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Mon Jul 9, 2018, 09:22 PM

How Brett Kavanaugh Will Gut Roe v. Wade


How Brett Kavanaugh Will Gut Roe v. Wade
Donald Trump’s Supreme Court nominee has shown us precisely how he’ll do it.
By Mark Joseph Stern
July 09, 20189:56 PM

President Donald Trump nominated Brett Kavanaugh to the United States Supreme Court on Monday night, ending feverish speculation over who would replace retiring Justice Anthony Kennedy and become the fifth vote to undo the bulk of Kennedy’s liberal legacy.

Kavanaugh is an obvious choice for Trump. A judge on the U.S. Court of Appeals for the District of Columbia Circuit, he has maintained staunchly conservative credentials without earning a reputation for being a bomb-thrower. Unless Republican Sen. Susan Collins grows a spine, which she won’t, he has a clear path to Senate confirmation. During his hearings, Kavanaugh will claim he cannot reveal his true feelings about Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to abortion access. But there is little doubt that Kavanaugh will gut Roe at the first opportunity. Indeed, he has already provided a road map that shows precisely how he’ll do it.

Kavanaugh was forced to confront the abortion question in 2017 after the Trump administration barred an undocumented minor, known as Jane Doe, from terminating an unwanted pregnancy. The American Civil Liberties Union sued on Doe’s behalf, and the dispute came before a three-judge panel at the D.C. Circuit. Kavanaugh was joined on the panel by Judge Karen L. Henderson, an arch-conservative, and Judge Patricia Millett, a moderate liberal. Doe, who was being held in a federally funded Texas shelter, had already obtained the necessary judicial bypass to get an abortion. But the Trump administration refused to let her see an abortion provider, instead sending her to an anti-abortion “crisis pregnancy center.”

The ACLU argued that the Trump administration was violating Doe’s constitutional rights. Under current Supreme Court precedent, the government may not place an “undue burden” on a woman’s access to abortion. And by preventing Doe from seeing an abortion provider, the ACLU asserted, the government had created such an undue burden. The Trump administration, by contrast, alleged that it had not substantially burdened Doe’s right to an abortion, because if she really wanted one she could just return to her home country. (In fact, abortion is outlawed in Doe’s country of origin.) The government also asserted that Doe had the option of finding a sponsor in the U.S. who would be willing to house her and permit her to terminate her pregnancy.


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