Jurisprudence

A Trump Judge Just Gave Brett Kavanaugh a New Way to Overturn Roe v. Wade Without Admitting It

A protester holding a sign urging the Supreme Court to overturn Roe v. Wade.
A protester during a demonstration outside the Supreme Court on March 4, 2020. SAUL LOEB/Getty Images

This fall, the Supreme Court will hear arguments in Dobbs v. Mississippi, a challenge to Mississippi’s 15-week abortion ban. The court appears likely to uphold the restrictive law, overturning a near half-century of precedents prohibiting abortion bans before viability. As Steven Mazie and Melissa Murray pointed out in the Washington Post, however, the conservative supermajority may diminish Roe v. Wade without formally reversing it. On Thursday, John K. Bush, a Donald Trump nominee who serves on the 6th U.S. Circuit Court of Appeals, offered a new workaround that would allow SCOTUS to end the constitutional right to abortion access without admitting it. And it seems designed to persuade the one justice, Brett Kavanaugh, whose vote matters most in Dobbs.

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Before Trump elevated him to the bench, Bush decried abortion as one of “the two greatest tragedies in our country,” alongside slavery; he also compared Roe to Dred Scott, the decision that denied American citizenship to Black people. Bush joined the 6th Circuit’s 9–7 decision in Bristol Regional Women’s Center v. Slatery upholding Tennessee’s mandatory 48-hour waiting period for abortion patients. The majority opinion in Bristol, authored by culture warrior and Trump nominee Amul Thapar, was predictable. His cursory analysis rested on the Supreme Court’s declaration in Planned Parenthood v. Casey that an abortion restriction violates the Constitution if it imposes an “undue burden” on a “large fraction” of women. “Most women who wanted an abortion continued to access abortion services in Tennessee,” Thapar wrote. Abortions declined about nine percent after the law took effect, and even if that decline can be attributed to the new waiting period, it does not qualify as a “large fraction.” As a result, the law passes constitutional muster.

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Thapar’s approach does not, in fact, adhere to Supreme Court precedent. In cases like Casey, Whole Woman’s Health v. Hellerstedt and June Medical Services v. Russo, the justices explained that courts must ask whether a restriction affects a large fraction of “those women for whom the provision is an actual rather than an irrelevant restriction.” Here, that means women who are certain they want an abortion but are forced to wait at least 48 extra hours and make multiple trips to the clinic. The trial judge found that the law imposed an undue burden on a large fraction of these women, the relevant class of patients for constitutional purposes. Thapar simply rewrote precedent to reject this finding.

But he did not go far enough for Bush. In a concurring opinion joined by Judge Richard Allen Griffin, Bush proposed an even more radical route around pro-choice precedent. (These two judges recently teamed up to accuse abortion patients of engaging in eugenics.) After scorning the very concept of a constitutional right to abortion access, Bush attempted to revise the “large fraction” test to make it impossible to pass. When a state passes a new abortion restriction, then sees a decline in its abortion rate, Bush wrote, courts cannot assume that the restriction caused the decline. Rather, plaintiffs “must show a causal connection” between the law and the resulting drop in abortions. Somehow, they must differentiate “between those women who wanted to get an abortion but were stymied by the requirements of the law” and those who “decided to carry the child to term” because of the law. Even if an abortion restriction results in “a hundred percent decrease in total abortions, that fact alone would be insufficient to satisfy the large fraction test.” According to Bush, the 100 percent decrease might merely be evidence that the state succeeded in persuading patients not to terminate.

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There are a few problems with this standard. First, it is totally detached from binding Supreme Court precedent. As Judge Karen Nelson Moore noted in dissent, SCOTUS typically looks at “generalized evidence” to measure burdens. And when it does use statistics, the court presumes that a dropping abortion rate can be attributed to recently enacted abortion restrictions. In Whole Woman’s Health, for instance, the majority held that the closure of roughly half of Texas’ abortion providers—and the resulting decline in abortions—was attributable to the abortion law at issue. It did not require the complex statistical analysis that Bush demanded.

Second, as Nelson wrote, the only way to satisfy Bush’s test would be to survey “every woman who considered but ultimately did not follow through on an abortion.” This is “a plainly impossible task,” and it would doom every challenge to virtually every abortion limitation. Even an outright abortion ban might pass muster under Bush’s standard, since no one could prove that most women who forewent abortions did so because the procedure was criminalized. But, of course, that’s the whole point. By denying common sense, Bush would compel courts to uphold the most extreme abortion laws—including those that result in a 100 percent decline in abortions—while purporting to uphold Roe and its progeny.

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This sleight of hand is reminiscent of Brett Kavanaugh’s ploy in June Medical. That 2020 decision involved a Louisiana law that targeted abortion clinics for onerous regulations designed to shut them down. The plaintiffs argued that this measure would force most clinics to shut down, leaving just one doctor in the entire state who was able to perform abortions legally. Kavanaugh, though, did not believe that cause (a TRAP law) equaled effect (shuttered clinics). Instead, he repeatedly argued that the Supreme Court should let the Louisiana law take effect and see what happened next. If the doctors could not satisfy the regulations “after good-faith efforts,” they could bring a new, narrower challenge seeking, in effect, an exemption from the law.

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Kavanaugh’s approach, like Bush’s, would obligate abortion providers to prove the impossible. These doctors already tried to obtain approval under Louisiana’s regulations, but they could not, because approval was designed to be unobtainable. Kavanaugh would force them to try again and again and again, condemning them to a Sisyphean task. In the meantime, Louisiana would shutter their clinics, preventing patients from accessing abortion. If the clinics came back to court, Kavanaugh could insist that they hadn’t really made “good-faith efforts,” and needed to keep trying. Clinics might argue that they closed their doors because of the law. But Kavanaugh could deny this causal link, asserting that, in reality, clinics hadn’t tried hard enough to comply with it.

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It’s easy to see how the Supreme Court could use a variation on this game to uphold Mississippi’s 15-week abortion ban. As Mazie and Murray noted, the state’s lone abortion clinic only provides the procedure until 16 weeks of pregnancy. SCOTUS might let the law take effect—then claim that clinics could sue again if a “large fraction” of patients sought an abortion between 15 and 16 weeks but were denied due to the law. In practice, it will be impossible for providers to prove that a substantial number of people would fall into this category: Most likely, those who want an abortion after 15 weeks will just give up, aware that the law criminalizes their choice. And because providers can’t demonstrate a causal link between the 15-week ban and the decline in abortions after 15 weeks, they could not block the law.

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Perhaps the Supreme Court will take the more straightforward path of reversing Roe altogether, freeing abortion providers, patients, and lower courts from a statistical booby trap. Then again, the arch-conservative justices need Kavanaugh’s vote, and the justice has already signaled his desire to uphold precedent on paper while hollowing out abortion rights in practice. If he decides to feign moderation, Kavanaugh can take Bush’s cue and pretend as though there’s no connection between abortion restrictions and their intended consequences. This oblique assault on Roe might be craven and dishonest, but it will get the job done.

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