Jurisprudence

What I Got Wrong About Brett Kavanaugh and Abortion

The justice had sounded eager to prevent states from nullifying constitutional rights. Why did he change his mind?

Brett Kavanaugh pursing his lips
Brett Kavanaugh is sworn in on Oct. 8, 2018, in Washington. Jim Watson/Getty Images

During oral arguments over S.B. 8, the Texas abortion ban that empowers vigilantes to sue clinics and their “abettors” for a $10,000 bounty, Justice Brett Kavanaugh appeared to understand the state’s cynical game. S.B. 8, Kavanaugh explained, is a brazen effort to work around Supreme Court precedent, with ramifications for many other rights favored by conservatives. He brought up an amicus brief filed by the Firearms Policy Coalition, which opposed S.B. 8 out of fear that blue states could deploy the same strategy against gun rights. “This will easily become the model for suppression of other constitutional rights,” the justice said, quoting from the brief. “And it could be free speech rights,” he continued. “It could be free exercise. … It could be Second Amendment rights if this position is accepted here.” By the end of arguments, I anticipated that the justice would vote to let federal courts block S.B. 8—not because he supported abortion rights, but because he grasped the existential threat that Texas’ law posed to his court’s authority.

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I was wrong. On Friday, the Supreme Court released its decision on S.B. 8, and this circumspect, principled version of Kavanaugh had vanished. Instead, the justice threw in with the four other hard-line conservatives, shielding Texas’ attorney general and state court clerks from federal suit. His vote will likely prevent federal courts from halting S.B. 8, forcing abortion clinics to remain shuttered for fear of ruinous lawsuits. Kavanaugh did not bother to explain why he sided with the far-right flank of the court, joining a willfully obtuse opinion that trivialized S.B. 8’s radical departure from legal tradition. But his pre-SCOTUS record suggests one possibility that bodes poorly for Roe v. Wade’s survival: Kavanaugh will never cast a vote that authorizes a single abortion.

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The justice’s hostility to abortion has been evident since he served on the U.S. Court of Appeals for the District of Columbia Circuit. In 2017, he heard Garza v. Hargan, a case about a pregnant, undocumented minor known as Jane Doe. Because the 17-year-old immigrant came to the United States without her parents, the government placed her in a federally funded shelter. When she sought an abortion, a Donald Trump appointee named Scott Lloyd refused to let her get one. Lloyd, a vehement foe of abortion, objected that if he let the government “facilitate” an abortion, he might be complicit in sin. The Justice Department backed Lloyd up, claiming that the government had a “legitimate interest in promoting fetal life and childbirth over abortion.”

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This argument initially prevailed with a three-judge panel. Kavanaugh forced Doe to remain pregnant, allowing Lloyd to cancel her procedure to avoid “facilitating” it. Then Kavanaugh  instructed the government to continue seeking a sponsor who might take Doe in, absolving Lloyd of complicity in her abortion. Kavanaugh framed this outcome as a compromise, but it was not: The process of identifying a sponsor for undocumented minors takes months, and Doe was already 15 weeks pregnant. Texas, where her shelter was located, bans abortion at 20 weeks. So Kavanaugh’s proposal would merely run down the clock until Doe had no legal option but to carry her pregnancy to term.

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Four days later, the full D.C. Circuit vacated Kavanaugh’s decision and allowed Doe to get an abortion. Judge Patricia Millett mocked the idea that the government would “facilitate” Doe’s abortion by allowing it to happen. The government would not pay for the procedure, provide transportation, or fill out any paperwork, Millett explained; “it just has to not interfere or make things harder.” Kavanaugh, by contrast, embraced the Trump administration’s logic. He reasoned that, by letting Doe attend her appointment, the court had “required the government to facilitate” an “abortion on demand.”

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Kavanaugh’s performance in Garza v. Hargan was a successful audition for the Supreme Court, a demonstration of his zeal for eviscerating Roe v. Wade. Recently, during oral arguments in Dobbs v. Jackson Women’s Health Organization, he all but announced that he would follow through, spurning the notion of a constitutional right to abortion access.

His questions during oral arguments in Whole Woman’s Health v. Jackson, though, were very different. Unlike Justices Clarence Thomas, Sam Alito, and Neil Gorsuch—all of whom downplayed the threat that S.B. 8 poses to our constitutional order—Kavanaugh sounded worried. He obviously didn’t care about the law’s impact on patients in Texas. But he did fret that it would open the door to copycat legislation targeting rights that he supports, including the Second Amendment. And he coupled these concerns with (what seemed like) a genuine interest in extending precedent to allow federal suits against S.B. 8.

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Yet in the end, Kavanaugh set aside these reservations and signed onto Gorsuch’s majority opinion, which dashed all hope for a statewide freeze. Real relief would require SCOTUS to prevent state courts from even considering S.B. 8 suits. And by a 5–4 vote, with Kavanaugh in the majority, the court rejected this possibility. Gorsuch also dismissed the argument that the Texas law constitutes a unique threat to constitutional rights; in a trollish passage, he compared it to the Civil Rights Act of 1964, because that law also delegates “the enforcement of public policy to private parties.”

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It seems Kavanaugh knows Gorsuch’s opinion is nonsense. And he must also see why S.B. 8 is nothing like civil rights laws. His comments at oral arguments prove that he realizes S.B. 8 is a novel and flagrant attempt to nullify fundamental liberties with the potential to unleash dangerous copycat legislation. But he joined the opinion anyway, in full, without even trying to qualify or explain his vote. Why?

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First, Kavanaugh may be willing to set aside all other convictions to avoid complicity in abortion. He has already endorsed Scott Lloyd’s theory that government officials “facilitate” abortions by allowing them to happen. And in every abortion case that has come before him, he has voted to uphold the restrictions at issue. As legal journalist Mike Sacks has speculated, Kavanaugh (along with Amy Coney Barrett) may have been unwilling to cast a vote that would allow for more abortions—even if just for the next few months, until the court overturns Roe outright. This is the same justice who, just a few weeks ago, analogized Roe v. Wade to Plessy v. Ferguson, which blessed segregation. Had Kavanaugh sided with Chief Justice John Roberts and the liberals, he would have cast the decisive vote paving the way for a resumption of abortion service throughout Texas. To use Lloyd’s language, the justice would have “facilitated” the “sin” of abortion many times over.

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Second, Kavanaugh may feel an allegiance to the Republicans who secured his seat on the understanding that he would abolish the constitutional right to abortion. (Recall that he campaigned to get on Trump’s SCOTUS short list by giving a speech that praised the dissent in Roe.) This is a man who condemned Christine Blasey Ford’s sexual assault allegations as “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups” and warned Democrats: “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwinds.” Kavanaugh has reportedly cocooned himself among trusted friends, avoiding interactions with progressives. The political and social infrastructure that elevated him to the bench will reward him for ending abortion by any means necessary.

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Third, Kavanaugh may have struck a deal with the other far-right conservatives, securing a guarantee that if a blue state copies Texas’ playbook, the court will find a way to stop it. California is already considering a bill that would let strangers sue sellers of assault weapons and ghost guns. But the conservatives can always find a way to distinguish such legislation from S.B. 8. It’s notable that Gorsuch’s majority opinion does not mention Roe v. Wade or acknowledge precedent protecting abortion. Perhaps Gorsuch and his allies swore to Kavanaugh that when a real right is on the line, they will simply change the rules.

Whatever drove Kavanaugh’s vote in Whole Woman’s Health v. Jackson, one thing is certain: The justice is not a gettable vote on abortion. Kavanaugh presented himself as open-minded about reproductive rights throughout his confirmation hearings, and even in his first few terms on the bench. Today, as he settles into life tenure, he apparently feels no obligation to pretend any longer.

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