Brett Kavanaugh: The Threat to Roe v. Wade and the Right to Choose an Abortion

(Photo: Diego M. Radzinschi/NLJ)


Justice Anthony Kennedy shocked the world by announcing his retirement from the Supreme Court at the end of June. His retirement gives Donald Trump the unique power to change the makeup of the supreme court for generations. The Republican-controlled Congress is unlikely to reject Trump’s pick, Brett Kavanaugh, but what will this mean for future Supreme Court decisions?

Justice Kennedy was appointed to the Supreme Court in 1987 by Ronald Reagan. The events leading to his nomination were some of the most interesting in the Court’s history, Kennedy was actually Reagan’s third choice after his two, more conservative, first choices for the position failed to be appointed; Robert Bork, who was rejected by the Senate and Douglas Ginsburg who withdrew himself from the nomination after admitting to marijuana use. Despite being less conservative than Reagan’s initial two choices, he was still expected to be a reliable conservative vote but has proved to be far more centrist, opting to weigh individual cases on their merits, making him a crucial swing vote in many key cases.

It was the unique nature of the US Supreme Court that allowed him this deciding power. The Court is comprised of 9 justices, nominated by the President and confirmed by the Senate, and they hold that position “during good behaviour” which means that they remain unless they are impeached, retire, or die.

The long terms of Supreme Court justices mean that they can become an echo-chamber of the views of the President that nominated them, outserving them by years. Ronald Reagan, for instance, was in office for eight years from 1981 to 1989, Justice Kennedy has been in office for over thirty years.

In recent years the Supreme Court has been ideologically split fairly evenly with four justices, elected by Democratic presidents, who tend to vote in a more liberal way; currently Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, voting against  four justices that were nominated by Republicans that tend to vote more conservatively; including Chief Justice John Roberts, Samuel Alito, Clarence Thomas, and most recently, Neil Gorsuch. As the liberals and the conservatives tend to vote in blocs together, Kennedy’s defiantly centrist stance allows him to be the deciding factor in many cases.

This includes landmark liberal cases that have afforded rights to millions of Americans. In 2015 Kennedy delivered the majority opinion legalizing same-sex marriage promising “equal dignity in the eyes of the law”. In this case, the court was split 5-4 with Kennedy as the deciding vote.

He also sided with the liberal justices as well as Chief Justice John Roberts in the 2015 ruling on the Affordable Care Act which allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance in the Obamacare program. Conversely, in the 2012 court decision that upheld Obamacare’s individual mandate he sided with the conservative dissent, truly symptomatic of how his rulings tended to be rooted in the individual case, not ideology.

Perhaps one of Justice Kennedy’s most significant rulings, and most controversial, is when he sided with the liberal justices in upholding Roe v. Wade in 1992. The 1973 case legalised abortion across the US and has since had elements challenged in five cases brought to the Supreme Court. Abortion is the key issue for many Americans and is an incredibly divisive issue in an already divisive time. Kennedy’s departure could lead to an overturning of Roe v. Wade, all hinging on the confirmation and beliefs of Trump’s nominee; Brett Kavanaugh.

Kavanaugh has a history of being staunchly conservative. In the 1990s he worked for Kenneth Starr who led the investigation of Bill Clinton and indeed helped write the Starr Report, the case for Bill Clinton’s impeachment. After that he worked in the George W Bush White House until in 2003 he was nominated to the DC court of appeals. His confirmation, however, took three years after a long fight by Democrats against his nomination due to his intense partisanship.

One of the most concerning things about Kavanaugh is his support of strong executive power which could mean an extension of the powers of the President and potentially even protect Trump from some of the ramifications of the Russia investigation. In an article for the Minnesota Law Review from 2009, Kavanaugh wrote that Congress should pass a law “exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defence counsel.”

It is important here to note the distinction between this, calling upon Congress to change existing law, not for the Supreme Court to interpret it differently, but this could still be very enlightening on how Kavanaugh would rule on cases relating to civil and criminal investigations. The way he would rule on this is very relevant to Trump, who is not only facing the investigation on his campaign’s involvement with Russia during the 2016 election but also a civil suit over the Trump foundation, as well as a defamation suit from Summer Zervos, for alleged sexual assault.

Abortion is perhaps the most important issue that is under threat by Trump’s nomination. When nominating Neil Gorsuch, Trump affirmed that he would choose Supreme Court justices that would overturn Roe v. Wade. Were this to happen, there would undoubtedly be catastrophic consequences for women across America. Only 17 states have laws that protect abortion. If the Supreme Court overturns Roe v. Wade, abortion would immediately be illegal in 33 states because of what is known as a “trigger law”.

Overturning Roe v. Wade would not eliminate abortions in states they were banned – it would eliminate safe abortions, putting the safety and lives of women at risk. Unsafe abortions plague many countries, with an estimated that nearly 25 million unsafe abortions occurring annually. Of this 25 million it is estimated that anywhere from 4.7% to 13.2% of maternal deaths come from a direct result of unsafe abortion practices, which disproportionately affect developing countries that lack any means of safe abortion practices.

Kavanaugh rarely ruled on cases that touch on reproductive health care during his decade-plus tenure as a judge for the U.S. Court of Appeals for the District of Columbia Circuit. But two of his key dissents in cases related to reproductive rights indicate he could become a sympathetic ear to legal challenges over abortion access and contraception.

In Autumn 2017, the appeals court voted to allow an undocumented pregnant 17-year-old girl in an immigration detention centre to seek an abortion without delay. Judge Kavanaugh dissented, writing that the appeals court was very much bound to obey Supreme Court rulings that state that the Constitution protects a woman’s right to choose an abortion, those precedents left room for the government to apply “reasonable regulations that do not impose an undue burden.”

How he would rule if he were to become a justice of the Supreme Court, however, remains very much a mystery. During his 2006 confirmation hearings, Sen. Chuck Schumer, now the Senate Democratic leader, pressed Kavanaugh on his personal opinion on Roe, but he declined to answer, saying, “I don’t think it would be appropriate for me to give a personal view on that case.” But given Trump’s insistence that he would nominate a strictly pro-life justice, it seems likely that he would replace Kennedy’s vote to uphold, with a vote to overturn.

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