Jurisprudence

Hello, Justice Kavanaugh. Farewell, Roe.

Democrats had a shot at stopping Kavanaugh and saving the constitutional right to abortion access. They blew it.

Judge Brett Kavanaugh smiling.
Photo illustration by Slate. Photos by Zach Gibson/Getty Images and Chip Somodevilla/Getty Images.

In a few weeks, the Senate will likely confirm Judge Brett Kavanaugh to the U.S. Supreme Court, where he will serve a lifetime appointment. A few years after he joins the bench—or as early as next June—Kavanaugh will cast the decisive vote in a 5–4 decision that will eviscerate Roe v. Wade. Within hours, days, and weeks of that ruling, a slew of states will outlaw or severely limit abortion; others will resume enforcing abortion bans that remain on the books. None of this is hypothetical or seriously debatable. The American conservative movement has spent decades waiting for this exact moment. Now that it has arrived, they are determined not to miss their opportunity—and by all indications, they will not. Republicans are on the brink of achieving their long sought-after goal of abolishing the constitutional right to abortion access.

It is not surprising that conservatives have perfectly executed their well-laid plan to reverse Roe. What is remarkable, however, is how little resistance they have faced from progressives. While a majority of Democratic senators have already voiced their hostility to Kavanaugh, their base has utterly failed to mount a vigorous, sustained opposition to his nomination. If, today, liberals could channel a fraction of the outrage they will feel after Kavanaugh overturns Roe, they would have a shot at keeping him off the court. Instead, their relative apathy toward his impending confirmation has likely doomed reproductive rights for at least a generation.

Kavanaugh has not been particularly subtle about his distaste for Roe and its successor, Planned Parenthood v. Casey. In his current job on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh attempted to manipulate these precedents in order to prevent an undocumented immigrant minor from terminating her pregnancy. Under Casey, the government cannot impose an “undue burden” on a woman seeking an abortion before viability. Yet the Trump administration had imposed a flat ban on abortion for undocumented minors in federally funded shelters. (It maintained that minors who wished to terminate their pregnancies should either find a sponsor in the U.S.—a near impossible task for many without family here—or leave the country.) Kavanaugh held that this position did not constitute an undue burden, in a ruling which would have forced “Jane Doe,” a 17-year-old who was already 15 weeks pregnant, to continue her unwanted pregnancy.

The full D.C. Circuit swiftly overturned Kavanaugh’s ruling and granted Doe access to abortion. In response, Kavanaugh penned a furious dissent that brimmed over with anti-abortion rhetoric. The majority, he sneered, had granted Doe “abortion on demand”—a phrase that, as Irin Carmon notes, is deployed by the right to “denote women capriciously making decisions for themselves.” He claimed that Doe was not mature enough to make this “major life decision” on her own, even though she had already received the necessary judicial bypass from a state court. And he asserted, incredibly, that the Trump administration was being unlawfully forced to “facilitate” Doe’s abortion by merely stepping aside and letting her obtain it. (This argument is fundamentally theological, not legal.)

Kavanaugh’s dissent lays out a road map for the reversal of Roe and Casey. If the Trump administration’s outright ban on abortion for immigrant minors does not constitute an “undue burden,” then nothing does. And Kavanaugh knows it. The judge seized upon the case to signal his discontent with Casey and offer a glimpse into how he’d go about reversing the decision. Once he is on the Supreme Court, he can chip away at precedent by upholding a variety of abortion restrictions, insisting that they are not an “undue burden.” And once the court has eroded Casey to the point of nullity, it can finally overturn it outright.

On its own, Kavanaugh’s approach to the Jane Doe case is enough to prove his anti-abortion, anti-Roe bona fides. But if that doesn’t convince you, consider his 2017 address to the American Enterprise Institute—the speech that seems to have bumped him to the top of Donald Trump’s Supreme Court shortlist. During his address, Kavanaugh took gratuitous swipes at Roe, praising then-Justice William Rehnquist’s dissent and disparaging the doctrinal foundation of Roe’s constitutional holding. His lavish praise for Rehnquist’s anti-abortion dissent sent a clear message to Trump and his advisers: Put me on the Supreme Court, and you can trust me to overturn Roe when the time comes.

All of this is on the public record. And yet the Democratic base has not treated Kavanaugh’s confirmation like the emergency that it is. There is none of the urgency that surrounded Congress’ botched repeal of the Affordable Care Act. There is little of the rage that greeted controversial Trump nominees like Betsy DeVos. Sens. Susan Collins and Lisa Murkowski, the only Republican senators who stand a chance of opposing Kavanaugh, have said that they do not feel significant pressure from their constituents to vote against him. There is “a different level of intensity,” Murkowski explained in July. The confirmation vote is simply too abstract, too impersonal to ignite the passions of last summer. There is no sit-in movement, no mass outpouring of fear and frustration. Activists seem to have devoted relatively little time and money to shoring up red-state Democrats’ opposition to Kavanaugh. And it seems that they’ve barely bothered to appeal to the rest of the Republican caucus.

If the Senate were currently on the brink of passing a bill that would ban abortion in much of the country, progressives would surely be swarming every congressional office—even those of conservative Republicans. Confirming Kavanaugh will have roughly the same effect, yet only a tiny fraction of the country seems especially upset about it. Roe is popular among Democrats and Republicans, and when it goes, Americans will take to the streets en masse. Their anger will snowball once they see the grim reality of abortion bans—the women arrested and imprisoned for exerting control over their bodies. For now, though, they are watching the disaster unfold in slow motion, and few seem moved to even call their senators.

There is little mystery to how all this ends. The modern Republican Party is built upon a conviction that Roe is illegitimate. Kavanaugh is a GOP apparatchik who has vocally endorsed the anti-abortion party line. Once he is in the Supreme Court, he will do precisely what his party asks of him and gut the constitutional right to abortion access. Progressives had a brief shot at stopping him and saving Roe. They blew it.