Justice Brett Kavanaugh and the Future of Women’s Reproductive Rights

by | Jul 12, 2018

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About Stephanie Tai

Stephanie Tai is a PCLL graduate of the University of Hong Kong, and an LLB graduate of the London School of Economics and Political Science. She has a strong interest in human rights and criminal law, and will commence her pupillage in December 2018.


Stephanie Tai, “Justice Brett Kavanaugh and the Future of Women’s Reproductive Rights” (OxHRH Blog, 12 July 2018), <https://ohrh.law.ox.ac.uk/justice-brett-kavanaugh-and-the-future-of-womens-reproductive-rights> [date of access].

President Trump recently named Justice Brett Kavanaugh as his Supreme Court nominee. Although the nomination awaits confirmation from the Senate, an analysis of Justice Kavanaugh’s record suggests that he could be in favor of implementing a more lenient standard of review for restrictions on abortion, or more worryingly, be the decisive 5th vote the Supreme Court needs to overturn Roe v Wade.

The current framework of reproductive rights is governed by Roe v Wade and Planned Parenthood of Southeastern Pennsylvania v Casey (“Casey”). Roe v Wade recognizes a woman’s choice to have an abortion before viability without undue interference from the state. It acknowledges the constitutional protection of a woman’s right to terminate her pregnancy under the Fourteenth Amendment. In Casey, the Court decided that the “undue burden standard” should be adopted in assessing restrictions on abortion. Accordingly, a law constitutes an undue burden “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability” (Casey).

In his 2006 confirmation hearing to the D.C Circuit, Justice Kavanaugh declined to give an opinion on Roe v Wade. Upon being asked whether he would consider Roe v Wade to be an abomination, Justice Kavanaugh simply stated that he would “follow Roe v Wade faithfully and fully” given that it is “binding precedent” of the Supreme Court. When asked again to give his own opinion, Justice Kavanaugh stated that he would follow it as the case has been reaffirmed, and that he did not “think it would be appropriate…to give a personal view of the case”.

Despite repeatedly stating that he would follow Roe v Wade, Justice Kavanaugh’s refusal to give a personal opinion on Roe v Wade is alarming for the future of women’s reproductive rights. The fact that Justice Kavanaugh stated that he would respect Roe v Wade if appointed as a D.C Circuit judge is not reassuring and is mere reiteration of formality given that circus court judges are bound by precedents set by the Supreme Court under the doctrine of stare decisis. A liberal interpretation of Justice Kavanaugh’s refusal to give his personal opinion on Roe v Wade raises red flags. This is coupled with the fact that during the 2016 campaign, President Trump made it abundantly clear that he would appoint pro-life judges if given the chance.

Justice Kavanaugh’s appointment to the Supreme Court has three possible outcomes. It could potentially alter the future of women’s reproductive rights in two ways. The first way is to completely overturn Roe v Wade. The second more moderate method is to dilute the standard of review from the “undue burden standard” to the “rational basis review”. The “rational basis review” is a more relaxed standard of review in which the question is whether “any state of facts [may] reasonably…be conceived to justify” the law (McGowan v Maryland). If adopted, the Court will assume a more deferential stance as the State will only need to show that the legislation in question is reasonable and not arbitrary (Johnson v Robison). The third and least likely outcome is the continuation of the Roe v Wade status quo.

An analysis of Justice Kavanaugh’s dissent in Garza v Hargan (Garza), implies a conservative yet moderate stance on abortion. Justice Kavanaugh opined that forcing a 17-year-old unauthorized immigrant to wait a couple more weeks to carry out her abortion until she had a sponsor would not constitute an undue burden, despite the fact that at the time of the decision en banc, the sponsorship search had already been underway for 7 weeks. Given Garza, it is suggested that the most likely outcome if Justice Kavanaugh is confirmed is the adoption of a diluted standard of review.

Justice Brett Kavanaugh represents a potential threat to women’s reproductive rights. In awaiting the Senate’s confirmation, it is hoped that should Justice Kavanaugh be confirmed, the “undue burden” standard of review will not be diluted, or even yet, that Roe v Wade will not be explicitly overturned. As the Court stated in Casey, a “woman’s right to terminate her pregnancy before viability…is a rule of law and a component of liberty we cannot renounce”.

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