Kavanaugh Has Told Us What He Is
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It’s obvious that the only question is whether Roe will be overruled quickly and explicitly or somewhat more slowly and sub silentio. This would be true if anyone on Trump’s shortlist was nominated, but there’s really not much doubt in this case:
Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, gave a revealing speech last fall in which he lauded former Chief Justice William H. Rehnquist for having dissented in Roe vs. Wade and for rejecting the notion of “a wall of separation between church and state.”
He also praised the late chief justice’s unsuccessful effort to throw out the so-called “exclusionary rule,” which forbids police from using illegally obtained evidence.
All three of areas of law — abortion, religion and police searches — are likely to be in flux if Kavanaugh is confirmed and joins the high court this fall.
Kavanaugh’s comments are significant because they were in a speech, not a court opinion in which he was bound by precedent, said David S. Cohen, a law professor at Drexel University in Philadelphia.
There’s other evidence that Kavanaugh is anti-Roe and anti-Casey as well. In a 2000 interview on CNN, after the Supreme Court struck down a Nebraska law banning dilation-and-extraction abortions (which opponents call “partial-birth” abortions), Kavanaugh commented, “I think the Court, eight years ago in Casey, thought it was calling an end to the national controversy over abortion. I think the court misperceived that the issue would stay front and center, and I think Justice Kennedy’s dissent yesterday indicates some deep unease by him about the course of the Court on this issue.” To liberal Kavanaugh skeptics, that suggests he thinks (or thought 18 years ago) that abortion is not a settled issue in constitutional law, and can and should be revisited.
Finally, Kavanaugh’s record in the case of Garza v. Hargan, which concerned a 17-year-old unauthorized immigrant’s attempt to secure an abortion while in government custody has given abortion rights advocates (and some more extreme anti-abortion advocates) pause. Kavanaugh, alongside Reagan appointee Karen Henderson, issued a ruling that the Office of Refugee Resettlement, which handles the care of unaccompanied minors in federal custody, did not have to let Jane Doe obtain an abortion, assuming she could find a “sponsor” (typically a family member or other guardian) and that the delay to find a sponsor wouldn’t “unduly burden the minor’s right” to the procedure. Patricia Millet, the third member of the DC Circuit panel and an Obama appointee, dissented strenuously.
The DC Circuit reheard the case en banc (that is, as a whole court, not just a panel) and overturned the panel’s decision, enabling the girl to have an abortion the next morning. Kavanaugh, this time, was the one to strenuously object, joined by Henderson and Thomas Griffith (a fellow Bush nominee):
The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.
Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.
Put another way, they viewed the DC Circuit’s majority as unreasonably reading Roe v. Wade to protect the right to abortion as absolute, when the Supreme Court has allowed for “reasonable regulations that do not impose an undue burden.” Kavanaugh and his fellow conservatives argued that forcing Jane Doe to wait until she had a sponsor did not impose such an undue burden.