Through a lifetime appointment, Supreme Court Justice Brett Kavanaugh has the potential to affect U.S. law for decades to come. With Kavanaugh’s confirmation and diving into his third week as a Supreme Court Justice, questions have been raised about what this could mean for the future of reproductive rights.
Kavanaugh has replaced conservative Justice Anthony Kennedy, who retired from the court this past summer. Kennedy was a swing vote in favor of Roe v. Wade, a landmark case that legalized abortion on a federal level.
Dr. Betha Coston is a Virginia Commonwealth University professor for the Department of Gender, Sexuality and Women’s Studies. In an email, Dr. Coston stated that Kavanaugh’s identification as a political conservative will have a profound effect on his future opinions as a Supreme Court Justice.
“Every Supreme Court judge has impacted the balance of power in some way,” Dr. Coston said. “Although they are required to be impartial while serving, they are still human beings who have been socialized into their belief systems prior to the Supreme Court.”
Dr. Coston said Kavanaugh’s confirmation has beget “legitimate and real fears about the future of reproductive rights.”
In 2017, Kavanaugh defended a dissenting opinion when the D.C. Circuit court ruled in favor of a minor attempting to obtain an abortion.
In this case, a 17-year-old minor illegally entered the U.S., unaccompanied. Upon arrival, she was held in a federal detention center. While detained, she elected to end her pregnancy, but her request was vetoed by the federal government.
Kavanaugh stated that the majority opinion to grant the abortion was “radically inconsistent” with precedent, and maintained the government has “permissible interest in favoring fetal life, protecting the best interests of a minor, and not facilitating abortion.”
In addition, Kavanaugh voiced his concern that the court’s decision would precipitate “a new right for unlawful immigrant minors” to “obtain immediate abortion on demand.”
Within his dissenting opinion, Kavanaugh characterized Roe v. Wade as precedent, which must be followed.
In a 2003 memo, Kavanaugh stated that although Roe v. Wade was “important,” the Supreme Court “can always overrule its precedent.”
In a CNN article, Clare Foran and Joan Biskupic wrote that Kavanaugh’s past writings indicates he may permit the government to place greater restrictions on contraception and abortion access.
“Overall, his testimony reinforced his past writings suggesting he would permit the government to more strictly regulate abortion,” Foran and Biskupic wrote. “For example, with additional requirements that could delay the procedure, or stiffer rules for physicians who would perform it.”
The Supreme Court has had a historically profound effect on the advancement or retrogression of civil rights law.
Coston urges individuals to remember that it would be “naïve” to depend on the Supreme Court to uphold the rights of marginalized society members.
“Those rights only come alive when we organize, protest, demonstrate, strike, boycott, rebel and violate the law in order to uphold and restore justice,” Dr. Coston stated. “In this way, Kavanaugh’s confirmation is a direct call to action; a call to turn our despair into radical, critical, intersectional social change.”
