Before he was nominated, Judge Brett Kavanaugh had jettisoned the established playbook for prominent judges who might be in line for a Supreme Court nomination. The current rule is that a judge with Supreme Court ambitions: 1) avoid saying anything on the record directly about Roe; 2) in public comments, emphasize the general importance of deferring to precedent, without being too specific. (In a pinch, stating tautologically that a precedent of the court is indeed “a precedent of the court” will usually serve.)
But to his credit, Judge Kavanaugh has been remarkably transparent over the course of his judicial career, both in his writings and in his public statements. It is refreshing that a nominee has such a relatively clear record. It is critical that Judge Kavanaugh maintain that course during any upcoming confirmation hearings, avoiding the sort of question dodging that has long plagued federal judiciary hearings.
Ahead of those hearings, senators should be analyzing that record candidly as they prepare their questions. This is particularly true on the question of abortion rights, an area in which Kavanaugh has the potential to dismantle current precedent in a way that would reshape how women experience health care in this country.
While Kavanaugh has not ever publicly said, “I will overturn Roe,” his record transparently sends this message: 1) In September, Kavanaugh spoke approvingly of Justice William Rehnquist’s Roe dissent. Further, Kavanaugh’s opinion this year about a detained noncitizen seeking an abortion actually raises more questions both about his views on Roe and potentially about how he might treat the rights of families detained at the border facing separation; 2) his speech opens up these fair questions about his specific views on Roe and an expectation for candid answers in the nomination hearings before the Senate Judiciary Committee; and 3) some of his major decisions indicate that he is not deferential to precedents even more settled than Roe. While it’s amply clear that abortion can be made unavailable to most women without expressly overturning Roe explicitly, Kavanaugh has now given significant hints of his willingness to do the bolder thing. That is worthy of serious scrutiny in the weeks to come.
First, let’s review what Kavanaugh said in a speech to the American Enterprise Institute in September to set the context. It was during a tribute to the late Chief Justice William Rehnquist, whom Kavanaugh described in fawning terms as his “first judicial hero,” that he said this:
[I]n case after case after case during law school, I noticed something. After I read the assigned reading, I would constantly make notes to myself: agree with Rehnquist majority opinion. Agree with Rehnquist dissent. Agree with Rehnquist analysis. Rehnquist makes a good point here. Rehnquist destroys the majority’s reasoning here.
Kavanaugh then highlighted five specific aspects of Rehnquist’s legacy. The fourth was “the court’s power to recognize unenumerated rights,” which led to a discussion of Roe and abortion rights:
Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion, even where the mother’s life was in jeopardy, would violate the Constitution. But otherwise he stated the states had the power to legislate with regard to this matter. …
[I]t is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, but in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case [his 5–4 majority opinion rejecting a due process right to die] stands to this day as an important precedent, limiting the court’s role in the realm of social policy and helping to ensure that the court operates more as a court of law and less as an institution of social policy.
Does Kavanaugh say explicitly, “I agree with Rehnquist’s Roe dissent”? Not in those precise words, but everyone in the room understood what Kavanaugh was signing on to. He was embracing Rehnquist’s Roe dissent and its doctrinal foundations. In so doing, he is raising doubts about substantive due process and a general constitutional right to privacy.
Further, it’s important to view that speech in the context of his effort, also last fall, to stake out a strong position in Garza v. Hargan, a challenge to the Justice Department’s attempt to bar a pregnant undocumented minor in custodial detention from obtaining an abortion. Despite a state court granting her permission, the Office of Refugee Resettlement, which had custody of the minor—known as Jane Doe—refused to release her from the shelter for the procedure under a March 2017 directive that federally funded shelters could not take “any action that facilitates” abortions without the ORR director’s approval.
A lower federal court ordered that the minor be released from the shelter and allowed to have the abortion. Kavanaugh wrote a concurrence supporting a 2–1 decision by a three-judge panel of the D.C. Circuit to vacate that order. Later, Kavanaugh dissented when the D.C. Circuit—sitting en banc—reinstated the restraining order. Slate’s Mark Joseph Stern has explained how Kavanaugh’s reasoning essentially lays out a road map for eviscerating the “undue burden” standard upon which Casey rests. If holding onto a pregnant teen migrant until it’s too late for her to lawfully terminate her pregnancy isn’t an “undue burden” on abortion, it’s hard to know what is.
But there’s more. In the Garza decision, Kavanaugh again distanced himself from the proposition that Roe and Casey count as proper precedents. In addition to his references to “fetal life” in his concurring opinion in the initial 2–1 ruling, Kavanaugh in his dissenting opinion from the full-panel decision again signaled that he would limit the reach of Casey and Roe. He wrote, “[A]ll parties have assumed … that unlawful immigrant minors such as Jane Doe have a right under Supreme Court precedent to obtain an abortion in the United States.” Just to be clear, the Supreme Court has held that noncitizens are protected by the 14th Amendment, and the 14th Amendment is the basis for Roe. Kavanaugh was emphasizing that Roe was applicable merely because the parties had “assumed” (or stipulated), rather than because of the more fundamental fact that Roe is Supreme Court precedent. Here, Kavanaugh was signaling his openness to cabin Roe’s application, one way or another. (He may be suggesting that a detained noncitizen does not have the same protections under the 14th Amendment that citizens have, as Justice Kennedy suggested in dissent in 2001. Kavanaugh’s hint here also raises urgent questions about his views on the rights of immigrant families at the border arguing against forced separation, which should also be addressed in his confirmation hearings.)
Kavanaugh also favored a broad interpretation of the government’s interest in “refraining from facilitating abortion” in that case. The facilitation in Doe was marginal at most. The Office of Refugee Resettlement had claimed that a pregnant teenager, who had lawfully been granted permission to terminate her pregnancy by a state court, was being “facilitated” in obtaining that procedure merely by the government opening the doors of the shelter in which she was being held. Jane Doe had a sponsor, a ride, and the cost of her procedure was covered. Yet the government was claiming that merely allowing her to go to her appointment consisted of “facilitation.” If releasing a detainee is government complicity, then one has to wonder where Judge Kavanaugh would not find government complicity as a mechanism to limit abortion rights. As Judge Patricia Millett wrote in her dissenting opinion in the initial 2–1 ruling, no actual government facilitation occurred.
Under a similar logic, could the government say that similarly situated women cannot use public transport, or even public highways? Could it say that the government shelter cannot feed or clothe someone in this position on the day of her procedure? The Trump administration’s notion of “government facilitation” of an abortion, as accepted by Kavanaugh, is more a theological proposition than a coherent legal one. As such, the sole stopping point in such a case seems to be the religious conviction of the head of ORR. And Scott Lloyd—the current director of ORR—has admitted in subsequent depositions that he believes any abortion under any circumstances “involves the destruction of a human life.” He has also questioned the veracity of minors in ORR custody who claim to be pregnant as a result of rape. If Kavanaugh offers great deference to government officials like Lloyd about who the ultimate arbiter of “facilitation” should be, there would be no end to what constitutes “facilitation.”
Now that he is on the record, Judge Kavanaugh must address these questions candidly in confirmation hearings. Those questions are not just limited to his willingness to reverse Roe. Based on his own writings, he needs to explain if—as he has previously indicated—he agrees with Justice Rehnquist that Roe was not “rooted in the traditions and conscience of our people” and whether he agrees that the substantive due process and related privacy rights laid out in the reproductive rights cases of the 1960s and 1970s are not sound. He must also explain what the boundaries of government “facilitation” might be, in cases where the government might make a moral, but not a constitutional, decision about protected rights.
Judge Kavanaugh should be credited for his candor in taking his stands against Roe last year. It surely played a role in his nomination. It must also be addressed directly during his confirmation. To inquire along these lines and to demand substantive answers as opposed to vague claims about precedent is not bullying or abuse. Reproductive and contraceptive freedom, and perhaps privacy rights more broadly, turn on his votes. He’s given the nation a lot to work with. He should work with us to understand what he believes.
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