By Jonathon Van Maren
Like many other pro-lifers, I’ve been waiting with bated breath to find out how Justice Brett Kavanaugh will rule on abortion-related cases in order to get some indication of how he might cast his vote on Roe v. Wade. Senator Susan Collins, one of the last remaining pro-choice Republicans, has been promising anyone who will listen that Kavanaugh assured her that he will not vote to overturn Roe, which seems like a strange thing for a judicial nominee to promise. (Based on her description of the conversations, it seems likely that Kavanaugh simply confirmed again, as he has publicly, that Roe is an established precedent, which is true but does not mean that it cannot be overturned.)
Back in December, it looked as if Collins might be telling the truth when Kavanaugh voted with the majority (6-3) to decline an appeal from Kansas and Louisiana over withholding tax dollars from Planned Parenthood. Pro-lifers are used to being disappointed by Supreme Court justices appointed by Republican presidents, but that doesn’t make the betrayals any less painful or infuriating.
I didn’t notice this story when it first broke last week, but there has been some encouraging news since then. Arwa Mahdawi, writing in The Guardian, stated that “Kavanaugh has made it clear he’s coming for Roe v. Wade,” noting that there are only three abortion clinics in Louisiana, but that Kavanaugh dissented from a Supreme Court decision to block a Louisiana law that would have potentially reduced the number of clinics to one:
The US supreme court voted 5-4 to block a Louisiana law that would have dramatically reduced access to legal abortions in the state. Opponents of the law said it would have meant only one doctor would have been eligible to perform abortions in the entire state.
The law in question is called the Unsafe Abortion Protection Act…The statute requires doctors who provide abortions to have active admitting privileges at hospitals within 30 miles. Which may not sound like a big deal on the surface, but is a sneaky way of making it more expensive and difficult to access legal abortions. It’s an example of what is called a “Trap” (Targeted Regulation of Abortion Providers) law…It is alarming that the Louisiana law was blocked by so narrow a margin, as there is already clear precedent showing it is unconstitutional. The statue is nearly identical to a Texas law the supreme court struck down in 2016, ruling that requiring abortion providers to obtain hospital privileges is unduly burdensome and provides no medical benefit to women.
Also alarming is Brett Kavanaugh’s conduct in the case. While Chief Justice John Roberts, a conservative, joined the court’s liberals in putting a hold on the Louisiana law, Kavanaugh was not just in favour of the law, he wrote a dissent on his own behalf. This effectively argued that the law should go into effect as it wasn’t clear it would be unduly burdensome and we should just go ahead and see how it played out.
Kavanaugh’s dissent has been taken by many as a clear sign that he is intent on overturning Roe v Wade, the supreme court decision protecting access to abortions. Anger is now mounting towards Senator Susan Collins, who cast the decisive vote confirming Kavanaugh last year. When casting her vote Collins justified her decision by reassuring everyone she was sure Kavanaugh would not overturn Roe v Wade, because he had an unmatched reverence for precedent. The justice’s dissent has made very clear that is not the case.
Kavanaugh’s dissent obviously does not provide us with enough evidence to indicate which way he would vote on Roe, and abortion activists need to keep their followers in a state of panic to ensure that they don’t become apathetic. Chief Justice John Roberts has been a huge disappointment despite coming onto the court with probably the most pristine pro-life record of all the justices (I suspect that he will become the new Kennedy on the court, doling out wins and losses to each side in order to grant the court the appearance of being nonpartisan and above the political fray.) But this is certainly an encouraging sign, and does make me hopeful that Alexandra DeSanctis was right when she wrote in the National Review that Kavanaugh’s vote in December didn’t actually tell us anything about his judicial stance on abortion.
For anyone interested, my book on The Culture War, which analyzes the journey our culture has taken from the way it was to the way it is and examines the Sexual Revolution, hook-up culture, the rise of the porn plague, abortion, commodity culture, euthanasia, and the gay rights movement, is available for sale here.