Justice Kavanaugh’s Misdirection Plays in the Mississippi Abortion Case

Posted in: Constitutional Law

During last week’s oral argument in Dobbs v. Jackson Women’s Health Organization, all eyes and ears were on Chief Justice John Roberts and the three Justices appointed by Donald Trump—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—because of the widespread belief that how they vote will determine whether abortion will continue to be a constitutional right. The Democratic appointees—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—will surely vote to retain the status quo. Meanwhile, the Court’s most conservative Justices—Clarence Thomas and Samuel Alito—have made plain their goal of overturning the right to abortion as soon as they have the votes.

So, what did we learn? I agree with the post-oral-argument assessment by Professor Mary Ziegler and others that at least three of the less extreme conservatives seem poised to join Justices Thomas and Alito in a judgment that either severely curtails or outright overrules Roe v. Wade and Planned Parenthood v. Casey sooner rather than later.

In the Dobbs argument, Chief Justice Roberts appeared to be seeking a middle ground—a way to uphold the Mississippi ban on most abortions after fifteen weeks’ gestation without completely abandoning a constitutional right to abortion. However, on this as on other issues, the Chief Justice may be unable to fashion a majority, because he now finds five Justices outflank him to the right. What about the three Trump appointees?

Justice Barrett appeared to suggest that no abortion right is necessary because pregnant women can avoid the burdens of parenthood by carrying their pregnancies to term and giving their babies up for adoption—a position that is unrealistic and at best callous. Moreover, even if adoption could be seen as a solution to the problem of forced parenthood, it is completely unresponsive to the burdens associated with compelled pregnancy and childbirth.

Justice Gorsuch asked few questions, and the ones he did ask he framed confusingly. He pressed the attorney for the clinic with a hypothetical question in which she was to apply “the undue burden standard prior to viability.” However, that standard already applies prior to viability. Under Casey and the subsequent cases, laws that regulate but do not ban pre-viability abortions are subject to the undue burden standard. As I explained on my blog last week, the Dobbs case therefore does not implicate the undue burden standard. Mississippi itself acknowledges that the case involves the question whether to modify the part of Roe that Casey and all other cases have retained: the rule that a state may not ban abortion before viability. Justice Gorsuch seemed to be suggesting that the viability line from Roe could be overruled and that even a pre-viability ban could be judged by the undue burden standard, but it’s hard to see why he would make such a suggestion; Casey held that a law that imposes a substantial obstacle to a pre-viability abortion is an undue burden; surely, a ban is a very substantial obstacle. In the end, then, Justice Gorsuch expressed only confusion and mild annoyance with the lawyer who did not understand his at best poorly phrased question.

That brings us to Justice Kavanaugh, who was very active during the oral argument. As I shall explain, we can most charitably describe his activity as highly misleading.

Precedent on Shmecedent

Before the portion of his Supreme Court confirmation hearing in which then-Judge Kavanaugh yelled, cried, and professed that he still likes beer, he engaged in an extended discussion of the respect due to the Supreme Court’s abortion precedents. He referred to Roe as “settled law” and to Casey as “precedent on precedent.” Those statements seemed designed to reassure senators and the public that he would not vote to eliminate the abortion right. If so, they were deliberately misleading.

By “settled law,” Kavanaugh apparently meant only that the Supreme Court had not yet overruled Roe and Casey, leaving open the possibility that the Supreme Court could unsettle the law by doing so. As for “precedent on precedent,” the phrase perhaps sounded like a kind of extra-strength precedent, but all Kavanaugh really meant was that the Casey decision included a discussion about precedent (in addition to its discussion of abortion). It was thus a precedent about, or, if you will, on, precedent. Even as he likely hoped that senators and the public would think he meant something else, Judge Kavanaugh did not say that precedent on precedent should be more difficult to overrule than precedent on other matters.

Moreover, even if a precedent on precedent were more difficult to overrule than a precedent on other matters (like abortion), Kavanaugh’s statements at his confirmation hearing left open the possibility that he could adhere to the Casey Court’s pronouncements about precedent but then say that the Court misapplied those precedents in reaffirming any abortion right.

Until the Supreme Court issues its ruling in Dobbs, we will not know just how much weight Justice Kavanaugh thinks Roe and Casey should receive as precedent, but nothing about his tenure on the Court thus far suggests that he intends to give much weight to the “settled” precedents on abortion. Last year, in a concurrence in Ramos v. Louisiana (requiring unanimous juries in state criminal cases), Justice Kavanaugh provided what he himself described as a “lengthy and extraordinary list of landmark cases that overruled precedent,” adding for good measure that precedent has less weight in constitutional than in statutory cases. And notably, none of Justice Kavanaugh’s questions in the Dobbs argument asked about the strength of precedent. He gave every indication that he was treating the abortion issue as a matter of first impression for the Court.

To be sure, it remains possible that Justice Kavanaugh will surprise me and other observers by adhering to at least a watered-down version of Roe and Casey. But his statements about precedent thus far provide little reason for hope.

Neutral on Abortion

Justice Kavanaugh’s performance during the Dobbs argument was as misleading as his “settled law” and “precedent on precedent” misdirection plays at his confirmation hearing. Questioning the lawyer for Mississippi, Justice Kavanaugh purported to seek reassurance that the state was not asking for the Court to forbid abortion: “you’re arguing that the Constitution’s silent and, therefore, neutral on the question of abortion?,” Justice Kavanaugh asked rhetorically. “In other words, that the Constitution’s neither pro-life nor pro-choice,” he continued with evident approval.

The question and statement were likely meant to reassure the uninformed public that Justice Kavanaugh is a moderate and that the stakes are low because even if the Court overrules Roe and Casey, abortion will still be legal. Both reassurances were misleading and perhaps deliberately so.

Only a constitutional ignoramus could have thought that Mississippi was asking the Supreme Court to forbid abortion. Nearly every critic of Roe has argued that the Court erred by recognizing a right regarding a matter as to which the Constitution is supposedly silent. For example, Justice Antonin Scalia, dissenting in Casey, gave two reasons for his view. The first was “the Constitution says absolutely nothing about” abortion. Likewise, the state’s main brief in Dobbs itself says flatly: “The Constitution’s text says nothing about abortion.”

Is it possible to argue that the absence of the word “abortion” in the constitutional text rules out a right to abortion but leaves open the possibility of a fetus’s constitutional right to life? Absolutely. Indeed, many in the anti-abortion movement would very much like to see the Court adopt just such a view. However, no one who is paying the slightest bit of attention could think that Mississippi is arguing for a constitutional right of fetuses to government protection against abortion in this case. Justice Kavanaugh’s question was thus intended for the non-lawyers in the home audience, not for anyone with any knowledge of what the case involves.

The Threat of Federal Legislation

Yet even as Justice Kavanaugh purported to take seriously an overstatement of what Mississippi seeks in Dobbs, he also misleadingly understated the risk that abortion could become illegal nationwide. In a colloquy with Solicitor General Elizabeth Prelogar, Justice Kavanaugh suggested that in the post-Roe future the abortion question would produce “different answers in Mississippi and New York, different answers in Alabama than California.” He thereby echoed the common view that the issue in Dobbs is whether to send the abortion question “back to the states.”

That common view is correct with respect to the short term. In the immediate aftermath of a Supreme Court decision overruling Roe and Casey, red state legislatures will rush to pass new abortion restrictions, while prosecutors in such states will quickly move to enforce abortion restrictions already on the books. Gambits like Texas’s S.B. 8, which relies solely on ostensibly private civil actions in order to chill abortion rights while evading federal district court jurisdiction, will be shelved once five or six Justices give the green light for direct criminalization.

True, following Roe’s overruling, abortion would remain legal in blue states like New York and California, but perhaps only for a time. Once gerrymandering, voter suppression, and other anti-democratic measures yield a Republican congressional majority and Republican President, we might well see a federal statute forbidding abortion throughout the country. Such a federal law would pre-empt any effort by New York, California, or any other state to keep abortion legal.

Justice Kavanaugh knows as much. Under what he described as the Constitution’s neutral position on abortion, Justice Kavanaugh said that the decision would be for “the people of the states or perhaps Congress to resolve in the democratic process.” That perhaps Congress was no slip of the tongue. Later in the argument, Justice Kavanaugh repeated the point, asking why abortion should be not left to “Congress, the state legislatures, state supreme courts, [or] the people.” To be clear, Justice Kavanaugh was not suggesting that the legality of abortion could be decided by the states and the federal government simultaneously. If Congress enacts a nationwide abortion prohibition, state laws will not matter.

Will all of that happen? Not necessarily. Perhaps two or more members of the six-Justice conservative super-majority will step back from the brink and apply existing precedent to invalidate the Mississippi fifteen-week ban. Even if not, perhaps Republicans in Congress will conclude that they will pay a price at the polls for a nationwide abortion ban.

Of course, for the latter to occur—for what Justice Kavanaugh calls the “democratic process” to address the abortion issue in a fair manner—requires that there be a democratic process. Given the Roberts Court’s record of gutting the Voting Rights Act, welcoming a flood of money into our electoral system, and greenlighting extreme political gerrymandering, Justice Kavanaugh’s paean to democracy is a bit hard to swallow.

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