- President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court would solidify a 5-4 conservative majority if he were confirmed.
- This makeup of the court has many pro-abortion-rights activists concerned that abortion access and even the landmark case Roe v. Wade could be in danger.
- Legal experts, however, told Business Insider the more likely scenario is for the court to slowly chip away at abortion access one decision at a time.
The nomination of Judge Brett Kavanaugh to fill the Supreme Court seat vacated by Justice Anthony Kennedy would solidify a solid 5-4 conservative majority on the court, and it has some pro-abortion rights advocates worried about what that majority could mean for cases regarding reproductive rights.
Pro abortion-rights groups are particularly concerned by one Kavanaugh’s previous rulings. Last year, as part of a three-judge panel decision in Garza vs. Hargan for the Federal Appeals Court for the District of Columbia Circuit, Kavanaugh ruled to invalidate a previous court order mandating that an undocumented, unaccompanied teenager in government custody be allowed to leave custody to obtain an abortion.
His panel’s decision gave the government additional time to find an adult sponsor for the teen, but that decision was eventually overruled by all the judges of the District of Columbia circuit, where Kavanaugh dissented.
In addition, Kavanaugh’s handed down a concurring opinion in the 2015 case Priests for Life v. HHS, in which the Appeals Court for District of Columbia circuit upheld accommodations for faith-based nonprofits to be exempt from the Affordable Care Act’s requirement that employers include contraception in the insurance plans they offer to employees.
In a Monday night statement, Planned Parenthood Executive Vice President Dawn Laguens warned that Kavanaugh’s confirmation would spell the end for Roe v. Wade.
“We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so,” she said. “We take Trump at his word that Brett Kavanaugh would overturn Roe v. Wade and get rid of the Affordable Care Act.”
Experts say it might be more complicated
Legal experts, however, aren’t convinced that Kavanaugh’s presence alone would automatically lead to the overturning of Roe and the 1992 landmark case Planned Parenthood vs. Casey, which upheld large parts of Roe and ruled that states cannot impose an “undue burden” on patients seeking abortion.
“I do not think it particularly likely that Roe (and Casey) are likely to be overturned based on this one appointment,” Glenn Cohen, a professor at Harvard Law School and constitutional expert told Business Insider in June. “I find it hard to think that [Chief Justice] Roberts — who has a more long-term view of the arc of the court and a desire to preserve its institutional role — would facially overrule Roe.”
Cohen thinks the more likely scenario is for the majority-conservative Supreme Court to incrementally chip away at abortion access with a series of rulings, a strategy some call “death by 1,000 cuts.”
Troy Covington, a practicing litigator with Supreme Court-related expertise, told Business Insider on Tuesday that Kavanaugh’s record on abortion is less clear-cut than some on the left make it out to be.
“In the days leading up to the nomination, you really had a lot of criticism of Judge Kavanaugh from the right, saying that he was not ‘pro-life’ enough basically, that dealt with the 2017 case with the undocumented immigrant,” he said. “The criticism was that he didn’t do it strongly enough.”
In his dissent, Kavanaugh conceded that unauthorized immigrants on US soil do have a right to due process under the 14th Amendment, but wrote that undocumented youth in custody were not entitled to “abortion on demand.” In his Priests for Life vs. HHS opinion, he also wrote that the government had a “compelling interest” in enabling contraception access.
Nonetheless, Jeanne Mancini, the president of anti-abortion rights March for Life said in a statement to Business Insider that Kavanaugh was “exceptionally qualified for the role and will no doubt serve as a fair, independent judge who will remain faithful to the Constitution.”
Another anti-abortion group, the Susan B. Anthony List, announced they would be “mobilizing the pro-life grassroots nationwide and in key Senate battleground states to urge the Senate to swiftly confirm Judge Kavanaugh.”
“Judge Kavanaugh has spoken before about the value of precedent, so it’s impossible to say for sure, but I think the most likely outcome if he is confirmed is that we would not see a stark reversal [of Roe] overnight,” Covington predicted. “But, with the ability of the court to sort of move at the margins and let a regulation stand here and let another regulation stand there, when you add it all up it restricts access. … Those cases are going to keep coming.”
Some of these state-level restrictions on abortion access that could be ruled on by the Supreme Court in the coming years include “TRAP” laws mandating certain hallway sizes and hospital-admitting privileges for clinics, requirements that patients undergo an ultrasound and a waiting period before an abortion, and laws that ban the procedure altogether after a certain number of weeks.
A lot is left to be decided by the Court, but Covington said it’s certain that “the boundary of Roe is going to continue to be defined.”