WASHINGTON — Watching Supreme Court nominee Brett Kavanaugh testifying before the Senate Judiciary Committee, legal analyst Rebecca Buckwalter-Poza noticed something curious: In his exchanges with Democratic legislators, Kavanaugh seemed incapable of mentioning Roe v. Wade, the landmark 1973 abortion decision, without also mentioning Planned Parenthood v. Casey, the lesser known but equally important 1992 ruling on how individual states could (and could not) regulate abortion.
Asked, for example, by Sen. Dianne Feinstein of California, the committee’s ranking Democratic member, how he viewed “a woman’s right to choose” to terminate a pregnancy, Kavanaugh made a point of quickly turning from Roe to Casey, which he called “precedent upon precedent.”
Kavanaugh cited Casey again when questioned later that day by Dick Durbin, Democrat of Illinois, about his dissent in Garza v. Hargan, the case of a 17-year-old undocumented immigrant seeking an abortion in Texas. In his only abortion-related opinion, Kavanaugh wrote that the young woman needed to find an immigration sponsor in order to fulfill a parental consent requirement, despite that requirement having been waived by a lower court judge.
“Precedent is not like a cafeteria,” Kavanaugh said when questioned about that dissent, which appeared to have improved his standing with the conservative groups that have largely guided Trump’s judicial appointments. And those appointments have proceeded apace even as other aspects of Trump’s agenda have faltered.
Buckwalter-Poza, who successfully sued President Trump for blocking Twitter users, seized on this exchange, which she identified as key to Kavanaugh’s strategically unclear views on reproductive rights. “Contra Kavanaugh’s claim he can’t offer any hints or forecasts, his fondness for bringing up Casey does just that,” wrote Buckwalter-Poza, who obtained her law degree from Yale and provides legal analysis to the Daily Kos, a liberal political site. “If Kavanaugh’s confirmed, states will have free rein to eliminate abortion access via increasingly draconian laws.”
Kavanaugh testified for two days, becoming entangled in heated exchanges with Sens. Pat Leahy of Vermont and Kamala Harris of California, both of whom routinely called his credibility into question. But his comments on Casey may offer the clearest sign yet of how Kavanaugh would actually rule in an abortion case. And one is bound to come before the Supreme Court, with 14 abortion-related cases now in appellate court, according to Helene Krasnoff, vice president for public policy litigation and law at Planned Parenthood. Any one of them could end up in Kavanaugh’s docket.
Kavanaugh’s comments on Casey strongly suggest that, as a Supreme Court justice, he would move to allow states to place onerous restrictions on abortion, restrictions that could come close to outlawing the procedure altogether.
In his testimony, Kavanaugh said that Casey “reaffirmed” Roe v. Wade. In the narrowest sense, that is true: A Supreme Court stocked with Nixon and Reagan appointees could have overturned Roe, but didn’t. Among those who did want to overturn Roe, and who dissented from the pro-Roe portion of Casey, was William Rehnquist, the conservative chief justice whom Kavanaugh has praised as “stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
But despite its narrow affirmation of Roe, the Casey ruling also gave states enormous latitude by creating the notion of “undue burden.” Crucially, the justices wrote that while “the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed.” As long as the restriction placed by a state on abortion was not deemed by the courts to “impose an undue burden on a woman’s ability” to choose to have an abortion, that restriction was not forbidden by Roe. And of the several burdens presented in Casey, only one — spousal notification — was deemed “undue,” while state regulations requiring informed consent, parental consent and waiting periods were not.
As one abortion rights activist lamented at the time, “The justices have blown a hole in Roe big enough to drive a Mack truck through.” Casey and the state law that followed in its wake led to six states with only a single abortion clinic.
The deferral to states’ rights, not the upholding of Roe, makes Casey attractive to conservative jurists like Kavanaugh. References to the case, of the kind the nominee made last week in front of the Senate Judiciary Committee, are widely seen as a kind of coded assurance to conservative supporters. Those supporters openly expect Kavanaugh to curtail abortion rights, even as his opponents continue to make their case against him.
“Judge Kavanaugh’s views on women’s reproductive rights are crystal clear,” Sen. Feinstein told Yahoo News. “There aren’t any restrictions he would consider ‘too burdensome’ to violate Supreme Court precedent related to women’s reproductive freedom.” Those views came into especially stark relief when Sen. Cory Booker, D-N.J., defied protocol and released a confidential email from 2003 in which Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent.”
But even without that email, Kavanaugh’s repeated allusions to Casey make clear what he truly believes. “He is showing us exactly what he believes,” abortion rights activist Erin Matson wrote on Twitter. For Kavanaugh, she said, Casey “is the key to blocking access to abortion.”
Those beliefs are not outside the American mainstream: 29 percent of Americans want abortion made illegal. At issue is not whether Kavanaugh holds that belief, but whether he has stated his beliefs honestly and completely. He — and his detractors — are acutely aware that in order to gain confirmation from the full Senate, he must win over two pro-abortion-rights Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska. And although he has assured both that Roe is “settled law,” his views on Casey call into question the candor of such assurances.
“Kavanaugh’s views on Casey are critically important because they could pave the way for him to curtail access to abortion without explicitly overturning Roe,” says Nan Aron of Alliance for Justice, a nonprofit that advocates for a liberal judiciary. “His record shows that he has an expansive interpretation of precedents, like Casey, that allow states to restrict abortions in many ways as long as they stop short of an ‘undue burden.’”
An indication of how Kavanaugh could use Casey to smother Roe is evident in his dissent in Garza v. Hargan, the case of the Texas teenager. Kavanaugh was the only member of a three-justice D.C. Circuit Court panel to argue against granting the 17-year-old immigrant in question access to abortion. He described her as seeking an “abortion on demand,” an intentionally incendiary phrase deployed by anti-abortion groups. More importantly, he ruled that the young woman be ordered to find an immigration sponsor, an imposition beyond all the requirements she had already met. Kavanaugh said it was his duty to “apply the precedents and principles articulated in Supreme Court decisions.”
His argument was obviously intended to placate anti-abortion groups who were then preparing to recommend a replacement for Anthony Kennedy, who was rumored to be on the cusp of retiring. The majority on the court easily dispensed with Kavanaugh’s meager reasoning, noting that having the young woman spend weeks searching for an immigration sponsor was the very definition of an “undue burden.”
But if he were to join the Supreme Court, Kavanaugh would become part of a five-justice conservative majority that shares his views on Casey. Those convictions were most recently made clear in dissents by Samuel Alito (appointed by George W. Bush) and Clarence Thomas (a George H.W. Bush nominee) in Whole Woman’s Health v. Hellerstedt, a 2016 involving new restrictions on abortion access Texas was seeking to impose. Thomas, in particular, returned to Casey as a standard from which the Supreme Court had deviated by preventing Texas from instituting new burdens on receiving an abortion.
Neil Gorsuch, Trump’s first Supreme Court appointee, had not yet been seated at the time of the Whole Woman’s Health decision, and his precise views on abortion are not entirely certain. However, he is widely expected to to share in the conservative interpretation of Casey, which sees the decision as allowing new burdens, as long as justification for those burdens can be provided.
“Precedent,” then, takes on a whole new meaning, as a way to eviscerate Roe, not protect it. An aide to a Democratic member of the Senate Judiciary Committee described Kavanaugh’s appeal to “precedent” as disingenuous. Precedent, after all, is nothing more than a decided case, and Kavanaugh’s favorable view of Casey suggests that he is content with piling new, restrictive decisions upon Roe until the landmark decision is finally suffocated. The more anti-abortion precedent there is, the weaker the Roe precedent will become.
On this, anti-abortion activists agree. One of them, the Rev. Frank Pavone, wrote in an op-ed for the conservative outlet LifeSiteNews, “Precedents don’t last forever. Precedents can be wrong.” He predicted that with Kavanaugh on the court, Roe would “go the way of other discarded lies,” such as racial segregation.
The irony of the Kavanaugh hearings is that, despite his incessant evasions, his views are remarkably clear. There is “no question of how he would vote on abortion,” says Amanda Thayer, a spokesperson for NARAL Pro-Choice America. On this, she and Pavone might agree, even if they agree on little else. The question now is whether Kavanaugh will get the chance.
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