President Donald Trump might not have asked potential Supreme Court nominees about their stance on Roe v. Wade, but the president’s pick—Brett Kavanaugh—has an anti-choice record that speaks for itself.
Kavanaugh, a federal judge for the D.C. Circuit US Court of Appeals, most recently revealed his views on abortion rights in October, when he ruled against a 17-year-old immigrant in federal custody who wanted to terminate a pregnancy. Kavanaugh had been in the minority: The D.C. Circuit voted 6-3 in favor of the teen, and ordered the government to transport her to a nearby Texas abortion provider “promptly and without delay.”
Kavanaugh bristled at the decision in his dissent, asserting his belief that the government has a responsibility to protect life—a fetus’s life.
“The government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” Kavanaugh wrote at the time. His colleagues in the majority, he continued, seemed to believe “unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.”
Kavanaugh has earned a reputation in the D.C. Circuit court as a protector of religious liberty, most notably for his ruling on a 2015 case that challenged the Affordable Care Act's contraceptive mandate. In his dissent, Kavanaugh argued that requiring employers to pay for health insurance that covers birth control for their employees is to infringe on religious freedoms.
"When the government forces someone to take an action contrary to his or her sincere religious belief (here, submitting the form) or else suffer a financial penalty (which here is huge), the government has substantially burdened the individual’s exercise of religion," Kavanaugh wrote in his opinion. "So it is in this case."
Kavanaugh's bent toward safeguarding religious liberties and "fetal life" over access to safe abortion and contraception hints at how he could rule on other cases where women's rights are at stake.
Just as telling too may be pro-life advocates’ reaction to news of Trump’s nomination Monday night. Susan B. Anthony List, a group whose leadership boasts close ties to the Trump White House, lauded the president’s “outstanding choice,” while Texas Right to Life called Kavanaugh’s nomination “the beginning of the end for Roe v. Wade.”
“The government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion."
Their opponents aren’t taking these threats lightly. Immediately following Trump’s announcement, hundreds of protesters thronged the Supreme Court steps to oppose Kavanaugh’s appointment. Any Trump pick carries with them the danger of tipping the scales of the court away from abortion rights: As a candidate, Trump promised to appoint only pro-life justices to the bench who would overturn Roe v. Wade. With Kavanaugh, reproductive rights advocates worry Trump could make good on that promise.
"If confirmed, Kavanaugh could very well be the decisive vote Trump needs in the Supreme Court to give his concerted campaign to undermine civil liberties and civil rights long-term impact," American Civil Liberties Union Legal Director David Cole said in a statement. "And in light of President Trump’s promise to appoint justices who would overturn Roe, this nomination could jeopardize the right to an abortion millions of women and families have relied on for more than four decades."
NARAL Pro-Choice America President Ilyse Hogue, meanwhile, saw Kavanaugh's intent to block a young immigrant woman from getting an abortion as a frightening harbinger of what to expect from the Trump-appointed judge.
“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 healthcare,” Hogue said in a statement Monday night. “He has also been a long time conservative activist working to elect anti-choice politicians. It is clear that he will be a reliable vote to end Roe v. Wade, criminalize abortion, and punish women.”