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For opponents of President Donald Trump’s new Supreme Court nominee, conservative judge Brett Kavanaugh, the argument is clear: abortion access in this country could become even more difficult to obtain, nearly 50 years after Roe v. Wade made the procedure legal.
Granted, the landmark 1973 ruling won’t be reversed overnight, but Kavanaugh’s nomination is galvanizing those who say his judicial track record is an obvious indicator of how he’d rule in future cases surrounding abortion law and other key women’s issues, including policies affecting contraception and same-sex marriage. Here’s a rundown.
Does Kavanaugh want to protect abortion rights?
It’s complicated. But in short, critics say no.
Kavanaugh, 53, is a Yale-educated judge on the U.S. Court of Appeals for the D.C. Circuit and has promised to keep an open mind if confirmed to the high court. But critics have been citing his position in 2017’s Garza v. Hargan as a perfect-storm example of why they’d expect him to be a Supreme Court hardliner on both abortion and immigration. (The case involved an undocumented minor who sought an abortion while in federal custody. Kavanaugh supported delaying the procedure until a sponsor could be found for the girl.)
“Brett Kavanaugh’s decisions show a disdain for immigrants and young people’s decision-making ability, as well as a lack of concern for the barriers and hurdles placed in the path of those seeking abortion,” said Diana Thu-Thao Rhodes, director of public policy for the group Advocates for Youth, via email.
Pro-life groups cheering Trump’s selection point to Kavanaugh’s argument that helping the teenager terminate her pregnancy ran against the government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
Here’s where it gets murky: Kavanaugh hasn’t explicitly said he’s for overturning Roe. In fact, he said in 2006 confirmation proceedings that he’d uphold it as the law of the land.
But his confirmation could change the court’s direction on abortion rights: He’s a proven conservative who would fill the seat now held by Justice Anthony Kennedy, a swing voter who sided with liberals in rulings that have defended the protections established by Roe. (Kavanaugh, incidentally, once clerked for Kennedy.)
According to Sen. Patty Murray, who represents Washington state and is the top Democrat on the Senate Health, Education, Labor & Pensions Committee, if Kavanaugh is confirmed, we can expect a wave of anti-abortion cases to hit the legal system—with some potentially making it to the Supreme Court. As Glamour previously reported, states are already standing to enact local laws that would make it harder to terminate a pregnancy.
Does Kavanaugh support a woman’s right to use birth control?
It’s unclear at this time, but the better question is whether Kavanaugh thinks employers who oppose birth control on moral grounds should be required to help employees obtain contraception. And that, critics say, is what gives them pause due to another high-profile Kavanaugh case: 2015’s Priests for Life v. the U.S. Department of Health and Human Services, which involved an employer’s religious objection to helping workers obtain insurance coverage for contraceptives.
Murray noted Kavanaugh “sided with employers on covering contraception. So it’s not just abortion … this is a judge who will not side with [workers].”
In talking about the case, Kavanaugh made reference to the famous 2014 SCOTUS ruling in Burwell v. Hobby Lobby, which established that some companies could refuse to offer contraceptive coverage on religious-objection grounds. He said regulations that make employers help get their workers access to federal coverage for prevention of pregnancy (by filling out a form) “require the organizations to take an action contrary to their sincere religious beliefs.”
At the same time, Kavanaugh did also write that “Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations,” but Planned Parenthood said the Priests dissent showed “Kavanaugh would have granted more employers the ability to deny women access to no-copay birth control coverage, effectively placing a woman’s boss between her and her health care provider.”
Does Kavanaugh support same-sex marriage?
Kavanaugh doesn’t have a slew of decisions on record that establish the profile of someone bent on ending legal same-sex marriage in America. However, some LGBTQ advocates are approaching his nomination with suspicion or open opposition.
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In a once-over of Kavanaugh’s background, Lambda Legal, a national gay rights group, pointed to the enthusiastic support he’s gotten from conservative groups, such as the Family Research Council, that oppose gay marriage and even homosexuality itself.
Lambda Legal also highlighted past remarks Kavanaugh made that suggest a president doesn’t have to obey laws he considers unconstitutional. The group said questions about presidential powers and their limits are “at the heart of every challenge to arbitrary presidential action ranging from the separation of children from their families at the border to the declaration of a ban on military service by transgender people.”
Charlotte Clymer of the Human Rights Campaign told Glamour that LGBTQ advocates see some of Kavanaugh’s rulings as “suggesting that personal beliefs are a reasonable basis to discriminate against someone.” While “access to reproductive healthcare, alone, is deeply concerning,” Clymer said, those cases are also highly relevant to how he might handle decisions affecting LGBTQ rights.
So what’s the bottom line?
Despite debate and opposition, not everyone’s attacking Kavanaugh as a biased jurist, or one without academic, intellectual, or personal qualifications for the job.
Writing Monday in the New York Times under the headline, “A Liberal’s Case for Brett Kavanaugh,” Yale Law Professor Akhil Reed Amar, said, in part: “In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.”
Still, among liberals and Democrats—at least the most vocal ones—Amar may not be in the majority.
Democrats may have a tough time blocking confirmation of Kavanaugh, who’s widely supported by Republicans who hold the Senate majority. Murray said opponents are still going to apply pressure to keep him off the court, forcing Trump to look to another Kennedy replacement who might be more moderate on social issues.
“If we defeat this, we’ve got a better shot at someone who’s not going to be an extreme jurist,” she said. “This is a court that’s going to have five men on it who will overturn Roe v. Wade. It will only be a matter of time.”
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