Last summer, Sen. Susan Collins (R-ME) claimed that a Supreme Court nominee “who would overturn Roe v. Wade would not be acceptable to me.” Yet she quickly backtracked, voting to confirm Judge Brett Kavanaugh to the Supreme Court despite his anti-abortion record.
You’ll never guess what happened. Last week, Kavanaugh voted to allow a Louisiana anti-abortion law to go into effect — despite the fact that this law is virtually identical to a Texas law that the Supreme Court struck down in 2016. The Louisiana case is June Medical Services v. Gee.
Nevertheless, Collins insisted on Tuesday that she had kept her promise to not vote for an anti-Roe judge when she secured Kavanaugh’s appointment to the nation’s highest court. “To say that this case, this most recent case, in which he wrote a very careful dissent, tells you that he’s going to repeal Roe v Wade I think is absurd,” Collins told CNN.
It is true that Kavanaugh couched his vote in favor of the Louisiana law as a narrow procedural objection to the court’s decision to halt that law. But this outward framing disguised a much more aggressive agenda. Kavanaugh’s opinion calls for a massive rollback of abortion rights. Had his opinion been embraced by a majority of his court, it would have fundamentally changed the nature of abortion litigation and made it much harder for pro-abortion litigants to secure lasting victories.
It would have done so, moreover, without following the most basic procedures that the Supreme Court uses before handing down a major precedential opinion.
Gee was before the Supreme Court after a federal appeals court upheld the Louisiana law. Lawyers representing abortion providers requested a stay of that decision, and the Supreme Court granted it in a 5-4 vote — with Chief Justice John Roberts crossing over to join the court’s liberal minority.
Although this case involved a narrow question — whether to temporarily stay a lower court decision upholding the Louisiana law — Gee was closely watched because the lower court’s decision defied the Supreme Court’s recent opinion in Whole Woman’s Health v. Hellerstedt, which struck down an extraordinarily similar Texas law. If the Supreme Court had not stayed this lower court decision, it would have signaled to anti-abortion judges throughout the country that the high court will no longer enforce its decisions protecting the right to an abortion.
Like Hellerstedt, Gee involves a state law requiring abortion doctors to obtain admitting privileges at a nearby hospital. As Hellerstedt explained, “there was no significant health-related problem that” Texas’ admitting privileges law “helped to cure.”
Because admitting privileges are difficult for most abortion providers to obtain, however, these laws effectively force many abortion clinics to shut down because the clinics are unable to find doctors with the required credential. A federal trial judge determined that, had this law taken effect, Louisiana would be left with just one abortion doctor for the entire state.
In his Gee dissent, Kavanaugh argues that the Gee plaintiffs filed their request for a stay too soon — and that they should have to spend a “45-day regulatory transition period” trying to get admitting privileges before they can seek a stay again. In the process, Kavanaugh relies on a distinction between broader “facial” challenges and narrower “as-applied” challenges.
As a general rule, when a law is subject to a successful facial challenge, the entire law is invalid — it’s as if the law were never enacted in the first place. Hellerstedt was a facial challenge to the Texas admitting privileges law, and the Supreme Court agreed that the Texas law is facially invalid.
As-applied challenges, by contrast, are much more limited in scope. If a plaintiff prevails in such a challenge, the law at issue cannot be applied to them in the particular circumstances at issue in their case, but the state may still be able to enforce that law against other individuals.
Kavanaugh’s dissent suggests that the Gee plaintiffs should not be able to proceed with a facial challenge, and instead must bring “an as-applied complaint or motion for preliminary injunction” at a later date. But that would be a momentous shift in the law. Hellerstedt, after all, held that its plaintiffs prevailed in a facial challenge. Kavanaugh’s dissent would effectively overrule that aspect of Hellerstedt.
Kavanaugh would do so, moreover, in a case that was not fully briefed, did not receive oral argument, and that the court had less than a week to consider. That is simply not how things are done in the Supreme Court of the United States. If the court is going to overrule any precedent, much less one it handed down less than three years ago, it generally does so on the basis of full briefing, arguments, and months of deliberation.
Were Kavanaugh’s views to become law, it would mean that any time a new abortion provider wished to operate in Louisiana — or presumably, in any other state with a similar law — they could have to bring their own as-applied challenge. Moreover, if a Louisiana hospital changed its policy regarding admitting privileges, the state could potentially argue that a previous court decision granting as-applied relief to an abortion doctor should be lifted because the facts on the ground have changed.
Abortion rights would become a moving target. The legal costs of maintaining those rights would skyrocket. And the state would gain a bevy of new tools it could use to harass abortion providers.
And, again, Kavanaugh would do all of this in a short, four page opinion that he produced in less than a week without the benefit of full briefing or oral argument. That is not, as Collins claims, a “very careful dissent.”