The Future of Reproductive Rights Under Brett Kavanaugh

By: Olivia Lyman

Trump campaigned with a promise to conservatives that he would nominate to the Supreme Court a justice willing to overturn Roe v. Wade, the landmark decision that established the constitutional right to abortion in 1973. Trump is fulfilling that promise with the nomination of Judge Brett Kavanaugh to the Supreme Court. Kavanaugh’s track record on reproductive rights makes clear that if confirmed by the Senate, he will carry out Trump’s assault on women’s health for decades to come. Here’s why:

Exhibit A: Last year in Garza v. Hargan, Kavanaugh joined an opinion that would have allowed the Trump administration to further delay a young immigrant woman from having an abortion she wanted. In fact, Kavanaugh would have allowed the federal government to delay her time-sensitive care past the point when she could legally access abortion in the particular state. The reality is that one in four women in the United States (23.7%) will have an abortion by age 45. Since 1973, Roe has  provided women with protection against government  control of their reproductive lives. Kavanaugh’s pro-life agenda could severely undermine abortion rights for millions of Americans across the country.

Exhibit B: In Priests for Life v. Department of Health and Human Services, regarding employers’ requirements to provide birth control coverage to employees, Kavanaugh dissented from the decision to uphold the requirements of the contraceptive mandate of the Affordable Care Act (ACA). In this case, Kavanaugh sided with employers who opposed providing birth control for religious reasons, even going as far as saying that the form that employers would have to file in order to seek a religious exemption from the mandate was too burdensome. An estimated 62.4 million women have access to birth control with no out-of-pocket costs. With Kavanaugh, the Supreme Court could overturn ACA’s current mandate, jeopardizing access to birth control for millions of women for years to come.

Exhibit C: Justice Kennedy had played a pivotal role in Whole Woman’s Health, a case reaffirming women’s constitutional right to abortion. Based on these previous hearings and court cases, such as Garza v. Hargan, Priests for Life v. HHS, it is clear that Kavanaugh will not play this role. Specifically in Priest for Life v. HHS, Kavanaugh, siding with religion over a woman’s right to access contraceptive services, stated, “The essential principle is crystal clear: When the government forces someone to take an action contrary to his or her sincere religious belief, the Government has substantially burdened the individuals exercise of religion. And so it is in this case.” With his track record of arguing against access to abortion, birth control and health care, Kavanaugh will tilt the Supreme Court against reproductive rights.

Two-thirds (67%) of voters across the political spectrum say that it is important to them personally that a new Supreme Court justice rule to uphold women’s constitutional rights, including abortion. If Roe were overturned, abortion would dominate state politics and state elections across the country for the next several years. Seventeen states have laws that could be used to restrict the right to legal abortion if Roe is overturned, and Louisiana, Mississippi, North Dakota and South Dakota are all prepared with trigger laws that would automatically ban abortion within those states.

Senators and the American people should not settle until Kavanaugh says explicitly whether or not he will uphold the precedents protecting the liberty of individuals’ to make personal decisions about their families, their bodies, and their medical care. Kavanaugh must declare whether or not he believes the Constitution protects the individual right of all people to make personal decisions about their bodies and relationships, including the right to use contraception and to have an abortion. It is our responsibility to stand up, not just for women, but everyone. Call your senators at (202)-224-3121 or attend a town hall meeting while your senators are back in their home state for recess during the week of August 6.

You can also participate in a #SaveSCOTUS event near you or join in the upcoming United for Justice Day of Action on August 26, non-coincidently, Women’s Equality Day. All over the country, individuals are mobilizing to say NO to Kavanaugh and to contribute in the fight to protect human rights for all vulnerable populations everywhere. If you don’t see an event in your area, sign up to host one!