Kavanaugh's Dissent In Louisiana's Abortion Case Means Trouble For Roe v. Wade

Photo: Andrew Harrer/Bloomberg/Getty Images.
In a 5-4 vote, the U.S. Supreme Court blocked a draconian abortion law in Louisiana nearly identical to the legislation at the heart of Whole Woman’s Health v. Hellerstedt, a major reproductive rights case decided by the court in 2016.
Chief Justice John Roberts sided with the liberal wing of the bench on June Medical Services v. Gee because the 2014 law — which like Texas' HB2 required abortion providers to have admitting privileges at nearby hospitals — placed an undue burden on women seeking to terminate their pregnancies. For Roberts, it was clear: The Whole Woman's precedent means Louisiana's legislation is unconstitutional, unless the court overturns that decision. But Associate Justice Brett Kavanaugh, who once argued Roe v. Wade is not settled law, had other ideas.
Advertisement
Though conservative Justices Clarence Thomas, Samuel Alito Jr., and Neil Gorsuch voted to allow the Lousiana law to take effect, Kavanaugh was the only one to write a dissent in which he completely disregarded the two-year-old precedent. In his opinion, Kavanaugh made it seem like abortion providers didn't really try to obtain hospital privileges as outlined by the Louisiana government. (Again, not that it matters, since the Supreme Court has already ruled this requirement is medically unnecessary and doesn't benefit patients.) He also ignored that if the law went into effect, the number of abortion clinics serving women in Louisiana could go down from five to just one — effectively banning thousands of people across the state from having access to this type of care.
While the court's decision Thursday was a win for abortion rights, Kavanaugh's opinion spells trouble for Roe and reproductive care in the country. (We wonder whether Sen. Susan Collins, who voted to confirm him, still feels "vindicated" by his decisions on cases related to reproductive rights.) More states are likely to enact brutally anti-abortion legislation, which means more legal challenges are likely to make their way to the Supreme Court and its conservative majority. In the past year alone, there's been an onslaught of unconstitutional bills either introduced in or passed by state legislatures: Kentucky proposed to ban abortion as soon as a fetal heartbeat is detected, i.e. around six weeks of gestation; similar legislation was vetoed in Ohio and blocked by the courts in Iowa. Mississippi and Louisiana tried to ban abortion at 15 weeks, before being stopped by the courts. Legislation introduced in Oklahoma would make abortion punishable by life in prison; in Ohio, by the death penalty. And that's without taking into account other issues such as waiting periods, limits on abortion medication, and the rise of anti-choice pregnancy centers.
As more legal challenges appear before the bench, Kavanaugh is likely to recommend procedural answers that might seem moderate but in reality allow anti-abortion zealots to continue to chip away at abortion rights in the country. That's what his record on reproductive rights — specifically, the case where the Trump administration tried to prevent an undocumented teenager from terminating her pregnancy — has shown. In his dissent, Kavanaugh argued for continuing to block the teen from obtaining abortion care while she sought out a sponsor that could remove her from government custody. While that might seem like a moderate compromise, he willfully glossed over the facts of the case: The teen was 16-weeks pregnant; Texas, where she was detained, bans abortions after 20 weeks; and securing a sponsor is a process that takes months or years. His dissent on June Medical Services Thursday night applied the same type of scheming and sent a loud message to anti-choice lawmakers: Regulating abortion to the point where it's impossible for women to access this type of care is fair game for the court's most junior member. If Kavanaugh is willing to ignore precedent that is just two years old, why not also ignore a 1973 decision such as Roe?
Advocates understand this, praising the Supreme Court decision Thursday while cautioning the fight over abortion rights in the U.S. is long from over. "Amidst relentless attacks from anti-abortion politicians, the Supreme Court rightly stopped a blatantly unconstitutional law. The Louisiana law would shut down clinics across the state and is identical to a Texas law the Court struck down less than three years ago. It’s shameful that Louisiana politicians and anti-abortion judges let it go this far," Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement provided to Refinery29. "The ability to make personal decisions about our health is being targeted at every level of our government, including by the president earlier this week. We won’t stop until everyone in Louisiana and across the country, especially those who already face barriers to care, has access to safe and legal abortion."
Advertisement

More from US News