Brett Kavanaugh Just Effectively Declared War on ‘Roe v. Wade’

U.S. Supreme Court Justice Brett Kavanaugh. (Photo: Pool/Getty Images)

By Mark Joseph Stern, Slate
February 7, 2019

On Thursday night, the Supreme Court blocked a stringent Louisiana abortion law by a 5–4 vote, with Chief Justice John Roberts joining the liberals to keep the measure on hold. Roberts’ vote is surprising, but not a total shock: The Louisiana statute is a direct violation of the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, and until the court overturns that decision, the Louisiana law cannot take effect. To Roberts, this precedent matters. To Justice Brett Kavanaugh, it does not. Kavanaugh so disagreed with the majority that he wrote a dissent explaining why the Louisiana law should be allowed to move forward—an opinion that should not be taken as anything less than a declaration of war on Roe v. Wade.

The case, June Medical Services v. Gee, should be an easy one. It is a challenge to a Louisiana law that is nearly identical to the Texas statute invalidated in Whole Woman’s Health. Louisiana, like Texas, compelled its abortion providers to obtain surgical privileges at a hospital within 30 miles of their clinics. These privileges are often difficult if not impossible to obtain—hospitals can, and do, deny them because they oppose abortion. More importantly, they provide absolutely no medical benefit to women, as the Supreme Court ruled in Whole Woman’s Health. Because these measures impose a substantial burden on abortion providers (and their patients) while providing no benefit to women, the court found them to be unconstitutional.

Then, in 2018, Justice Anthony Kennedy, who cast the fifth vote in Whole Woman’s Health, retired. He was replaced by Kavanaugh, who has a history of upholding abortion restrictions while claiming fidelity to Roe. In anticipation of Kavanaugh refusing to apply abortion precedents, the 5th U.S. Circuit Court of Appeals refused to enforce Whole Woman’s Health. Instead, it asserted (falsely) that the Louisiana law does provide some benefit to women (it does not) and that it doesn’t impose a serious burden. (It does: The law would likely shutter two of Louisiana’s three abortion clinics.) Clearly, the conservative 5th Circuit thought it could overturn Whole Woman’s Health on its own, and trust the Supreme Court to play along.

In the lead-up to this week’s decision, Roberts’ vote was an open question. I wrote last week that his “vote on this emergency appeal will reveal how aggressively the chief justice wants to attack abortion access—and whether he’s willing to sacrifice the rule of law to nullify Roe as fast as possible.” On Thursday, we got our answer. While the chief justice dissented from Whole Woman’s Health, he does not seem disposed to let a lower court simply ignore it.

Kavanaugh feels quite differently. In his dissent, he focused on the fact that, according to the 5th Circuit, Louisiana’s abortion providers did not try hard enough to obtain surgical privileges. That should not matter, because Whole Woman’s Health says the requirement that doctors get privileges in order to perform abortions is unconstitutional, as it bestows no benefit onto patients. Kavanaugh, though, disregarded that conclusion and wrote that the doctors should work harder to get these pointless privileges.

The most astounding aspect of Kavanaugh’s dissent is its credulous belief in Louisiana’s ostensible benevolence toward abortion clinics. He noted that, if the law takes effect, “there will be a 45-day regulatory transition” before it is applied. He also says that Louisiana promised not to “move aggressively to enforce the challenged law” during this period. Kavanaugh accepted the state’s pinky promise not to swiftly close the clinics—even though it has spent months fighting for the ability to do precisely that. At the end of 45 days, the justice wrote, if the doctors still can’t obtain the privileges, they can go back to district court and start the fight anew.

This is classic Kavanaugh. On the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh had a penchant for pretending to apply Roewhile finding arbitrary reasons to uphold abortion restrictions. Kavanaugh let the Trump administration prevent an undocumented minor from terminating her pregnancy, on the laughable theory that she could find a sponsor who would remove her from government custody, where she could reassert control over her body. It was a pseudo-moderate procedural solution that had the effect of denying the undocumented minor abortion access altogether. Here, Kavanaugh made the same play, pretending like he’d found a reasonable middle ground that, in reality, serves to rubber-stamp unconstitutional abortion laws.

No one should mistake Kavanaugh’s dissent as a genuine compromise. There will always be a way to uphold an abortion law while insisting that somehow, someday, women might still find a legal way to terminate their pregnancies. This kind of maneuvering is alarming, as it could allow the Supreme Court to chip away at Roe without the public paying much attention. At least for now, Roberts is inclined to adhere to Whole Woman’s Health, perhaps out of a concern for institutional legitimacy.But his junior colleague has made it quite plain that he is gunning for Roe.Don’t believe the lip service Kavanaugh paid to precedent on Thursday. He is ready and willing to let states regulate abortion out of existence.

* This article was automatically syndicated and expanded from Slate.

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