, however, is deportations, which is why #Not1More and other groups, including ICE Out of Austin and the Connecticut Immigrant Rights Alliance (CIRA), are calling for a moratorium on them.

On June 27, the Georgia Latino Alliance for Human Rights blocked the ICE Atlanta field office and undocumented members of CIRA blocked traffic at the Hartford, Connecticut, immigration office demanding a moratorium on deportations. According to CIRA member Stefan Keller, the Hartford action resulted in the arrest of nine protesters, some of whom were undocumented. But because Hartford is a sanctuary city, which is a region that does not work with ICE for the detainment and deportation of undocumented community members, undocumented protesters were not at risk of deportation.

Alejandro Caceres, an organizer with ICE Out of Austin, a campaign to end Austin law enforcement’s partnership with the federal immigration agency, told Rewire the Supreme Court ruling has left many in Austin’s undocumented community feeling sad and frustrated, but that he’s now more committed than ever to focus his efforts locally.

“I think our organizing mentality is that we can’t do anything about the Supreme Court, but we do have the power to work to end deportations here locally,” Caceres said. “Our campaign has a four-resolution plan, and it ends with a city ID.” Community ID programs for undocumented immigrants have been adopted in various cities nationwide, including some in North Carolina, where this initiative is currently under attack. Under these programs, the city issues identification cards, which can make undocumented communities safer.

“That’s something we’re very recommitted to in the light of the Supreme Court ruling. It’s not a solution to the larger problem, but it’s a solution we can focus our energy on. It’s not citizenship. It’s not work authorization. But it’s something, and it’s one more barrier to stop folks from being deported.”

Like Unzueta, Caceres believes there is more Obama can do before he leaves office; there is more he must do, the organizer said, because without DAPA or the DACA expansion, millions of people are at risk of deportation. This is why ICE Out of Austin signed on to call for a moratorium on deportations.

“Saying, ‘DAPA didn’t pass, there’s nothing I can do,’ just isn’t true, and it’s not holding yourself accountable to the immigrant community. We know he [President Obama] can do more, and that’s why we want to put a stop to the deportations. Those who have been calling for comprehensive immigration reform understand people are being needlessly deported, and if they understand that, they have to agree that we must put a stop to deportations as soon as possible. If folks continue to be deported, that is the most urgent crisis we have and that is the issue we will continue to fight,” Caceres said.

Demanding a stop to deportations is a way to push President Obama to do more, according to advocates. Every immigration win that has come from the Obama administration began with pressure from undocumented organizers and activists, Keller said, and the call for a moratorium on deportations is no different.

“The president said it’s up to us, it’s up to Congress, it’s out of his hands. But if Congress isn’t going to help create a just immigration system, we need to put a halt on deportations until this broken system is fixed,” Keller told Rewire. “There is no justice in separating families. This is punishing people because no one is capable of reform or carrying out any other plan of action.”

Providing Tangible Support

President Obama is commonly referred to as the “deporter-in-chief” by immigrant rights activists. It is such a commonly used phrase, in fact, that in January when asking Hillary Clinton about her immigration policies, journalist Jorge Rivas asked Clinton if she would be the next deporter-in-chief. According to a Fusion report, President Obama has deported more immigrants than any president in history, more than 2.5 million since 2009. And as the Nation reported, under his administration the budget for immigration enforcement increased by 300 percent.

Chances are, Caceres told Rewire, that these deportations will continue no matter who is president.

“It was Democrats who [deported over 2 million people]; it was Democrats who implemented family detention. If this continues, the immigrant community, the undocumented community, Latinos, all kinds of people will no longer see any political party as viable or trust-worthy. Neither party helps us.”

“That’s why the response to the undocumented community from liberals and Democrats can’t just be, ‘We’re going to go out and vote and elect a Democratic president.’ We can’t rely on one party,” Unzueta added.

#Not1More’s policy and legal director said it’s hard to get behind any politician, presidential candidate or otherwise, who isn’t willing to say that they want to dismantle the deportation machine, stop deportations, and cut back on the policies and programs that target immigrant communities. “Saying you will work toward comprehensive immigration reform is not what we need at this moment. Saying you will work on stopping deportations is what the community needs. That is the immediate concern,” she said.

In March, the Latin Post reported that “the Democratic Party leaders in the Senate and House of Representatives, in addition to 223 additional members of Congress, filed the amicus brief defending DAPA and DACA’s expanded guidelines.” Advocates say those same politicians and lawmakers must provide tangible support to the undocumented community by helping to stop deportations. Whether that’s publicly pressuring the president to stop deportations after the Supreme Court ruling or lending their voice to individual cases of DAPA-qualified undocumented immigrants who are in detention or deportation proceedings, now is the time, Unzueta said.

Caceres and other members of ICE Out of Austin have been pressuring the Austin Police Department and city council for months to adopt a policy not allowing officers to ask about immigration status. Currently, Austin police officers are allowed to inquire about a person’s immigration status—and no one knows that better than Caceres, who was arrested for refusing to discuss his immigration status with an officer. Working to end these types of policies in their own communities is a way to provide the undocumented community with tangible support, the organizer said.

“I think local politicians should really look into their police departments and what policies they have around detaining immigrants,” he said. “If we can’t instate DAPA or stop deportations, we can make it more difficult to deport people. Does your local law enforcement work with ICE? Work to end that. If immigration wants an undocumented person’s information, make sure they have to come with a warrant. Ending the Priority Enforcement Program in your community, that’s tangible support,” Caceres said. “It can make you feel good to write a letter to the Supreme Court saying you’re disappointed in the ruling, but that doesn’t really do anything for us. Tangible support is ending ties with ICE. Letting folks in the community know that if they get arrested, for any reason, they will not be deported.”

In addition, advocates suggest urging local politicians to turn their communities into sanctuary cities. Joining the District of Columbia and 12 states in allowing undocumented immigrants to obtain a driver’s license is also a way for local politicians to provide tangible support, Caceres told Rewire.

Unzueta said she doesn’t know if President Obama will provide a moratorium on deportations and she isn’t sure if politicians who voiced support for DAPA and DACA will step up to the plate to help the undocumented community in this time of need. “Hopeful,” she said, isn’t really in her vocabulary anymore.

“I’ve been doing this a long, long time and I’ve seen so many setbacks. As long as our humanity is debated and we have to fight for basic rights, I don’t get my hopes up because I don’t want to be disappointed. But that doesn’t mean I’m hopeless,” she told Rewire. “I believe in community and I believe in organizing. I believe in the power of an organized community. I choose to invest my hope in that.”

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.