Opinion

Opinion | Nancy Gertner

Brett Kavanaugh’s record makes his antiabortion stance clear

Demonstrators at a rally in support of abortion rights in New York in July.
Marian Carrasquero/New York Times
Demonstrators at a rally in support of abortion rights in New York in July.

IT WOULD BE EASY for Massachusetts citizens to feel complacent about the security of their reproductive rights. A 1980 decision by the Supreme Judicial Court guarantees reproductive rights under the Massachusetts Constitution, and recently passed legislation (dubbed the NASTY Women Act) repealed several decades-old Massachusetts antiabortion laws. But Massachusetts should still care about what would happen if the Supreme Court — with a new Justice Kavanaugh — overturns Roe v. Wade. For women across the country, it would mean a return to the days when wealthy women in states that prohibit abortion could travel to a state where it was legal — an option not available for poor women. Massachusetts could become a destination state for women seeking abortions.

Make no mistake — Kavanaugh will vote to overturn Roe. He may not say so directly during the confirmation process, but his writings and his legal opinions speak clearly enough, if you can read between the lines of judicial code.

For example: In a 2017 speech, Kavanaugh praised Justice Rehnquist’s dissent in Roe, citing Rehnquist’s antipathy to “freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” Rehnquist and Kavanaugh agree that the Constitution’s protections are not just limited to those rights specifically mentioned in the Bill of Rights. But rights that are not specifically mentioned must be “rooted in the traditions and conscience of our people.” Since many states historically prohibited abortions, Rehnquist concluded, abortion did not fit the bill.

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If reproductive rights did not enjoy a long tradition in the United States, it is because they emerged as part and parcel of the modern women’s rights movement. In the 18th century, when the Bill of Rights was drafted, women could not vote; they had no sexual freedom, in or out of marriage; there was no such thing as marital rape. If the standard by which Kavanaugh and Rehnquist determine which rights should be enforced is their roots in tradition, women everywhere have a lot to worry about. And not only women. Roe was based on the idea that there’s a right of personal choice in matters of marriage and family life, the same legal argument underlying decisions to legalize birth control (Griswold), interracial marriage (Loving), and recently, gay marriage (Obergefell). Would Kavanaugh seek to unravel this entire skein of rights because they reflect modern sensibilities rather than archaic — and prejudiced — ones?

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The best indication of what Kavanaugh will do as a justice, however, is not what he has said, but what he has done. Take the recent case of a 17-year-old undocumented immigrant who came to the United States to escape physical abuse; when in custody, she discovered she was pregnant and wanted an abortion. Because she was a minor, without parents to consent, Texas law required that she be appointed a guardian ad litem and be given mandatory counseling. The judge in the case agreed she was sufficiently mature to make her own reproductive decisions. Since she was detained, she couldn’t get to the nearest medical facility on her own, but her guardian agreed to pay for the procedure and even to provide transportation. All the government had to do was approve her departure from detention.

They refused.

This case wasn’t just about abortion. It was also about medical treatment for women in federal custody. It was not enough that no federal money was involved, or that all of Texas’ legal hoops had been satisfied. The government wanted her to wait until she was released to the custody of an approved sponsor — which could take months. By the time the court ruled, she was at the end of her first trimester. Waiting any longer would mean a later-term abortion — more dangerous, if available at all — or a forced birth.

The migrant sued and won in the trial court. The government appealed, but the appeals court upheld the lower court’s decision. Kavanaugh, however, dissented. In his dissent, he acknowledged that the government could not challenge the migrant’s rights under Roe. And he conceded that the right to choose an abortion may not be “unduly burdened.” But as Slate’s Dahlia Litwick and Jed Shugerman wrote, “if holding onto a pregnant teen migrant until it’s too late for her to lawfully terminate her pregnancy isn’t an ‘undue burden’ on abortion, it’s hard to know what is.”

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So don’t bother to guess how Kavanaugh will answer, “Will you reverse Roe v. Wade?” We already know. And if we lose Roe, many more rights could follow.

Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.