Brett Kavanaugh Could Decide Up to 13 Abortion-Related Cases in the Next Year
More than a dozen abortion rights cases in district courts could make it to the Supreme Court in time for a newly confirmed Justice Brett Kavanaugh to weigh in.
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Brett Kavanaugh could have the opportunity to rule on as many as 13 abortion-related cases in his first year on the Supreme Court bench if he’s confirmed following this week's hearings.
According to a document from Planned Parenthood, there are more than a dozen cases currently held up in federal appeals courts across the country, just one ruling away from making it to the Supreme Court. Any of these cases would provide a newly minted Justice Kavanaugh with the opportunity to rule on Roe v. Wade.
Kavanaugh has called the landmark 1973 abortion rights decision “settled law”—a line he’ll likely stick by when members of the Senate Judiciary Committee question him on Tuesday. But the former D.C.-circuit federal judge’s track record on abortion has reproductive health advocates certain of what will happen should Kavanaugh get the opportunity to rule on any one of the 13 cases.
“Kavanaugh’s record says it all: If given the chance, he would turn the balance of the Supreme Court against women’s constitutional right to abortion in this country,” Dawn Laguens, executive vice president of Planned Parenthood Action Fund, said in an August statement. “We are counting on the Senate to listen to their constituents’ stories, examine his record, and ultimately vote no on Brett Kavanaugh.”
Many of the cases Kavanaugh could rule on name Planned Parenthood as a plaintiff—like a Texas case challenging a state law banning a common second trimester abortion procedure currently awaiting argument and decision in the Fifth Circuit, and an Indiana case asking a federal judge in the Seventh Circuit to overturn a law implementing an 18-hour waiting period between an ultrasound and an abortion procedure for women in the state.
In Missouri, Eighth Circuit judges are approaching a decision on a legal challenge to state regulations that require abortion providers to have admitting privileges at local hospitals, a stipulation that could result in the closure of a number of clinics that just recently began providing abortions.
The Supreme Court heard a similar case— Whole Woman’s Health v. Hellerstedt—in 2016, after regulations requiring the same admitting privileges of abortion providers in Texas shuttered 19 of the state’s 41 clinics. The case asked Supreme Court justices to rule on Roe, and in a 5-3 vote, they decided to uphold it. But with both Kavanaugh and Neil Gorsuch on the bench, a ruling on nearly the same case could result in the opposite decision—and the repeal of Roe v. Wade.
In addition to the 13 cases explicitly about abortion, Planned Parenthood says Kavanaugh could also weigh in on 11 cases involving reproductive rights more broadly, including three cases challenging the Trump administration’s decision to roll back the Affordable Care Act’s mandate that employers provide insurance that covers employees’ birth control, and several more determining whether the administration can use the Department of Health and Human Services to push an abstinence-only agenda.
It’s possible Kavanaugh could hear none of these cases: In order to for a case to be brought before the Supreme Court bench, four out of nine justices must agree to hear it. Using this system, the Supreme Court ends up accepting just 80 of roughly 10,000 requests a year to rule on cases.
The Supreme Court’s rubric for deciding which cases to hear is somewhat opaque, but in some instances it can be for a reason as simple as the case aligning with justices’ interests. With two justices appointed by President Donald Trump on the bench, it’s possible that there will be a greater interest in hearing abortion-related cases, especially considering Trump’s campaign promise to only nominate pro-life justices who want to overturn Roe to the Supreme Court.
Reproductive rights advocates are steeling themselves for the worst.
"If confirmed, Kavanaugh could very well be the decisive vote Trump needs in the Supreme Court to give his concerted campaign to undermine civil liberties and civil rights long-term impact," American Civil Liberties Union Legal Director David Cole said in a statement following Kavanaugh’s July appointment.
"And in light of President Trump’s promise to appoint justices who would overturn Roe, this nomination could jeopardize the right to an abortion millions of women and families have relied on for more than four decades."