Women’s Reproductive Rights After Kavanaugh

At the time of his confirmation hearing, now Justice Kavanaugh assured senators that Roe v. Wade[1]was “settled law,” as a precedent entitled to respect.[2]This was a self-evident “dodge.”[3]In fact, in 2003, he authored an email containing a draft opinion piece that supporters of one of President Bush’s conservative appeals court nominees hoped he could persuade anti-abortion women to submit under their names, in which he stated “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the Court can always overrule its precedent, and three current Justices on the Court would do so.”[4]In fact, during the last term, the Supreme Court overturned established law in two 5-4 opinions [5], and one of them concerned what the late Justice Stewart called “a case of ‘stare decisis’ double dipped.”[6]

More troublesome is Justice Kavanaugh’s record at the District of Columbia Circuit. In one of his last opinions, a dissent to the en banc decision in Garza v. Hargan[7]in that case, a 17 year old, apprehended after illegally crossing the Mexico-United States border into Texas, was placed into the care of the Office of Refugee Resettlement (“ORR”), as an unaccompanied minor. The minor was then eight weeks pregnant and decided to have an abortion. A Texas judge

granted Jane a judicial bypass to the state’s parental consent law and allowed her to seek an abortion on September 25, 2017.

The ORR refused to allow the minor to leave the shelter to have her abortion. In March 2017, the new ORR Director, Scott Lloyd, forbade federally funded shelters from taking “any action that facilitates” an abortion without his express approval. The minor’s guardian ad litem, Rochelle Garza, then sued the Acting United States Secretary of Health and Human Services, Eric Hargan, in the United States District Court for the District of Columbia, alleging that the government was violating Jane’s constitutional right to an abortion in the United States.

Judge Tanya S. Chutkan granted the request for a temporary restraining order, compelling the government to allow the minor, Jane, to leave the shelter to attend the pre-abortion counseling required by Texas law and to undergo the abortion. A panel of the United States Court of Appeals for the District of Columbia Circuit granted the government’s emergency motion to stay Judge Chutkan’s order. In an unsigned order written by Circuit Court Judges Brett Kavanaugh and Karen L. Henderson, the District Court order allowing the abortion was stayed until October 31, provided that the government “expeditiously” placed Jane in an outside sponsor’s custody.  Circuit Judge Patricia Millett wrote a dissent in which she argued that the majority was imposing an undue burden on abortion.

The full en banc D.C. Circuit reversed the panel majority, reimposing the District Court’s order requiring the government to grant Jane access to an abortion. Judge Millet added a concurrence reiterating the arguments in her earlier dissent. Judge Henderson dissented, arguing that an undocumented immigrant is not a “person” under the United States Constitution and so does not have rights under the Due Process Clause. Then Judge Kavanaugh, joined by Judges Henderson and Thomas B. Griffith, dissented, defending the panel decision.

According to Judge Kavanaugh, the panel “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.”[8]

He went on to say, “The majority’s approach is radically inconsistent with 40 years of Supreme Court precedent. The Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible Government purposes. These include parental consent laws, parental notice laws, informed consent laws, and waiting periods, among other regulations. Those laws, of course, may have the effect of delaying an abortion. Indeed, parental consent laws in practice can occasion real-world delays of several weeks for the minor to decide whether to seek her parents’ consent and then either to obtain that consent or instead to seek a judicial bypass. Still, the Supreme Court has upheld those laws, over vociferous dissents.”[9]

More ominous, however, was his implicit disagreement with the right to abortion itself: “It is undoubtedly the case that many Americans—including many Justices and judges—disagree with one or another aspect of the Supreme Court’s jurisprudence concerning abortion. From one perspective, some disagree with cases that allow the Government to refuse to fund abortions and that allow the Government to impose regulations such as parental consent, informed consent, and waiting periods. That was certainly the position of Justices Brennan, Marshall, and Blackmun in many cases. From the other perspective, some disagree with cases holding that the U.S. Constitution provides a right to an abortion.”[10]

There are already two cases before appellate courts that could give the Supreme Court an opportunity to limit abortion access as soon as June 2019.

Preterm-Cleveland v. Himes[11], currently before the United States Court of Appeals for the Sixth Circuit, involves Ohio House Bill 214, which criminalizes abortions when the reason given is a fetal diagnosis of Down syndrome. The District Court blocked the law’s implementation as the litigation proceeds.

As should be clear, the law undermines the relationship between doctors and patients, making it harder for a woman to have an honest and informed conversation with her health care provider. Plaintiffs argue that banning a woman from having an abortion because of a fetal diagnosis is unconstitutional, as it does nothing to address discrimination against people with disabilities or improve access to health care, education, or other services. Of course, insofar as H.B. 214 bans a class of abortions outright prior to viability, it amounts to a previability abortion ban in flat contradiction of Supreme Court precedent.[12]

In Planned Parenthood Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health,[13]the Seventh Circuit struck down an Indiana law that prohibits doctors from performing abortions if the patient is seeking the procedure because of the fetus’s sex, race, disability or potential diagnosis of disability. The law, signed by then-Gov. Mike Pence, also included other provisions such as a mandate that miscarried or aborted fetuses be buried or cremated and was so restrictive that it disturbed even Republicans in the state Legislature. The decision was by a divided court, with Judge Manion reluctantly concurring in the portion of the judgment “invalidating the nondiscrimination and disclosure provisions” and “dissent[ing] from the portion of the judgment invalidating the fetal remains provision.”[14]He lamented that:

Indiana and the amici States persuasively argue that the right identified in Roe and Casey is only the right to decide whether to have a child, not the right to decide which child to have. This argument makes sense. After all, the women for whom the nondiscrimination provisions present an obstacle have already determined that they want a child. The nondiscrimination provisions simply prohibit those women from targeting their unborn child because of later-discovered immutable human characteristics. Indiana and the amici States have made a noble effort to defend a statute that should need no defense. But the fact remains that Casey has plainly established an absolute right to have an abortion before viability. The joint opinion says that nothing can stand between a woman and her choice of abortion before viability. See, e.g., Casey, 505 U.S. at 870, 112 S.Ct. 2791 (“We conclude the line should be drawn at viability so that before that time the woman has a right to choose to terminate her pregnancy.”); id. at 874, 112 S.Ct. 2791 (“[T]he right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.”); id. at 877, 112 S.Ct. 2791 (“What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.”). While States may legislate to encourage informed consent or maternal health, legislation that does too well at convincing women to choose life has been held invalid. See id. at 992, 112 S.Ct. 2791 (Scalia, J., concurring in the judgment in part and dissenting in part).

As an intermediate appellate court, we are bound to follow Casey, and so I must agree with the court that the nondiscrimination provisions are invalid. Yet this case reveals two major flaws of the Casey analysis that combine to produce such an absurd result—absurd even relative to other abortion cases. First, Casey treats abortion as a super-right, more sacrosanct even than the enumerated rights in the Bill of Rights. And second, while Casey jettisoned Roe ’s strict-scrutiny test for all first-trimester abortion regulation, it replaced strict scrutiny with an effects-based test that is actually more difficult to satisfy in many cases.

Further, if we applied strict scrutiny in this case, Indiana could prevail. The nondiscrimination provisions are narrowly tailored to target invidious discrimination against people whom nobody would deny would be members of protected classes were they allowed to be born. Surely, Indiana has a compelling interest in attempting to prevent this type of private eugenics. And the prohibitions would not affect the vast majority of women who choose to have an abortion without respect to the race, sex, or disability of the unborn child.[15]

He also noted that “[o]ther states have followed Indiana’s lead, so this particular issue is not going away. . . . [T]he Utah House of Representatives recently passed a similar bill by a 54-17 vote this past February. Ben Lockhart, Committee Likely to Prevent Senate Hearing on Bill Barring Down Syndrome Abortions, Sponsor Says , Deseret News, Mar. 7, 2018. . .

There can be no doubt that “settled precedent” holds unequivocally that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” [16]There is no requirement that a woman give a reason for doing so. As Chief Judge Diane Wood put it in concurring the denial of rehearing en banc, “I expect that any woman would experience an undue burden on her right to have a pre-viability abortion if state law required her to check herself into a mental hospital for a week after the procedure was complete.”[17]

The petition for certiorari is clearly intended to undermine the “settled precedent.” It argues that the fetal disposition provision simply “expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus.”[18]  As to the “non-discrimination provision,” it implicitly seeks to overturn the core of the Supreme Court’s abortion precedents, arguing, “on the other hand, is a qualitatively new type of abortion statute that responds to new technological developments allowing women to make a choice not contemplated at the time ofRoe v. Wade, 410 U.S. 113 (1973), or Planned Parenthood of Southeastern Pennsylvania

  1. Casey, 505 U.S. 833 (1992): the choice of which child to bear.”[19]

Accepting this argument, effectively requiring an individual to give a reason for obtaining an abortion would be the first step in overruling Roe and its progeny. Viability would no longer be the touchstone.

Chipping away at precedent in this fashion leads to death by the proverbial thousand cuts. It is well demonstrated by last term’s decision in  Janus v. AFSCME[20], where, in overruling an earlier settled precedent, the Court ruled that the prior decision had been criticized as “something of an anomaly,” and refusing to follow it “where it does not squarely control . . . while leaving for another day the question whether . . . [it] should be overruled.”

This approach, I fear, is one that would be consistent with the approach suggested in then Judge Kavanaugh’s dissent in  Garza v. Hargan[21].

The practice of abortion has been common throughout history.[22]  Decisions involving abortion restrictions should follow history, logic, and the basic personal rights of women and reaffirm that the determination to have an abortion is a personal choice.

[1]. 410 U.S. 113 (1973),

[2].  Sheryl Gay Stolberg, Roe Is ‘Settled Law,’ Kavanaugh Tells Collins. Democrats Aren’t Moved, N.Y. Times, Aug. 21, 2018.

[3]. Ibid.

[4]. Available at https://int.nyt.com/data/documenthelper/269-kavanaugh-email-re-whether-roe/e6dbbda94dd204fe02af/optimized/full.pdf#page=1

[5]. SeeJanus v. AFSCME,  585 U.S. ___ (2018), overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977); South Dakota v. Wayfair Inc., 585 U.S. ____(2018) overruling National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967) and Quill Corp. v. North Dakota, 504 U. S. 298 (1992).

[6]. Bob Woodward, Scott Armstrong, The Brethren: Inside the Supreme Court, 190.

[7]. 874 F.3d 735 (D.C. Cir.) (en banc), vacated 584 U.S. ___ (2017)

[8]. Id.at 752.

[9]. Id. at 755.

[10]. Id. at 756.

[11]. 294 F.Supp.3d 746 (S.D. Ohio 2018).

[12].  See Marc Spindelman, On the Constitutionality of Ohio’s “Down

Syndrome Abortion Ban,” 79 Ohio State Law Journal: Furthermore 19, 30 (2018).

[13]. 888 F.3d 300 (7th Cir. 2018), rehearing en banc denied, pet. for certiorari filed no. 18-483.

[14]. Id.at 310.

[15]. Id. at 311.

[16].  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992).

[17]. __F.3d__, order dated June 25, 2018.

[18]. Petition for certiorari at 14.

[19].  Id.(emphasis in original)

[20]. 585 U.S. ___ (2018)

[21]. 874 F.3d 735 (D.C. Cir.) (en banc), vacated 584 U.S. ___ (2017)

[22]See N.E.H. HULL & PETER C. HOFFER, ROE V. WADE:  THE ABORTION RIGHTS CONTROVERSY IN AMERICAN HISTORY 12 (2001).