He hasn’t faced a single Senate Judiciary Committee question yet about his nomination to the U.S. Supreme Court, but conservatives are already whispering that U.S. Circuit Court Judge Brett Kavanaugh will take the step in redefining abortion rights in his first term.
Anti-abortion forces are expecting states, likely led by Indiana, to ask the Supreme Court to back laws requiring abortion providers to handle fetal remains like the body of a deceased human, either by burial or cremation.
While such a narrow case would not jeopardize a woman’s constitutional right to an abortion, it would require the court to consider the meaning and impact of the landmark 1973 Roe vs. Wade and 1992 Planned Parenthood v. Casey cases, according to experts.
“Any case that comes before the Supreme Court involving abortion is going to necessarily call on the court to apply the standards of Roe vs. Wade and Planned Parenthood vs. Casey,” said Steven H. Aden, the general counsel for Americans United for Life.
“Yes, obviously in each of these cases, if the court accepts them, the court necessarily would have to determine the ongoing meaning” of past abortion decisions, he added.
Kavanaugh does not have much of a record deciding abortion cases. President Trump did not ask about the judge’s position.
But abortion advocates believe he will be a reliable anti-abortion vote and have mounted a costly and expansive media assault on him in hopes of winning over moderate Republicans senators such as Maine’s Susan Collins, who believes Roe vs. Wade is “settled law.”
Confirmation hearings are expected to take place in September.
Aden said while he didn’t know Kavanaugh’s view, he believes that the judge “has a firm regard for the constitutional text, he wants to know that the Constitution means, not what it is supposed to mean.”
And, he added, “That kind of thorough analysis based on the constitutional text is something that the late Justice Antonin Scalia meant to the court or Judge Kavanaugh’s role model, Chief Justice Rehnquist, meant to the court and that can only help both for the health of the court and constitutional analysis as well as the respect of what Jefferson called the ‘fundamental right to life’ in the Declaration of Independence.”
Several states have had their laws requiring the burial and cremation for aborted fetuses struck down by courts. One court fight is taking place in Texas this month. Proponents said the laws give a final dignity to the fetuses, while opponents said the laws create a hurdle to abortion.
In Indiana, the federal court has decided not to address the issue, making the Supreme Court the next stop and one Aden and Americans United for Life and other anti-abortion groups are encouraging the state to take.
And that would put rookie Justice Kavanaugh in the middle of what could be the biggest abortion-related case in years.
Rachel Busick, also with Americans United for Life, said, “These laws may offer the Supreme Court the opportunity to affirm what is already evident to science — that preborn lives are human lives, and that treating them with respect and dignity does not impose an ‘undue burden’ on abortion access.”
