In 1973, the Supreme Court held in Roe v Wade that women have a right to obtain an abortion, as part of a constitutional right to privacy, with the possibility for regulations subject to differing levels of state interest dependent on how far along the pregnancy was. In 1992, the Supreme Court upheld this right in Planned Parenthood v Casey, with certain revisions to what regulations may be constitutionally permissible, on the basis of the viability of the fetus. This case has been standing precedent with regards to abortion for over 20 years, with Justice Kennedy joining the slim 5-4 majority in upholding Roe v Wade.
Now, Judge Brett Kavanaugh has been nominated to replace Justice Kennedy on the Supreme Court. His nomination has the potential to overturn Planned Parenthood v Casey and return the legislative authority over abortion to the states. Pro-life groups have supported him, while pro-choice groups like the ACLU and NARAL have opposed him. President Trump has vowed to nominate Supreme Court Justices who would overturn Roe v Wade, but the specifics of Brett Kavanaugh’s jurisprudence on this issue is thin.
Judge Kavanaugh has only ever ruled on abortion once, in a recent case involving a detained, unaccompanied, 17-year-old illegal immigrant. Referred to in court documents as “Jane Doe,” the girl was prohibited from leaving the detention center for the purposes of getting an abortion. This is due to the practice that illegal immigrant minors must be placed with a sponsor, usually a friend or family member, before being allowed to leave the detention center. She sued, with the help of the ACLU, and was allowed to obtain an abortion without first being granted a sponsor, after a 6-3 en banc decision from the DC Circuit Court.
Judge Kavanaugh dissented from this opinion. In his dissent, he acknowledges the Supreme Court precedent holding the existence of a right to obtain an abortion, but maintains that the restrictions on this particular case should not be considered an undue burden, under the precedent of Planned Parenthood v Casey. Specifically, he cited a list of accepted restrictions on abortion, such as parental notice laws and waiting periods, which “may have the effect of delaying an abortion.”
The significance of this case is not in Judge Kavanaugh’s particular opinion of Roe v Wade and Planned Parenthood v Casey, as he correctly acknowledged, “It is undoubtedly the case that many Americans –including many Justices and judges – disagree with one or another aspect of the Supreme Court’s abortion jurisprudence. […] As a lower court, our job is to follow the law as it is, not as we might wish it to be.” Instead, this case gives a slight insight into Kavanaugh’s understanding of what barriers to get an abortion may be considered an “undue burden” under that very precedent, alluding to a more expansive view, than those of his colleagues, of the government’s powers with regards to abortion. Questions as to Kavanaugh’s opinion of Roe v Wade itself can only potentially be answered by statements outside his prior jurisprudence.
During Brett Kavanaugh’s confirmation hearing for the DC Circuit Court of Appeals, he was questioned on Roe v Wade by Senator Schumer, but declined to give his personal opinion. Instead, he said, “if confirmed to the DC Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It has been decided by the Supreme Court.” This is a common response for any judicial nominee to a lower court, as all Supreme Court precedent is considered to be binding, and may only be overturned by the Supreme Court itself.
Possibly the most convincing evidence of Kavanaugh’s potential opinions negating or restricting the idea of a constitutional right to get an abortion comes from a speech he gave last year on his “first judicial hero” William Rehnquist. In this, he praised Rehnquist for his dissent in Roe v Wade, saying “it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
It is important to note, that even if Kavanaugh were willing to vote to overturn Planned Parenthood v Casey, that does not assure that the two cases would actually be overturned. Of the current members of the Supreme Court, Clarence Thomas is the only Justice who will remain on the court who voted in Planned Parenthood v Casey. There is still the question as to how Justices Gorsuch, Alito, and Roberts may rule in such a case. Specifically, Justice Roberts has been very deferential to precedent. There is a possibility that he would be reluctant to overturn Planned Parenthood v Casey, given its decades as precedent, and its varying reliance interests. Additionally, there is question as to whether such a case would even reach the Supreme Court. Overall, it seems as though prior protections of the ability to get an abortion may be restricted with Kavanaugh on the court, although the extent remains unclear.