The mystery is over. A few weeks ago, with pomp and circumstance befitting reality television, President Trump revealed his nominee for the Supreme Court: Judge Brett Kavanaugh who currently sits on the D.C. Circuit Court of Appeals.
Women’s rights advocates are rightfully worried about the replacement of Justice Anthony Kennedy — who many view as a crucial swing vote on the Supreme Court. And yes, women should be deeply concerned and even outraged, but not because Kavanaugh’s record will be worse than Justice Kennedy’s on reproductive health and rights.
{mosads}Kennedy’s record on women rights is overstated at best. He often failed to exercise the principled judgment, leadership, and discretion needed to recognize the constitutional rights of women and girls. Just two weeks ago, he sided with a 5-4 majority to strike down a California law enacted to promote women’s health and protect them from fraud and deception at crisis pregnancy centers. His vote in that case — and concurring opinion — were fairly consistent with his thirty-year tenure on the Supreme Court.
Justice Kennedy authored the majority opinion in another decisive 5-4 opinion, upholding a Bush-era federal law to ban an abortion procedure in Gonzales v. Carhart, making a widely discredited claim that long-term mental health suffering can result from abortions.
And just look at his recent record: he joined the majority in handcuffing women’s rights to file suit under Title VII in Ledbetter v. Goodyear Tire & Rubber Co,. In another case, he voted to deny female litigants class action status to sue their employer for sex discrimination. And, in Burwell v. Hobby Lobby, he joined the 5-4 majority in undermining female employees’ access to contraception.
If Justice Kennedy seems a hero to some, it may be because the common denominator is so very low for the Supreme Court. Historically, the Court has shown hostility toward the fundamental rights of women. The Court sanctioned eugenics and forced sterilization against inmates of institutions.
In 1927, Justice Oliver Wendell Holmes famously ruled, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.” That case has never been overturned.
Today, the risks are great. Many fear Roe v. Wade will be overturned if Kavanaugh is confirmed — with four conservative male justices already positioned to do so, adding a fifth to the Court might seal the fate of women’s reproductive privacy rights.
In a recent abortion case, Garza v. Hargan, Kavanaugh issued a dissenting opinion stating that the majority was authorizing “immediate abortion on demand.” But as Judge Millet pointed out, “What new law?” Roe was handed down in 1973 and Bellotti v. Baird, which affirmed a minor’s right to terminate a pregnancy was decided in 1979.
The more important concern is not that Roe will be explicitly reversed, but that it will be rendered meaningless. Between 2010-2013 more anti-abortion and anti-contraception laws were proposed and enacted than in the 30 years prior.
These laws expanded waiting periods before a woman could end her pregnancy, banned the use of insurance to cover abortions, granted various legal statuses to embryos and fetuses, and forced women to undergo unnecessary vaginal ultrasounds—among other rules imposed on doctors and clinics.
Sadly, these types of tactics are not new; black Americans are quite familiar with such strategies. Voting rights, for example, are explicitly secured in the Constitution; no Justice would ever articulate that Black Americans should not be entitled to vote. And yet in some states — through voter suppression laws and radicalized gerrymandering — legislatures render it virtually impossible for Blacks to meaningfully cast a vote.
Just two weeks ago, the Supreme Court sided with Texas lawmakers in a high-profile gerrymandering decision. There is no good reason to expect that Supreme Court would not do the same with respect to female reproductive rights.
And yet, my concerns extend beyond abortion. The Trump administration has found its foothold in slashing programs essential to women’s health and lives. Title X does just that — providing access to contraception, STI screenings, breast cancer screenings and more for poor women and girls. George H.W. Bush shepherded that legislation through Congress and Richard Nixon signed it into law — now it too is on the chopping block.
The Trump administration has erected new rules granting businesses owners’ exemptions from contraception coverage based on “moral” objections, which is a new low for government. If cases based on these laws and regulations came before the Court, with Kavanaugh as a fifth vote, it is very likely a 5-4 majority would uphold them. And that should terrify us all.
Michele Goodwin is a professor of law at the University of California, Irvine