Late Thursday night, abortion rights narrowly escaped a blow, and in his dissent from the order, Brett Kavanaugh confirmed your worst suspicions. While pretending to be reasonable and evenhanded, he would have made abortion all but impossible to access.
The Supreme Court was asked to temporarily block a Louisiana law requiring admitting privileges at local hospitals for abortion providers that would have shut down most clinics in the state. Thanks to a surprise defection from Chief Justice John Roberts, who joined the Democratic appointees, the clinics stay open for now — at least till the case gets back to the Supreme Court in full. Kavanaugh chose to dissent, seemingly innocuously. “The case largely turns on the intensely factual question whether the three doctors … can obtain admitting privileges,” he wrote. He proposed waiting and seeing “without disturbing the status quo or causing harm to the parties or the affected women, and without this Court’s further involvement at this time.”
That managed to persuade the New York Times that Kavanaugh had taken “a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.” But Kavanaugh was being disingenuous. He ignored the fact that a lower court had already found that doctors couldn’t get the privileges, not to mention the court’s own precedent from 2016 that such laws must fall not just because they burden women, but because they didn’t make abortion any safer.
In 2016, the court threw out a nearly identical Texas law, also passed in the name of protecting women. As everybody expected would happen, it led to many clinics shutting down, effectively banning abortion for the women who depended on them unless they had the means to travel for hours and hours, including out of state. A majority of justices ruled in that case, known as Whole Woman’s Health, that states can’t just make up medical reasons to make abortions harder to access. They told judges considering future laws to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The Texas law failed that test; as RBG put it in her separate opinion “it is beyond rational belief that [the law] could genuinely protect the health of women.”
So why are we even having this conversation again? There’s only one reason why we’re trapped in abortion Groundhog Day, which is Kavanaugh’s very presence on the Court. When he replaced Justice Anthony Kennedy, who voted to strike down the Texas law, anti-abortion appeals court judges, egged on by legislators and activists, decided to try their luck. The Fifth Circuit Court of Appeals claimed unconvincingly that the facts are “remarkably different” from the Texas case. Not really, unless you count the composition of the court.
It’s easy to forget that before Brett Kavanaugh was all blubbering fury and offended entitlement, he was nice-guy Brett, hirer of women and people of color, coacher of basketball. (He’s still at it, despite his lament at the hearings.) His dissent attempts to have it both ways: I’m a reasonable guy, not like you’ve heard. But the result is radical, and it’s not the first time.
The only major abortion case Kavanaugh had ruled on until now, as a judge on the D.C. circuit, was that of an undocumented minor known as Jane Doe who had jumped through every hoop Texas had forced on her but was still being refused access out of detention to an abortion clinic. Kavanaugh seemingly wanted to split the difference: He claimed he wasn’t denying Jane an abortion, just that more waiting time was required to find a sponsor to help Jane make her choice. But the hunt for a sponsor had already proved fruitless, even as the legal machinations that were steadily pushing her past Texas’s legal abortion limit. Kavanaugh’s kicking the can down the road would have denied her choice without him taking responsibility for it. It’s a form of judicial gaslighting.
The gambit of asking for more facts in bad faith evokes nothing more than the internet trope of sea lioning, which Know Your Meme defines as “intrusive attempts at engaging an unwilling debate opponent by feigning civility and incessantly requesting evidence to back up their claims.” That’s essentially what Kavanaugh is asking for, politely demanding more information while effectively stacking the deck. But when it comes to who Kavanaugh is, he’s given us all the facts we need.