Jurisprudence

How Brett Kavanaugh Will Gut Roe v. Wade

Donald Trump’s Supreme Court nominee has shown us precisely how he’ll do it.

Brett Kavanaugh looks on as Donald Trump announces him as his nominee to the Supreme Court.
Brett Kavanaugh looks on as Donald Trump announces him as his nominee to the Supreme Court in the East Room of the White House on July 9, 2018 in Washington, D,C.
Saul Loeb/AFP/Getty Images

President Donald Trump nominated Brett Kavanaugh to the United States Supreme Court on Monday night, ending feverish speculation over who would replace retiring Justice Anthony Kennedy and become the fifth vote to undo the bulk of Kennedy’s liberal legacy.

Kavanaugh is an obvious choice for Trump. A judge on the U.S. Court of Appeals for the District of Columbia Circuit, he has maintained staunchly conservative credentials without earning a reputation for being a bomb-thrower. Unless Republican Sen. Susan Collins grows a spine, which she won’t, he has a clear path to Senate confirmation. During his hearings, Kavanaugh will claim he cannot reveal his true feelings about Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to abortion access. But there is little doubt that Kavanaugh will gut Roe at the first opportunity. Indeed, he has already provided a road map that shows precisely how he’ll do it.

Kavanaugh was forced to confront the abortion question in 2017 after the Trump administration barred an undocumented minor, known as Jane Doe, from terminating an unwanted pregnancy. The American Civil Liberties Union sued on Doe’s behalf, and the dispute came before a three-judge panel at the D.C. Circuit. Kavanaugh was joined on the panel by Judge Karen L. Henderson, an arch-conservative, and Judge Patricia Millett, a moderate liberal. Doe, who was being held in a federally funded Texas shelter, had already obtained the necessary judicial bypass to get an abortion. But the Trump administration refused to let her see an abortion provider, instead sending her to an anti-abortion “crisis pregnancy center.”

The ACLU argued that the Trump administration was violating Doe’s constitutional rights. Under current Supreme Court precedent, the government may not place an “undue burden” on a woman’s access to abortion. And by preventing Doe from seeing an abortion provider, the ACLU asserted, the government had created such an undue burden. The Trump administration, by contrast, alleged that it had not substantially burdened Doe’s right to an abortion, because if she really wanted one she could just return to her home country. (In fact, abortion is outlawed in Doe’s country of origin.) The government also asserted that Doe had the option of finding a sponsor in the U.S. who would be willing to house her and permit her to terminate her pregnancy.

Hours after hearing the case, the court issued a two-page order that reflected the views of Kavanaugh alone. Millett would’ve ruled that Doe could receive an abortion immediately; Henderson would’ve held that, because she entered the U.S. illegally, Doe has no constitutional rights at all. Kavanaugh, by contrast, struck what he clearly thought to be a middle ground. First, he noted that all parties agreed that Roe v. Wade applies to undocumented minors. Second, he gave the government nearly two weeks to find a sponsor for Doe, removing her from federal custody and transferring responsibility to somebody else. If no sponsor could be found, then the parties could return to court and argue the case all over again, with no assurance that Doe could get her abortion.

By that point, Doe would be about 18 weeks pregnant. Texas bans abortion after 20 weeks, and the procedure becomes more dangerous as the pregnancy advances. Moreover, the process of finding and verifying a sponsor for an undocumented minor frequently takes weeks or months. And Doe’s lawyers had already searched for a possible sponsor, to no avail. Kavanaugh’s ostensible compromise, then, was nothing of the sort. At best, it would force Doe to suffer through her unwanted pregnancy for at least two more weeks, increasing the odds of complications when she was finally able to obtain an abortion. At worst, it meant the government could run down the clock to the point that an abortion would become illegal.

Luckily for Doe, the full D.C. Circuit swiftly reversed Kavanaugh’s decision and allowed her to terminate her pregnancy, which she did. This move prompted Kavanaugh to write a bitter dissent explaining why the government’s bar on Doe’s abortion was not, in fact, an undue burden.

Kavanaugh began by accepting the Trump administration’s Orwellian argument that, by allowing Doe to visit an abortion provider, the government itself was “facilitating” her abortion. He then explained, with maximum condescension, why the Trump administration had a good reason for wanting to place Doe with a sponsor instead of allowing her to terminate her pregnancy:

The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor—ordinarily a family member, relative, or friend—before she makes that decision? And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion.

Kavanaugh believed that Doe was not mature enough to decide on her own that she wanted an abortion. Rather, she needed the sage counsel of a family member to help her make “a major life decision”—even though she was already so determined to make that decision that she sued the government so she could follow through with it.

In an irate conclusion, Kavanaugh condemned his colleagues for declaring that “unlawful immigrant minors have a right to immediate abortion on demand.” He insisted that the government should be allowed to “help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.” By ruling for Doe, the court had deviated from precedent “holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”

It is laughable to pretend that the Trump administration wished to “help” Doe “navigate” the abortion decision when it simply imposed a flat ban on her ability to terminate her pregnancy. But it is even more absurd to claim that this ban was not an “undue burden” under Supreme Court precedent. The two options the Trump administration presented to Doe—self-deport or find a sponsor in record time—were not real choices. They were window dressing to conceal the obvious fact that the government was prohibiting Doe from exercising her right to choose. Kavanaugh is far too intelligent to believe that the administration had actually complied with Roe and other pro-choice precedent. Yet he played along with the government’s ruse, asserting that the administration was helping Doe “navigate” her decision.

And that is how the Supreme Court will, in all probability, kill off Roe. A conservative state will pass a draconian anti-abortion restriction—one that shutters all abortion clinics, perhaps, or outlaws abortion after a fetal “heartbeat” is detected. With Kavanaugh providing the decisive fifth vote, the court will rule that the state law does not pose an “undue burden” to abortion access; after all, the government has an interest in “favoring fetal life,” and women who truly want an abortion can go to another state. The majority may not admit what it is doing. But in practice, it will be overturning Roe.

Kavanaugh is the ideal candidate to cast that fifth vote and even write the opinion. He has already proved that he can pretend to adhere to Roe while hollowing out its core holding. He has revealed a striking aptitude for intellectual dishonesty, pretending to follow precedent while enshrining anti-abortion dogma into law. His disingenuousness will be an asset on the Supreme Court. And within a few years, the United States will be a country of Jane Does.