Jurisprudence

Don’t Let Trump’s Abortion Rhetoric Numb You to Kavanaugh’s Distortions

The president’s words are much more bombastic, but it’s the justice’s that will matter.

Neil Gorsuch and Brett Kavanaugh.
Supreme Court Justices Neil Gorsuch and Brett Kavanaugh in the Capitol for President Donald Trump’s second State of the Union address on Feb. 5.
Jonathan Ernst/Reuters

At his El Paso, Texas, rally Monday night, Donald Trump somehow managed to outdo even Donald Trump on hardcore abortion porn. Deliberately distorting arguably botched comments made two weeks ago by now-scandal-embroiled Virginia Gov. Ralph Northam, Trump told the screaming crowd that proposed Virginia legislation would permit the state to remove a newborn infant from its parents and “execute the baby.” In his own words:

The governor stated that he would even allow a newborn baby to come out into the world and wrap the baby and make the baby comfortable, and then talk to the mother and talk to the father and then execute the baby—execute the baby. … Millions of innocent, beautiful babies are counting on us to protect them, and we will. That is why last week, I called on Congress … to immediately pass legislation prohibiting extreme late-term abortion.

In a week, the president has gone from mischaracterizing a C-section to mischaracterizing infanticide. To be clear, there is no such thing as a “late-term abortion” and also no such thing as an “extreme late-term abortion.” There are medical reasons why abortion in the second or third trimester of pregnancy is recommended, for either the infant’s or the mother’s health, and in the stunningly rare cases when this occurs, it is often the cause of deep emotional suffering. Virginia’s measure aimed to tweak the commonwealth’s medical rules such that only one provider, not three, would be needed to approve any third-trimester abortions, and permitted that physician to approve a late-term abortion for any medical reason, including harm to the mother’s mental health. Both fixes are legal and in line with Roe v. Wade. None of them has anything to do with infanticide (Northam’s garbled defense was about infants who, once born, would require extraordinary medical efforts while suffering extreme pain).

All of this is to say that Trump lied about the Virginia law. What’s the big deal? He also lied about the number of people in the venue and about federal crime statistics. That’s what he does: He lies. But his lying about abortion is particularly pernicious because of how it aids and covers for and borrows from all the other little lies about abortion that have been allowed through the net. Indeed, Justice Brett Kavanaugh’s brief dissent in last week’s Supreme Court decision in June Medical Services v. Gee allowing a Louisiana abortion law to remain enjoined was similarly full of twisted truths and distortions. These claims, about what makes women safer and what abortion really entails, work in tandem to give the courts and the president cover to undermine Roe v. Wade, even as the ruling enjoys record-high support from actual Americans (71 percent say it should be upheld).

Start with the law itself: In 2016’s Whole Woman’s Health, the Supreme Court held that the state could no longer simply assert that women’s health outcomes were being served by creating random new barriers to abortion. The majority held that laws burdening abortion access must actually further a valid state interest and that the courts could probe whether the state interest was valid. In Whole Woman’s Health, the district court found, and the Supreme Court agreed, that admitting privileges laws further no legitimate interest in health because they bring no actual benefits to women. In June Medical Services, even the 5th Circuit Court of Appeals, which reversed the original stay in September, acknowledged that the health benefits of an admitting privileges law in Louisiana were “not huge” and in fact “minimal.” And yet that “minimal” was enough for Kavanaugh to be willing to let the law go into effect.

Louisiana, like Texas, had passed a law requiring doctors who perform abortions to obtain admitting privileges at hospitals within 30 miles. June Medical Services was predicated on claims that doctors could easily obtain privileges and that if clinics closed, women would not be burdened, or enough women to matter would not be burdened. These claims are lies, which we know thanks to the district court judge, who devoted a six-day evidentiary trial to determining the underlying facts of the case before he ruled, in 2016, that the law was unconstitutional. In a 112-page opinion, he explained that one purpose of the bill was “to make it more difficult for abortion providers to legally provide abortions and therefore restrict a woman’s right to an abortion” and that “there is a mountain of uncontradicted and un-objected to evidence supporting this conclusion.” Judge John deGravelles also devoted 20 pages to spelling out the efforts of Louisiana’s five abortion providers to get privileges—over years—and the persistent delays and denials and runarounds with which they were met. All told, the five abortion doctors had applied for admitting privileges at 13 different hospitals. Only one had been granted. The court found that on multiple occasions those privileges were denied because of political or religious objections from the hospitals. That isn’t bad faith or laziness on the part of the doctors seeking privileges. That’s just what it’s like to try to obtain admitting privileges in Louisiana. It’s also the reason the physicians in the case are not named. Their lives are endangered because of the work they do.

So the district court found as a matter of fact that the law had been passed in part to deter abortions, that admitting privileges do not correlate to better health outcomes, that physicians were denied such privileges, and that women’s health would suffer in grievous ways if clinics were closed. This brings us back to Kavanaugh, dissenting last Thursday evening but writing for himself alone. Kavanaugh tried to make his vote sound like a narrow procedural quibble: He wrote that he believes the petitioners should have brought an “as applied” instead of a “facial” challenge, and that everyone should just agree to wait the 45-day statutory period in order to find out whether the physicians were actually denied admitting privileges. But as Ian Millhiser has argued, it would have made no sense to bring an as-applied challenge to a statute that is facially unconstitutional and was deemed such in 2016. And the notion that a state that had deliberately passed a law to close clinics was going to work assiduously to ensure that every doctor who wanted privileges would get them in a 45-day period is laughable (and more laughable given the total meaninglessness having privileges has on women’s health). As Leah Litman observed, at no point did the state offer to be helpful.

It’s not that any one aspect of this worldview is more untrue than another; it’s that Kavanaugh was writing as if the case arises as a thorny and intractable set of competing “predictions” from the trial court on the one hand and the appeals court on the other about what happens when the law is allowed to go into effect. Who can possibly know? wonders Kavanaugh. If only someone had invented some kind of mechanism to determine facts! We could call it, I don’t know … a court!

There was a court that determined these facts, all at great length. The appeals court simply rewrote those facts. In deciding to go along with the 5th Circuit’s sham opinion that pretended away facts determined at trial, Kavanaugh made the choice to align himself with a host of false narratives and claims raised in the appeals court about lazy doctors and benign state motives. That’s his prerogative, and it’s also unsurprising given what we know about his record. But it’s not the truth.

It’s easy to find yourself shocked by the big lies the president tells about abortion and the names he invents to cloak the big lies in confusion—they’re offensive and ridiculous. Parents don’t sit smilingly by as their babies are executed. But please don’t let the small lies slide in the cacophony; they are designed to do the exact same thing as the big ones: shock and terrorize and confuse an already fraught issue. Admitting privileges don’t make women safer in Louisiana because only a tiny fraction of abortions result in hospitalization, and no hospital would decline to take a patient because her physician doesn’t have privileges. As Richard Posner put it back in 2015, “the requirement of admitting privileges cannot be taken seriously as a measure to improve women’s health because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by a phone call, assure the access of such women to a nearby hospital in the event of a medical emergency.”

To sum up: The notion that admitting privileges make women safer is not true. The notion that it doesn’t matter if they don’t make women safer so long as women’s health isn’t burdened is not true. The notion that abortion providers in Louisiana are too corrupt or lazy to seek such privileges is not true. The idea that the state will behave reasonably to help doctors get those privileges in 45 days is not true. The notion that there is some reasonable difference of opinion between the trier of fact (the lower court) and the court of appeals is also not true.

The truth is that Louisiana passed its targeted regulation of abortion providers because it would close clinics. As the district court found, the main sponsor of the act, state Rep. Katrina Jackson, received an email in 2014 from Dorinda Bordlee, vice president of the Bioethics Defense Fund, about the Texas admitting privileges law, which she said had “tremendous success in closing abortion clinics and restricting abortion access in Texas.” That was the model; that was the purpose; that was the goal. There are two kinds of lies about abortion laws right now: Trump’s massive distortions and the polite fictions of some federal judges. Don’t let the former numb you to the latter. They are both seeking to achieve the very same ends.