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Will Trump's Supreme Court pick overturn Roe v. Wade?

Two of Brett Kavanaugh's key dissents indicate he could become a sympathetic ear to legal challenges over abortion access and contraception.

by Carter Sherman
Jul 10 2018, 8:01pm

When Donald Trump chose Judge Brett Kavanaugh for a Supreme Court seat Monday night, the president also kicked off a nationwide war over abortion.

During his campaign, Trump pledged to only nominate justices who would overturn Roe v. Wade, a dream that anti-abortion activists have cherished in the four decades since Roe v. Wade first legalized abortion across the United States. A new, conservative majority on the court, solidified by Kavanaugh’s confirmation, could help Trump make good on his promise. And even if the court doesn’t overturn the landmark case, the justices could let other laws stand that limit access to abortion.

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.

“He, like any of the short-listers, would restrict abortion rights. I’m not naive,” wrote Jed Shugerman, a professor at Fordham University School of Law, in a blog post a few days before Kavanaugh’s official nomination. “But if we are going to emerge from the Trump era with the rule of law and a degree of judicial independence, both sides need to change their approach to judicial nominations. Kavanaugh seems to be a judge who is not extreme, but reasonable and mainstream.”

READ: How Kennedy's retirement will push the war over abortion into overdrive

When an undocumented teen held in federal custody wanted an abortion in October 2017, Kavanaugh and two other judges on the D.C. Circuit court ruled to halt a district-court order that would have allowed her to leave a government-operated shelter and get the procedure. Days later, the D.C. Circuit court’s full panel of judges reversed that decision.

But Kavanaugh dissented from their ruling and decried the decision as “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” Instead of allowing the teen to immediately get an abortion, Kavanaugh said, the Trump administration should be given more time to find a sponsor who could take custody of the teen and help her get the procedure.

Abortion rights groups reacted with horror to Kavanaugh’s ruling. NARAL Pro-Choice America President Ilyse Hogue cited the ruling as evidence that Kavanaugh “will be a reliable vote to end Roe v. Wade, criminalize abortion, and punish women” in her statement condemning his nomination Monday.

"He, like any of the short-listers, would restrict abortion rights. I’m not naive."

But the ruling also led some conservatives to question whether Kavanaugh would truly support overturning Roe v. Wade, since Kavanaugh didn’t contest the undocumented teen’s constitutional right to an eventual abortion. He failed to join a more extreme dissent written by one of his colleagues, which that argued the teen’s lack of citizenship meant she had no right to an abortion at all.

READ: Americans really don't want to get rid of Roe v. Wade

In another case that came before Kavanaugh, 11 religious organizations sued the Obama administration over the Affordable Care Act’s mandate that businesses provide contraceptive coverage to their employees. All employers who wanted to opt out of the mandate had to submit a form to their insurers — or face paying a fine. The employers’ insurers would then independently make sure that their employees still had access to contraception coverage. The religious groups argued that submitting the form made them complicit in providing contraception.

The full panel of the D.C. Circuit court ruled against the groups in 2015, but Kavanaugh once again submitted a dissent. While that dissent didn’t totally agree with all of the religious organizations’ arguments, Kavanaugh did believe that the contraception mandate infringed on their religious beliefs.

“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.

Still, Kavanaugh, a devout Catholic, has refrained from revealing his person opinion on abortion and Roe v. Wade. In December 2006, during Kavanaugh’s confirmation hearing for his seat on the D.C. Circuit Court, New York Democratic Sen. Chuck Schumer asked Kavanaugh whether he believed Roe was an “abomination.”

“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully,” Kavanaugh replied. “That would be binding precedent of the Court. It's been decided by the Supreme Court.”

Schumer pressed Kavanaugh to reveal his own beliefs, asking, “What is your opinion? You're not on the bench yet. You've talked about these issues in the past to other people, I'm sure.”

“The Supreme Court has held repeatedly, Senator, and I don't think it would be appropriate for me to give a personal view of that case,” Kavanaugh said.

Both responses leave open the possibility that, as a Supreme Court justice less beholden to precedent, Kavanaugh could choose to rewrite Roe v. Wade or at least curtail its protections. Nicole Huberfeld, a Boston University School of Public Health professor who studies health care and constitutional law, told VICE News that she believes Kavanaugh’s nomination will have a “signalling effect” to states looking to pass abortion restrictions.

“The courthouse doors may be open to challenges that might not have been viable before,” Huberfeld said. “So it invites, I think, more aggressive litigation on the states’ part.”

Kavanaugh could once again evade direct questions about Roe v. Wade in confirmation hearings over his Supreme Court seat — Justice Neil Gorsuch, Trump’s first pick for the Supreme Court, refused to say how he’d rule on a case that challenged Roe v. Wade.

Though Trump told reporters he hasn’t discussed abortion access with Kavanaugh, the president does need Kavanaugh to churn out conservative rulings to appeal to a powerful voting bloc and lobbying interest: the anti-abortion right. Social conservatives had long questioned Trump’s candidacy — and with good reason. Trump entered the White House with malleable views on abortion policy: He publicly identified as “pro-choice” in the 1990s, though he declared himself “pro-life” during his candidacy.

In September 2016, however, Trump fully joined forces with anti-abortion activists. He launched a “Pro-Life Coalition,” led by Marjorie Dannenfelser, head of the anti-abortion group Susan B. Anthony’s List, and officially pledged to nominate “pro-life justices to the U.S. Supreme Court.” In return, the groups have lent him their unwavering support.

Hours after Trump’s nomination, those organizations promised to back Kavanaugh.

“President Trump has made another outstanding choice in nominating Judge Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy, keeping his promise to nominate only originalist judges to the Court,” Dannenfelser said in a statement. “If every self-avowed pro-life senator votes the right way, Judge Kavanaugh will be confirmed easily.”

Cover image: Judge Brett Kavanaugh, President Donald Trump's Supreme Court nominee stands in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Alex Brandon)

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