The Threat Is Real

Still wonder how Kavanaugh will rule on abortion? Look no further than his record in Texas

Brownsville attorney Rochelle Garza, who represented undocumented minor "Jane Doe" in her successful effort – over the objections of Brett Kavanaugh – to secure an abortion in Texas, testifies against the judge at his confirmation hearing last month. (Courtesy of C-Span)

Shortly following the Senate's confirmation of Brett Kavanaugh to the U.S. Supreme Court, a dozen activists – frustrated by the accession of a clear misogynist and potential sexual predator – flocked to the Lamar Bridge in protest. On Saturday, Oct. 6, as many enjoyed the Austin City Limits Festival nearby, the contingent of protesters formed a human chain that blocked Lamar Boulevard for several hours, ending in 14 arrests.

“the Kavanaugh confir­ma­tion ... could mean a complete devastation of access. We’re taking it one day at a time.” – Amanda Williams

One of the lead organizers, Banafsheh Madaninejad, feels no regret despite her arrest. "We were in shock and needed to do something drastic," said the Southwestern University professor. As an Iranian immigrant who lived through that county's 1979 revolution and patriarchal regimes, Madaninejad sees parallels to today's Amer­ica. "What's going on is appalling. It becomes clear the extent to which we are swimming in patriarchy."

Like many others, Madaninejad worries about the future of women's rights and health under the new Supreme Court, and specifically from Kavanaugh, and specifically in Texas. The Center for Reproductive Rights, which battles abortion restrictions across the country (including Texas' HB 2), for the first time opposed a Supreme Court nomination after a "careful and thorough" review of judicial opinions, speeches, and writings that were "fundamentally hostile to reproductive rights."

The group pointed to Kavanaugh's repeated praise of Justice William Rehn­quist's dissent in Roe v. Wade and Justice Antonin Scalia's in Planned Parenthood v. Casey, both rejecting a constitutional right to abortion. In Priests for Life v. U.S. HHS, Kavanaugh tried and failed to allow religious organizations to withhold required contraception coverage under the Affordable Care Act, even after the ACA rules were amended to address their concerns. (Kava­naugh is of course no fan of the ACA itself, which among other things has provided access to crucial maternal and reproductive care to millions of women.)

But perhaps the most damning evidence comes from the recent Texas case, Garza v. Hargan. When a young undocumented minor in federal custody (known as "Jane Doe" and represented by Brownsville attorney Rochelle Garza) was blocked several times from obtaining an abortion, it catalyzed a string of court hearings last year. As a D.C. Circuit Court judge, Kavanaugh twice held that barring Doe's access to abortion didn't impose an undue burden, and supported prolonging her pregnancy, arguing that doing otherwise would give immigrants the right to "immediate abortion on demand." Kava­naugh was ultimately overruled by the majority, in what he termed "a radical extension of the Supreme Court's abortion jurisprudence," and Doe got her abortion.

Kavanaugh's view of high-court precedent is disputed by the CRR and other advocates. "His opinion in that case not only failed to follow numerous Supreme Court decisions on abortion; on a more fundamental level, it said a young woman who had made a clear decision to choose abortion could be blocked week after week," said Julie Rikelman, CRR's litigation director. One of those precedents, Whole Woman's Health v. Hellerstedt, applied the "undue burden" standard to toss out Texas' attempt in HB 2 to functionally prohibit abortion in most of the state. Though that was the Supreme Court's most recent major ruling on abortion and on point to the Garza case, Kavanaugh didn't cite it whatsoever in his dissents. Less than a month after his court ruled in Garza, Kavanaugh was nominated to SCOTUS.

"We think there is a very real threat to abortion rights and we are deeply concerned," says Rikelman. "We'll continue to fight in the courts to make sure these rights are reaffirmed." Several key cases could reach the Supreme Court in the next year or two, including a Mississippi law that bans abortion at 15 weeks; a Louisiana law forcing abortion doctors to secure admitting privileges at a local hospital (also a provision of HB 2); and an Indiana law that bars abortion if the fetus might be disabled. Mean­while in Texas, the People's Lawsuit, filed earlier this year, challenges an expansive slew of abortion restrictions; however, that case is still in its early stages. It's more likely the court could consider the Texas law to ban the most common and safest method of second-trimester abortion, now at the doorstep of the 5th Circuit Court of Appeals.

Rikelman stresses that Roe doesn't need to be directly overturned for abortion access to be undermined; the court could chip away at the constitutional right by upholding restrictive state laws one by one – a strategy Texas knows all too well. Large swaths of the state now have few or no abortion clinics after a torrent of state laws crippled the network. Pro-choice advocates are gearing up for new attacks come Jan­uary and the next legislative session.

"We always anticipate things are going to get worse for abortion rights here in Texas, so on one hand it's business as usual," says Amanda Williams of the Lilith Fund, a nonprofit that funds abortion care. "But of course, the Kavanaugh confirmation is frightening and could mean a complete devastation of access. We're taking it one day at a time." Her group is strengthening its support network and infrastructure and amping up fundraising. Last month, Lilith funded 96 of about 500 hotline callers; overall last year, the group received 6,000 calls and were only able to provide funding (some $300,000) to a quarter of those. "We can only anticipate the need to keep growing," says Williams.

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Brett Kavanaugh, Banafsheh Madaninejad, Rochelle Garza, Julie Rikelman

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