A Kavanaugh Signal on Abortion?

Activists demonstrated in support of access to abortion for a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children.

We can’t be sure what the substitution of Judge Brett Kavanaugh for Justice Anthony M. Kennedy means for the Supreme Court’s abortion jurisprudence. But we can take a page from history to make an educated guess.

Two pages, actually. Let’s set two judicial opinions on the subject of abortion side by side to see what they tell us. One, less than a year old, is by the current Supreme Court nominee. The other was written by another appeals court judge, Samuel A. Alito Jr., 15 years before he became a Supreme Court justice. The Kavanaugh opinion may suggest what lies ahead if he is confirmed. Justice Alito’s opinion told us in no uncertain words.

I’ll begin there, because no one should have been surprised by what happened after Justice Alito replaced Justice Sandra Day O’Connor in 2006. Justice O’Connor had voted with the 5-to-4 majority in 2000 to declare unconstitutional Nebraska’s criminal prohibition on so-called “partial-birth abortion,” a second-trimester abortion procedure that, while rarely used in practice, proved an invaluable gift to anti-abortion politicians.

Seven years later, the court flipped, voting 5 to 4 to uphold a nearly identical law, this one passed by Congress, with Justice Alito in the majority. What happened? The court, Justice Ruth Bader Ginsburg observed in her acerbic dissent in the new case, Gonzales v. Carhart, was now “differently composed.” Then, two years ago, Justice Alito dissented from the court’s decision in Whole Woman’s Health v. Hellerstedt, which declared unconstitutional a Texas law that would have imposed needless requirements on abortion clinics and would have caused many clinics in the state to close. Justice Alito objected that predictions of the devastating effect the law would have on the availability of abortion in Texas were based on “crude inferences.” The vote in that case was 5 to 3, with Justice Kennedy in the majority.

Back in 1991, as a judge on the Philadelphia-based United States Court of Appeals for the Third Circuit, Sam Alito had proven his anti-abortion bona fides with a separate opinion in a case that reviewed Pennsylvania’s sweeping Abortion Control Act. The three-judge panel on which he sat upheld all the law’s many provisions, including a waiting period and mandatory counseling, with a single exception: the requirement that a married woman notify her husband of her intention to terminate her pregnancy. Doctors could lose their licenses for performing an abortion on a married woman without first obtaining her signature attesting that she had complied with the notice requirement.

Judge Walter Stapleton’s majority opinion, taking account of what he called “the real-world consequences of forced notification,” declared that provision unconstitutional. Most married women do discuss an abortion decision with their husbands, Judge Stapleton observed; for them, “a notification requirement is unnecessary and serves no state interest.” But he added that “the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless.” The “relevant burdens to be assessed,” he concluded, were not the burdens on married women in general, but specifically “on women who would choose not to notify their husbands in the absence of state compulsion to do so.” Because the burden on this group of women outweighed any interest that the state had in requiring notification, the provision was unconstitutional.

It was from this common-sense and compassionate analysis that Judge Alito dissented. To wave away the majority’s concerns about women’s welfare, he used arithmetic. Noting that most abortions are sought by unmarried women, and that according to expert testimony 95 percent of married women do notify their husbands, he said it was “immediately apparent” that the law “cannot affect more than about 5 percent of married women seeking abortions or an even smaller percentage of all women desiring abortions.”

He went on: “It seems safe to assume that some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering substantial ill effects.” (Which “ill effects” might be so “insubstantial” that they could just be ignored, he didn’t say.) Judge Alito’s conclusion was that there were simply not enough women for the court to worry about, and that in any event, the Pennsylvania Legislature could have “reasonably concluded” that conversation between husband and wife could “properly further a husband’s interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure.”

When the Third Circuit decision, Planned Parenthood v. Casey, reached the Supreme Court in the spring of 1992, the justices agreed with Judge Stapleton. The waiting period and mandatory counseling were constitutional. The spousal notice requirement was not. The controlling opinion, written jointly by Justices O’Connor, Kennedy, and David H. Souter, had this to say about that requirement: “The analysis does not end with the 1 percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.”

The justices went on: “For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over the wife’s decision,” adding that: “Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual’s family.”

(In an odd twist of history, Judge Kavanaugh was a law clerk for Judge Stapleton while Planned Parenthood v. Casey was under consideration by the Third Circuit. Did the young clerk agree with his judge on the spousal notice question, or with Judge Alito? Someone on the Senate Judiciary Committee should ask him.)

Justice Alito’s arid analysis as expressed in his own words, his refusal to yield to persuasion by his colleagues in the majority and the eventual rejection of his position by three Republican-appointed Supreme Court justices all speak volumes. Beyond his personal attitude about abortion, which should be irrelevant to a judge and about which we shouldn’t have to care, his opinion revealed his view of the judicial role when it comes to enforcing — or, in this case, even making a good-faith effort to understand — individual rights.

This brings me to Judge Kavanaugh and last fall’s case of the pregnant immigrant teenager whom the Trump administration tried to block from exercising her right to an abortion. The young woman, J.D., detained as an undocumented “unaccompanied minor” in the custody of an overtly anti-abortion bureaucrat in the Department of Health and Human Services, had jumped through every available hoop, including persuading a Texas judge that she was sufficiently mature to make the abortion decision. Volunteers had arranged and would pay for the procedure. The contract shelter in South Texas where she was being held would handle the logistics as it would for any other medical procedure, with no cost to the federal government. But in the Trump administration’s view, to permit the private actors to carry out their plan would be to force the government to “facilitate” abortion. By the time J.D. went to federal court, she was well into her second trimester and approaching the point when abortion would be unavailable in Texas.

Last Oct. 18, a federal district judge in Washington, D.C., Tanya Chutkan, issued an order to prohibit the administration from blocking J.D.’s access to an abortion. The judge found that further delay would cause the teenager to “suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled.”

The administration appealed, and two days later, a panel of the United States Court of Appeals for the District of Columbia Circuit voted 2 to 1 to vacate Judge Chutkan’s order and to give the administration an additional 11 days to find a sponsor who would assume custody of J.D. Presumably, if the government no longer had custody, it would not be “facilitating” an abortion that might then take place. The problem, left unacknowledged in the court’s order, was that the Department of Health and Human Services, which necessarily vets would-be sponsors carefully, had been looking for one for J.D. for six weeks without success.

Judge Kavanaugh was presumably the author of the unsigned order, given that the other judge in the majority, Karen LeCraft Henderson, wrote separately, and the third member of the panel, Patricia Millett, wrote a stinging dissent. “The government says it does not want to ‘facilitate’ the abortion,” Judge Millett wrote. “But there is nothing for it to facilitate” because everything would be handled by others. She added: “So what the government really claims here is not a right to avoid subsidizing the abortion decision; it claims a right to use immigration custody to nullify J.D.’s constitutional right to reproductive autonomy prior to viability.” It was, Judge Millett continued, “an astonishing power grab, and it flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice whether to continue a pregnancy at this early stage.”

The teenager’s lawyers appealed to the full appeals court. By a vote of 6 to 3, the court vacated the panel’s order. The abortion could proceed (which it did, the next day.) Judge Kavanaugh wrote for the dissenters. His language was strong. He accused the majority of having created “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand,” which he called “a radical extension of the Supreme Court’s abortion jurisprudence.”

Three times in his nine-page opinion, Judge Kavanaugh used the phrase “abortion on demand,” a famous dog whistle for those opposed to abortion, as odd as it is brutal-sounding. What does this phrase actually mean? We don’t say “rhinoplasty on demand” or even, for a medical emergency, “appendectomy on demand.” Here was Judge Millett’s response in her own separate opinion:

“Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she — in the government’s inimitably ironic phrasing — ‘refuses to leave’ its custody. That sure does not sound like ‘on demand’ to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.”

In his opinion, Judge Kavanaugh argued that the government was behaving reasonably. “She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor — ordinarily a family member, relative, or friend — before she makes that decision? And keep in mind that the government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion.”

In the abstract, that does sound reasonable. But in fact, J.D. had already decided that at age 17, alone and without resources, she did not want to become a mother. She had already received the permission of a state judge and counseling from a clinic physician. And every day, she was a day more pregnant.

The case, Azar v. Garza, ultimately made no law. In June, the Supreme Court issued a unanimous order vacating the appeals court’s ruling as moot. But the issue has not gone away. A class-action lawsuit is proceeding on behalf of all immigrant teenagers in federal custody who may seek abortions.

And there will be other abortion cases, lots of them, propelled to the court in the belief that a long-awaited moment — the dismantling of Roe v. Wade — is finally at hand. We have no crystal ball to tell us for sure what a new Supreme Court justice will do. But we have words, and we can read.

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