Hearing Recap: Judge Kavanaugh’s Testimony Confirms Hostile Record and Philosophy on Reproductive Rights

Even though he discussed other cases in detail, Judge Kavanaugh refused to answer whether Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and Whole Woman’s Health v. Hellerstedt (2016) were correctly decided.  

Judge Kavanaugh merely stated to the Senate Judiciary Committee that he views Roe and Casey as “precedent” and “settled law.”  But this is simply describing the history of Supreme Court rulings on abortion rights – not any reassurance of whether he would ultimately uphold this precedent.  

These assertions are also undermined by a 2003 email that he sent while working on judicial nominations in the Bush White House, in which he wrote that not all legal scholars consider Roe to be “settled law” since the “Court can always overrule its precedent, and three current Justices on the Court would do so.” He was referring to Chief Justice Rehnquist and Justices Scalia and Thomas, who had ruled that Roe was wrongly decided and should be overturned. 

Judge Kavanaugh was asked several times to explain his reasoning in his 2017 dissenting opinion in Garza v. Hargan, a case involving an undocumented immigrant minor (known as “Jane Doe”) who was trying to access an abortion. He would have allowed the government to block Jane Doe from accessing an abortion and continue to delay her while the government sought a family-member sponsor, which it had already failed to do for nearly six weeks.  

He told the Senate Judiciary Committee that he applied precedent, including the Supreme Court’s precedents on parental consent. However, Jane Doe had already obtained a state court order deeming her capable of choosing to have an abortion and was constitutionally entitled under controlling Supreme Court precedent to have the procedure without further obstruction.  

He also failed to cite or apply the Supreme Court’s most recent abortion rights case, Whole Woman’s Health v. Hellerstedt. That ruling necessitated that the court weigh the potential harms to Jane stemming from a further delay against the purported benefits of the delay. 

Judge Kavanaugh also initially declined to answer questions about whether he agreed with two Supreme Court cases that recognized a constitutional right to access contraception, Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). When he finally assented, Judge Kavanaugh limited his agreement to Justice White’s concurring opinion in Griswold which was grounded in a limited right of marital privacy. Indeed, Justice White found the government’s goal of deterring “promiscuous or illicit sexual relationships” to be “concededly a permissible and legitimate government goal.”  

Judge Kavanaugh was also asked at least twice about his dissenting opinion in Priests for Life v. Health &amp, Human Services. In this case, non-profit employers with religious objections to the Affordable Care Act’s contraceptive coverage benefit challenged the accommodation granted to such employers.  The accommodation enables employers to opt out of providing coverage by filling out a two-page form while preserving employees’ access to contraception directly from the health insurer.  

Judge Kavanaugh said that the contraceptive accommodation was “quite clearly” a substantial burden on the religiously-affiliated employers’ religious exercise. He described the case as a challenge to the two-page form that the employers believed “would make them complicit in the provision of the abortion-inducing drugs that they . . . – as a religious matter, objected to.”  

Judge Kavanaugh’s use of the factually incorrect term “abortion-inducing drugs” to refer to FDA-approved contraception in his testimony—language he adopted from the objecting employers’ inaccurate factual claim—is consistent with the high degree of deference he gave to the employers in his dissent.  

During his testimony, Judge Kavanaugh also said that his finding of a substantial burden in Priests for Life was based on the Burwell v. Hobby Lobby (2014) precedent.  However, his opinion extended Hobby Lobby, it did not merely apply it. In Hobby Lobby, for-profit employers would have been required to provide contraception coverage without being afforded an accommodation. The Supreme Court held that the accommodation—filling out the two-page form—was an alternative that could be made available to for-profit employers. The non-profit employers in Priests for Life challenged the accommodation itself, and Judge Kavanaugh would have held it violated their religious liberty rights.  

In his testimony, Judge Kavanaugh argued that the Affordable Care Act’s contraceptive coverage accommodation (which required employers to fill out a two-page form) was “quite clearly” a substantial burden on the religiously-affiliated employers’ religious exercise.  In contrast, his dissenting opinion in Garza, which held that forcing a young undocumented woman to submit to a series of government-imposed hurdles that blocked and could have delayed her abortion past the legal limit in Texas, did not create an undue burden. 

Judge Kavanaugh repeated his praise for a narrow, backward-looking approach to defining the scope of individual liberty under the Constitution, citing Justice Rehnquist’s application of a standard limiting constitutionally-protected liberties to only those “deeply rooted in the Nation’s history and tradition.”