People For the American Way

Brett Kavanaugh’s Anti-Choice, Anti-Woman History

News and Analysis
Brett Kavanaugh’s Anti-Choice, Anti-Woman History

Since the Supreme Court decided Roe v. Wade in 1973, there’s been no shortage of anti-choice zealots who have attempted to eviscerate women’s bodily autonomy. But if Brett Kavanaugh is confirmed as the Supreme Court’s newest justice, Roe—and the essential protections it provides— is at serious risk of being overturned.

Since Trump announced the Kavanaugh nomination, conservative media have tried to paint him as an establishment choice with a moderate record, but that couldn’t be further from the truth. Brett Kavanaugh is a dangerously conservative ideologue. He passed President Trump’s litmus test for any Supreme Court justice nominee when he promised to overturn Roe v. Wade. His rulings provide ample evidence that he would not hesitate to gut Roe v. Wade or dismantle the Affordable Care Act.

Trump’s misogynistic attacks predate his presidency, and as president, he’s demonstrated just how far he’ll go to repeal women’s rights. In May, his administration proposed a new “gag rule” that attacks women’s access to birth control and other reproductive and preventive health services by gutting the Title X family planning programs. If fully implemented, the consequences will be devastating, especially for low-income women and women of color who rely on those federal protections for care. And his 2019 budget proposes to gut women’s health programs and limit women’s access to care.

But packing our nation’s highest court with far-right extremists like Gorsuch and Kavanaugh all but ensures that Roe will be overturned. And while Kavanaugh hasn’t spoken publicly about his record on abortion, he doesn’t have to. Both his inclusion on Trump’s litmus test shortlist and his record make clear the kinds of decisions he would issue as a Supreme Court justice.

Indeed, Kavanaugh’s contempt for women’s reproductive rights and choice is in perfect alignment with Trump’s. As a judge on the D.C. Court of Appeals, he blocked a lower court’s order requiring the federal government to allow a 17-year old undocumented immigrant to have an abortion. He believes employers should be able to deny their employees access to no-copay birth control under their health insurance plans. And in a speech he made in 2017, he said:

“Consider next the Fourteenth Amendment and abortion. The Supreme Court said in Roe v. Wade that there was a right to abortion in certain circumstances. But that has raised a follow-on issue that has come up again and again in the years since Roe. What regulations of abortion are permissible? Informed consent, waiting periods, partial-birth bans, doctor licensing, parental notice, and the like. What is the answer and more importantly for present purposes, what is the nature of the test we should use to figure out the answer?

“Since 1992, the Court has settled on an undue burden test. That test is very much a common-law kind of test. Does the law burden the woman’s right? And if so, is that burden ‘undue’? The word ‘undue’ calls for a classic assessment of the pros and cons of the regulation in question. And not surprisingly, that is how Justice Breyer articulated the test in the most recent abortion case, Whole Woman’s Health.”

In another speech, he praised the late Chief Justice William Rehnquist for his dissent in Roe.

With another anti-choice Justice on the Court, Roe is in real danger. As Supreme Court commentator Jeffrey Toobin pointed out soon after Justice Kennedy retired, if another jurist in the mold of Gorsuch or Alito is confirmed to the Court, “abortion will be illegal in twenty states in 18 months.”

After Trump announced his nomination, the White House issued 34 congressional testimonials to reporters praising Kavanaugh for his “impeccable credentials.” All 34 were made by white male senators and representatives.

We must not allow Trump to roll back the clock on a woman’s right to choose. But Brett Kavanaugh’s anti-choice record leaves no question about the dangerous fate of Roe v. Wade—and millions of American women—if he is confirmed.