Anti-abortion activists literally spent the last three decades working towards the moment that came last night. On Monday, Donald Trump nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy. Kavanaugh will be the fifth vote to kill Roe v. Wade. We know this because Kavanaugh said pretty explicitly that he hates Roe v. Wade.
And yet, the very same activists who made overruling Roe their life’s work are suddenly being very coy in their moment of triumph.
Consider the words of Leonard Leo, the Federalist Society executive and power-behind-the-throne in the Trump White House’s judicial selection machine. Leo claimed on ABC News on Sunday that “we’ve been talking about [abortion] for 36 years, going all the way back to the nomination of Sandra O’Connor,” and that “after that 36 year period, we only have a single individual on the court who has expressly said he would overturn Roe.”
The claim that conservatives might actually achieve an outcome they’ve sought for 36 years is “a bit of a scare tactic and ranks speculation more than anything else,” according to Leo.
The American Family Association, a Christian right non-profit that opposes abortion, even urged its members to “tell Senators to oppose Judge Kavanuagh,” claiming that it has “concerns with his opinion related to illegal alien female minors who are expecting but also seeking an abortion in the United States.”
The idea that Kavanaugh is somehow an unreliable vote against abortion is ridiculous. I know this because I read the transcript of a speech he gave last year, where he criticized Roe v. Wade. I also know this because I read that “illegal alien female minors” opinion that the AFA is so up in arms about.
The speech
Last September, the conservative American Enterprise Institute hosted Kavanaugh, and the judge delivered remarks praising the late Chief Justice William Rehnquist. In that speech, Kavanaugh discussed Rehnquist’s dissenting opinion in Roe and the late Chief’s majority opinion in Washington v. Glucksberg, which upheld a state law banning assisted suicide.
“Even a first-year law student could tell you that the Glucksberg’s approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe vs. Wade,” Kavanaugh explained. While Rehnquist ultimately “was not successful in convincing a majority of the justices” to overrule Roe entirely, Kavanaugh said that Rehnquist “was successful in stemming the general tide of free willing judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition” — by which Kavanaugh meant decisions such as Roe.
“The Glucksberg case,” Kavanaugh concluded, “stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.”
To Kavanaugh, in other words, Roe‘s sin was that it inserted the Court into “the realm of social policy” and it exceeded the Court’s role as a “court of law.” Though Roe has not yet been overruled — largely due to Justice Anthony Kennedy’s hesitancy to explicitly overrule a landmark precedent — Kavanaugh praised Glucksberg for ensuring that there would be no more Roe-like decisions in the future.
The opinion
Based solely on this speech, it is possible — though unlikely — that Kavanaugh would follow Justice Kennedy’s path and reluctantly agree that Roe should not be overruled even though he hates it. But Kavanaugh’s conduct as a lower court judge proves that he is very willing to roll back Roe v. Wade, even in ways that cannot be squared with existing law.
Garza v. Hargan is an Orwellian case. The Trump administration literally held undocumented pregnant minors prisoner to prevent them from having an abortion.
In Garza, Kavanaugh’s court considered a 17-year-old girl who arrived in the United States pregnant. Though the record in the case is limited, it’s likely that she became pregnant due to sexual abuse. Nevertheless, the Trump administration held her in a detention facility and refused to let her travel to a clinic to receive an abortion.
Kavanaugh’s opinion in Garza is rather weaselly. Because the Supreme Court held in Planned Parenthood v. Casey that the government cannot enforce a policy that has the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” Kavanaugh could not, as a lower court judge, outright state that the government may hold a pregnant person prisoner until they can no longer terminate the pregnancy. But his opinion very well could have had that effect.
The thrust of Kavanaugh’s dissenting opinion in Garza is that the Trump administration may prevent a pregnant immigrant from receiving an abortion while they search for an “immigration sponsor” who can take custody of the immigrant. On the surface, that appears to be an argument for delaying the abortion, not for denying it entirely. But there are two reasons why Kavanaugh made a much deeper cut into abortion rights.
For one thing, two of the pregnant teenager’s family members already came forward and offered to sponsor her, but the government rejected these potential sponsors for unclear reasons.
For another, as Slate’s Mark Joseph Stern explains, the teenager at the heart of Garza was already 16 weeks pregnant when this case crossed Kavanaugh’s desk. Kavanaugh would have allowed the Trump administration to detain her for nearly two more weeks while it sought a sponsor, a process that ordinarily takes months. Then, if no sponsor stepped forward, Kavanaugh would have only allowed her to “return to court and argue the case all over again, with no assurance that [she] could get her abortion.”
Meanwhile, Texas law (she was being held in Texas) bans abortions after 20 weeks. Kavanaugh’s approach, in other words, very well could have let the Trump administration run out the clock until she could no longer obtain a legal abortion.
Again, Kavanaugh was a lower court judge when he wrote this opinion, so he could not simply proclaim that Casey is garbage and he won’t follow it. So he did the next best thing for abortion opponents. He pushed the envelope to maximize the government’s ability to restrict abortion, while also paying lip service to existing precedent.
Golden operating rooms
This push-the-envelope approach is a staple of the anti-abortion community’s legal strategy. The top lawyers in this community are very smart, and they know that there are two ways to overrule Roe. One is to convince the Supreme Court to actually write the words “Roe v. Wade is overruled.” The other is to pretend that Roe or Casey remain good law, while simultaneously permitting nearly any abortion restriction to stand.
Indeed, that is the approach that abortion opponents took in Whole Woman’s Health v. Hellerstedt. That case involved a Texas law which imposed unnecessary and expensive building regulations on abortion clinics, as well as pointless credentialing requirements on abortion providers. The idea was to force clinics to shut down by driving up their operating costs and starving them for doctors.
This strategy failed in Whole Woman’s Health, but it failed in a 5-3 decision with Kennedy in the majority. Now that Kennedy is gone, the dissenters will have the fifth vote they need to uphold Texas-style laws.
So Kavanaugh may never join an opinion that actually uses the words “Roe v. Wade is overruled,” but that won’t matter very much. All Kavanaugh needs to do is hold that Texas can require every abortion clinic to feature a solid gold operating room, or require every abortion doctor to complete a 100,000 hour training course taught by Mike Pence.
A decision upholding such a law would have the same effect as a decision overruling Roe. It would just be less honest.
The Collins gambit
Leonard Leo knows this. He knows that there are already four members of the Court who despise Roe. And he knows full well what Kavanaugh thinks about this decision as well.
So what’s really going on here?
The most likely explanation is that the Senate is close to evenly divided, and two Republican senators, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), claim to be pro-choice. Collins even claimed that a nominee “who would overturn Roe v. Wade would not be acceptable to me.”
That promise isn’t worth very much, as Collins also made the improbable claim that Neil Gorsuch isn’t a vote to overrule Roe. But when you’ve spent 36 years fighting to overrule Roe, you don’t want to take any chances.
That’s why some of Roe‘s most prominent opponents want to obscure the truth about Judge Kavanaugh. If they run through the hills crowing about their impending victory, Collins and Murkowski might get cold feet, and then that victory could be lost.
But let’s dispel with this fiction that Leonard Leo doesn’t know what he’s doing. He knows exactly what he’s doing. And he knows exactly what Brett Kavanaugh thinks about Roe v. Wade.