Three days of Senate Judiciary Committee hearings on the nomination of Judge Brett Kavanaugh to replace retired Supreme Court Justice Anthony Kennedy didn’t just confirm that Kavanaugh would fulfill President Donald Trump’s promise to appoint a justice who would overturn Roe v. Wade. They revealed that Kavanaugh has dedicated a significant portion of his legal career to finding a path to do just that.
Even before the confirmation hearings began, it was clear that Kavanaugh poses a very real risk to reproductive rights, no matter how many times he told Sen. Susan Collins (R-ME) he planned to respect court precedent. His public comments praising former Supreme Court Chief Justice William Rehnquist’s dissenting opinion in Roe v. Wade are one great example. As I detailed here, these remarks were a very clear signal to anti-choice advocates that Kavanaugh would be a safe vote against abortion rights—because Rehnquist’s dissent in Roe rejects the constitutional right to privacy altogether.
Then there is Garza v. Hargan, wherein Kavanaugh argued vigorously for the government’s right to “refrain from facilitating” access to an abortion for an undocumented minor in its custody. First, he issued an order in the case that would have effectively pushed the pregnancy at issue too late to obtain an abortion under Texas law. Then, when that order was quickly overturned by his colleagues on the D.C. Circuit Court of Appeals, he issued a dissent in which he accused his colleagues of advancing “abortion on demand,” a refrain commonly shouted by anti-choice activists to describe legal abortion.
Kavanaugh’s own testimony over the course of the past three days has borne this out as well. Kavanaugh frequently talked about Roe as Supreme Court precedent and even “super-precedent,” with Planned Parenthood v. Casey’s affirmation of it.
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That sounds good, right? Not so fast.
Precedent can be “unsettled” by the Supreme Court. Kavanaugh reminded us of that time and time again by invoking Brown v. Board of Education. Brown overruled Plessy v. Ferguson, the decision that had endorsed “separate but equal.” Kavanaugh praised Brown not just for correctly finding school segregation unconstitutional, but as one of the greatest moments in Supreme Court history.
Again, this sounds good, right?
It would be if anti-choice activists didn’t consistently use the Plessy and Brown cases as an analogy for their attempted pathway to overturn Roe. So consider every reference Kavanaugh made to Plessy and Brown a wink to those activists, likely intended to reassure the most radical conservatives that he knows how to get the job of overturning Roe done and is clever enough to disguise it before the broader public.
Republican Sens. Lindsey Graham (SC) and Ben Sasse (NE) helped Kavanaugh in this effort by talking about the litigation process and strategy it takes to overturn Supreme Court precedent. Sasse’s entire line of questioning to Kavanaugh was about undermining Roe, starting with the proposition that the Supreme Court can be wrong and moving on to how advocates spent decades building a record, in courts of law and public opinion, to provide the Court cover to ultimately overturn the Plessy decision. The subtext to these exchanges could not be more clear. Anti-choice forces see an opening with a Kavanaugh confirmation to end Roe—and they used their time with him on Wednesday and Thursday to get reassurances from him on that very point.
And Kavanaugh’s consistent reference to Planned Parenthood v. Casey as creating Roe‘s status as “super-precedent” shouldn’t be read as a sign he’s willing to rule in favor of abortion rights either. Yes, Casey reaffirmed Roe. But it also granted the government broad powers to regulate abortion rights. Casey has done as much to undermine abortion rights as it did to reaffirm them by creating the “undue burden” framework. After all, parental notification provisions, waiting periods, mandated ultrasounds, and forced disclosures are all restrictions on abortion rights federal courts have found to be constitutional under the Casey undue burden framework. Kavanaugh’s consistent reference to Casey suggests he’d uphold restrictions under that framework as well. In that scenario, the Court doesn’t need to overturn Roe. It just needs to uphold enough restrictions on abortion rights to render them legal in name only.
As important as Kavanaugh mentioning Planned Parenthood v. Casey repeatedly is the fact that he failed to mention Whole Woman’s Health v. Hellerstedt at all. Whole Woman’s Health is the 2016 decision that struck as unconstitutional a series of Texas abortion regulations that were deemed an undue burden on abortion rights. In that case, the Supreme Court majority held that when it comes to evaluating undue burdens, courts must weigh the extent to which the restrictions in question actually serve the government’s stated interest in enacting them against the burden they impose. The decision is an important win for abortion rights—not in the least because it forces lawmakers to be able to support their rationale for restricting abortion rights with actual evidence.
By Thursday evening, Judge Kavanaugh had yet to discuss his views on Whole Woman’s Health. When Sen. Kamala Harris (D-CA) asked him if he thought the case was correctly decided, Kavanaugh wouldn’t answer the question.
He also called birth control an abortifacient when responding to a question from Sen. Ted Cruz (R-TX) about litigation challenging the birth control benefit in the Affordable Care Act, echoing another anti-choice talking point that dangerously conflates contraception with abortion.
Then there are Kavanaugh’s documents. The secrecy and lack of transparency around the record of his time in the Bush White House is unprecedented. The process for disclosing documents has been largely controlled by Bill Burck, who marked hundreds of thousands of pages of documents confidential. Democrats objected and finally leaked some of the documents Burck didn’t want the U.S. public to see. Among them were an email where Kavanaugh says that many legal scholars do not see Roe v. Wade as settled law and documents related to Kavanaugh’s shepherding radical Bush judicial nominees like William Pryor through the confirmation process. These nominees themselves have pledged to do all they can to overturn Roe.
So where does this leave us? Kavanaugh’s confirmation hearings are not quite over, and both the Judiciary Committee and the full Senate need to vote on his nomination. But absent some Republicans joining Democratic senators in opposition to Kavanaugh, his confirmation is all but guaranteed. That’s when the clock officially begins to tick on the challenge to Roe.