U.S. Supreme Court nominee Brett Kavanaugh, like high-court candidates before him, reportedly has said the abortion-rights landmark Roe v. Wade is “settled law.” But if he is confirmed, he may face opportunities soon to unsettle it.
Although there are no direct challenges to the abortion right pending in the Supreme Court, there are two state petitions that ask the justices to uphold the termination of Planned Parenthood’s participation in the state Medicaid program.
And sometime in the next two Supreme Court terms, the justices are likely to see petitions from at least three federal appeals courts that involve new abortion restrictions including mandatory pre-abortion ultrasounds to increasingly shorter periods in which abortions are legal.
“When folks ask, ‘Is Roe really settled law?’ we often say the term means different things to different people, but when you have dozens of federal judges lining up to criticize it, in what sense can you say it’s really settled law?” said Steven Aden, general counsel to Americans United for Life. “It’s an extremely optimistic time for the pro-life movement. We think progress can be made not just in the Supreme Court but in the courts of appeals and legislatures.”
Both sides of the abortion battle measure Kavanaugh primarily through the lens of his dissent in the recent case Garza v. Hargan in the U.S. Court of Appeals for the District of Columbia Circuit, where he has served since 2006. The court last year allowed a pregnant, undocumented teen in government detention to go forward with her abortion. Kavanaugh accused the majority of endorsing “abortion on demand.”
Rochelle Garza, the lawyer who argued for the immigrant girl, will testify next week at Kavanaugh’s confirmation hearing. Separately, the Center for Reproductive Rights on Thursday announced its opposition to Kavanaugh’s nomination, a first in the group’s nearly 30-year history.
“After a thorough review of Judge Kavanaugh’s judicial opinions, speeches and writings, we have grave concerns about how he will rule on reproductive rights cases,” Nancy Northup, the center’s president, said. Northrup called the stakes in the nomination “extraordinarily high.”
In April, the Guttmacher Institute, which tracks legislative actions related to reproductive health, reported a “notable” end-of-first-quarter trend in which eight states and the District of Columbia had adopted 25 measures to expand access to abortion, contraception, other reproductive health services and comprehensive sex education or to protect reproductive rights.
But anti-abortion measures also increased in that quarter: Five states had adopted 10 new abortion restrictions and 347 measures to restrict access to either abortion or contraception had been introduced in 37 states, according to the institute.
“There are dozens of cases making their way through the lower courts whose outcomes could guarantee or deny access to reproductive health care for millions of women across the United States,” Northup said.
Where abortion rights supporters see danger in the Kavanaugh nomination, abortion opponents see opportunity, particularly in President Donald Trump’s promise to appoint justices who will overturn Roe. Both his first nominee, Neil Gorsuch, and Kavanaugh are more conservative than the justices they succeeded or seek to succeed. Kavanaugh would replace retired Justice Anthony Kennedy who reaffirmed Roe in the 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey and voted to strike down Texas abortion clinic restrictions in the 2016 case Whole Woman’s Health v. Hellerstedt.
“When you go from a Supreme Court with two picks by President [Barack] Obama to now two picks from a Republican president, it’s all good,” Aden said. “Many of us have different views on the current administration, but to a woman and a man, we’re grateful this president is making his judicial picks.”
Here is a look at some of the cases in the pipeline that could reach a Kavanaugh-seated Supreme Court in the short term.
In the Supreme Court:
>> Gee v. Planned Parenthood of Gulf Coast, and Andersen v. Planned Parenthood of Kansas and Mid-Missouri. Two petitions, raising the same legal issue, await the justices’ return from their summer hiatus and are listed for the Sept. 24 conference. Louisiana and Kansas challenge rulings by the Tenth and Fifth Circuits that Medicaid patients may sue under Section 1983 to enforce the Medicaid Act’s free-choice-of-provider requirement. The provision gives Medicaid recipients the right to choose to receive medical care from any qualified and willing provider. The two states terminated Planned Parenthood’s participation in the program.
In the federal appeals courts:
>> Planned Parenthood of Greater Ohio v. Himes. The full U.S. Court of Appeals for the Sixth Circuit will hear arguments Oct. 3 on an Ohio law that prohibits all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used by any entity or an affiliate that performs or promotes nonherapeutic abortions.
A unanimous three-judge panel ruled the law imposed unconstitutional conditions on the funds. Planned Parenthood claimed the state law denied abortion providers funds “because of—and in retaliation for—their constitutionally protected advocacy for abortion rights.”
>> West Alabama Women’s Center v. Williamson. A three-judge panel of the Eleventh Circuit on Aug. 22 upheld a lower court injunction against an Alabama law banning some “dilation and extraction” abortions. After the ruling, Alabama’s Attorney General Steve Marshall said he was considering whether to petition the Supreme Court. “Some Supreme Court justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion,” Chief Judge Ed Carnes of the Eleventh Circuit wrote. “If so, what we must apply here is the aberration.”
>> Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana Dept. of Health. Indiana is asking the full Seventh Circuit to review a panel decision striking down Indiana’s law requiring a woman seeking an abortion to have an ultrasound at least 18 hours before, and at the same time as she must have an in-person informed consent consultation.
>> Planned Parenthood of Arkansas v. Jegley. The Eighth Circuit on Aug. 22 denied a request by Arkansas to put into effect immediately a state law requiring a provider of medication abortions to contract with a backup physician with hospital privileges in order to be able to dispense pills that induce miscarriages in the first 10 weeks of pregnancy.