What Brett Kavanaugh's Dishonest Anti-Abortion Dissent Reveals About His Supreme Court Agenda

By Jordan Smith, The Intercept

18 February 19

 

he most obvious thing about the Supreme Court’s decision to stay a Louisiana law that would have shuttered two of the state’s three remaining abortion clinics is that it was Chief Justice John Roberts who stopped that from happening. Roberts joined the court’s four more liberal justices to deliver a 5-4 majority that maintains the status quo, for now, and keeps the clinics open.

What is perhaps less obvious, at least at first glance, is the level of intellectual dishonesty baked into a four-page dissent penned by the court’s newest justice, Brett Kavanaugh. Kavanaugh voted along with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch to deny the stay, but was the only justice to try to explain his thinking in writing. If he wanted to maintain the fidelity-to-precedent fiction he peddled at his confirmation hearings, it probably would have been better if he had stayed silent. The document is a mess of omissions and misrepresentations dressed up to appear anodyne.

At issue is a 2014 state law that would require abortion doctors in Louisiana to have admitting privileges at a hospital within 30 miles of the clinics where they work. It is identical in substance to a law passed in Texas a year earlier, a law that was struck down as unconstitutional by the Supreme Court in 2016. There, the high court found that there was a “virtual absence” of any health benefit conferred by the law and that it amounted to an undue burden on abortion access. It was yet another reiteration of four decades of the court’s precedent upholding women’s reproductive right of choice.

Nonetheless, the admitting privileges requirement remains a favorite among lawmakers bent on curbing access to abortion who claim it protects women’s health. But admitting privileges are a bureaucratic matter. They are not standardized, and a doctor can be rejected for pretty much any reason. Only one of the abortion doctors in Louisiana has admitting privileges. The others have tried repeatedly and have been rebuffed. One of the doctors sought privileges and was rejected by every hospital within 30 miles of the clinic in Shreveport. If the law were to take effect, that clinic and doctor would be unable to continue providing care. Two other doctors in the state were rejected precisely because they are abortionists.

The law has been tied up in litigation since its passage, and in January 2016 a district court judge issued a detailed, 112-page ruling blocking it from taking effect. The state appealed to the 5th U.S. Circuit Court of Appeals — the same court that upheld the legality of Texas’s law before its error was corrected by the Supreme Court. Nonetheless, last fall a three-judge panel of the 5th Circuit overturned the lower court’s ruling, engaging in serious mental gymnastics in order to conclude that women in Louisiana would not be burdened by the law’s impact. In fact, the panel majority suggested that the doctors had simply not tried hard enough to secure privileges — even though the evidence in the record is entirely to the contrary.

The Center for Reproductive Rights sought to have the entire court reconsider the panel’s ruling, but the court declined, teeing the case up for the Supreme Court. It is the first direct challenge to abortion rights to make it all the way to the reconstituted court, and the conventional wisdom is that the justices will consider the merits of the case during their next term, which begins in October.

The Kavanaugh “Compromise”

In the main, Kavanaugh proposes what sounds like a compromise. The court should deny the stay and allow Louisiana’s admitting privileges law to take effect. He notes that the state says it will take 45 days to implement the new law, giving the doctors a bit of extra time to secure privileges. If they can’t and the clinics close, then CRR could file a new legal challenge in district court — effectively starting back at square one.

There are a lot of things wrong with this scheme and its premise and I’ll get to that, but first it is worth noting that this is precisely the kind of alleged compromise that Kavanaugh suggested in his dissent in Garza v. Hargan, which involved the government’s efforts to block a 17-year-old migrant in its custody from getting an abortion. The teen, who was detained at a private shelter in Texas, had already obtained a judicial bypass — meaning that she could access care without a parent or guardian’s permission — but the government refused to allow her to go to a clinic. Instead, they forced her into counseling at a crisis pregnancy center. The American Civil Liberties Union sued on her behalf and won in the D.C. Circuit Court, prompting Kavanaugh’s dissent. There he suggested that the government should have more time to find the teen an immigration sponsor. That way, the government wouldn’t have to be involved in directly facilitating the abortion, and the teen would be in a position to get counseling from her adult sponsor before having the procedure. If the government couldn’t find a sponsor, the girl could again ask the court to intervene.

This was a disingenuous and ridiculous proposal. For starters, the government had already been trying to find the teen a sponsor and hadn’t been able to, so there was no reason to think that one would suddenly appear — and in the process, they had been blocking her access to abortion for more than a month. She’d already gone through judicial bypass, which isn’t exactly easy: During the process, a judge determines whether the teen is mature enough to make the decision on her own and often tests her resolve. The judge granted her request, so there was also no reason to think that she was suddenly going to change her mind after talking things over with one more random adult.

In essence, then, what Kavanaugh was selling as a procedural compromise was really nothing more than a solution that would give the state license to do as it pleased by placing additional unnecessary and unconstitutional barriers in front of a woman seeking abortion. With his opinion in the Louisiana case, he is offering the same sort of solution — and misrepresents or conveniently omits important facts of the case to do so.

In his supposed compromise in the Louisiana case — known as June Medical Services, LLC v. Gee — Kavanaugh leans heavily on the idea that there’s no immediate harm or foul because the state of Louisiana says that it will not be enforcing the law for 45 days after it takes effect. Meaning that in the interim, he writes, the abortion doctors could continue to provide care while also chasing admitting privileges. This is just wrong. The alleged 45-day ramp-up is a fiction. It wasn’t until just before the state’s lawyers filed a brief with the Supreme Court arguing against the stay that the state posted a notice to the health department’s website outlining how it would go about verifying admitting privileges for purposes of enforcing the law. So the 45-day waiting period never existed until the state was readying to argue that no harm would come to anyone by allowing the law to take effect.

Instead of seeing this for what it was — a brazen misdirect — Kavanaugh blithely adopted the fiction. And even though Kavanaugh asserts that Louisiana has said that during this interim period the doctors, “could lawfully continue to perform abortions,” there is nothing to suggest this is the case. The law itself contains both civil and criminal penalties for noncompliance, and nothing in the state’s health department notice changes this. Moreover, enforcement of the criminal portion of the statute lies with prosecutors, not the health department, so even if there was some sort of administrative interim period that doesn’t necessarily constrain any particular prosecutor from taking action.

Kavanaugh also doubles down on this notion that the doctors just need to try harder to obtain admitting privileges and that the 45-day reprieve will give them the opportunity to do so. This is insulting and adopts the 5th Circuit’s revisionist history of the case.

In its 2016 opinion blocking Louisiana’s law, the district court made detailed findings on this point — findings that the 5th Circuit’s 2-1 panel majority all but ignored. In fact, the panel leaned heavily on the idea that the doctors were to blame for not receiving privileges. Louisiana has run with this idea — writing in its brief to the Supreme Court that it shouldn’t be penalized “from the independent decisions of doctors not to seek in good faith to comply with the law” — and Kavanaugh has, again, simply adopted this reasoning: Allowing the law to take effect, he wrote, would allow time for the doctors to put forth “good-faith efforts” to comply.

All of this ignores the fact that Louisiana’s law was passed in 2014. The doctors have been trying to obtain privileges for more than four years. One was flat-out denied by every single hospital; two were denied because they provide abortions. There is no timeline for a hospital to make a determination on privileges, and some of the Louisiana doctors have had their applications pending for years, which amount to de facto denials.

And despite the state’s protestations to the contrary, there is evidence in the record that Louisiana lawmakers proposed the regulation not to improve patient safety, but solely to close abortion clinics. In its opinion, the district court pointed out that the state health department, anti-abortion advocacy groups, and the law’s primary sponsor, Rep. Katrina Jackson, undertook a coordinated effort to restrict abortion access in the state. In fact, in an email exchange, the vice president of an anti-abortion advocacy group wrote to Jackson to laud the law and point out that in Texas, the statute had “tremendous success in closing abortion clinics.”

The Case of the Missing Doe

And then there’s the matter of the Missing Doe. In his dissent, Kavanaugh essentially argues that all that’s at issue here is whether three Louisiana abortion doctors — designated as Doe 2, Doe 5, and Doe 6 — can obtain privileges. He notes that one doctor in the state already has privileges (without acknowledging that this is so only because the doctor has a private ob/gyn practice through which he admits a certain number of patients a year) and then pivots back to the idea that Does 2, 5, and 6 can use this 45-day period to give this all another shot. If they get privileges, then they can continue providing care and there will be no undue burden on abortion access, he concludes.

What he completely omits is any mention of Doe 1, one of the named plaintiffs in the lawsuit. Doe 1 is the doctor from Shreveport who sought privileges at every hospital in that area and has been denied privileges. So, a 45-day extension isn’t going to change anything for Doe 1 and if the law takes effect, the Shreveport clinic will close and leave thousands of women without meaningful access to care.

The omission of Doe 1 from Kavanaugh’s analysis seems particularly dishonest: Doe 1’s predicament belies the notion that there is any period of time that would be harmless for women seeking care and it suggests what is to come, because there is no reason to think that Doe 1 is somehow different than the other three doctors who have spent years seeking privileges without success. Meaning that if the law were to take effect, regardless of whether that happens tomorrow or 45 days from now, the most likely outcome, supported by actual facts, is that Louisiana would be left with just one doctor and one clinic to provide services to the roughly 10,000 women in the state who seek abortion care each year.

There is at least one additional problem with Kavanaugh’s dissent, and it has to do with the role of the 5th Circuit. In reviewing the district court’s findings that blocked the law, the appellate court was supposed to be analyzing the decision for “clear error” — meaning that if the trial court’s factual determinations, based on witnesses and evidence presented to it, are plausible in light of the entire record, the appellate court may not reverse the lower court opinion even if it would have decided it differently.

Clearly, the 5th Circuit did not do that here. The district court’s decision was fact-heavy and clearly supported. That the 5th Circuit didn’t like its conclusion — that enacting the law would be detrimental to women seeking abortion — is irrelevant. Instead, in order to justify its decision, the panel majority whipped out some fanciful math to come to the conclusion that no women would be unduly impacted by the regulation. They claim that even if the Shreveport clinic closes, two other doctors — doctors who have not been able to obtain admitting privileges — would merely have to obtain privileges and then, between them, would only have to work 3.6 additional hours per week to handle the increased patient load. And that, the court concluded, means women seeking abortion would only end up waiting an extra “54 minutes” to obtain services. There is literally nothing in the lower court record to plausibly support these assertions.

Not that it is entirely surprising that the 5th Circuit would substitute its judgment about the facts of the case — or that it would just make up its own “facts.” The court is notoriously ideological and results-oriented — and, with the addition of four new Trump-appointed judges, is poised to become even more so. In another abortion-related Texas case, Trump appointee Judge James Ho last summer wrote a startling opinion championing those who object to the “moral tragedy” of abortion and accusing a respected and long-serving district judge of being anti-Christian. And this is the same circuit court that upheld the Texas abortion provisions ultimately struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt. At one point, in defending her position that the restrictions didn’t actually present a burden for women (even though they’d led to the closure of nearly half of the state’s clinics), Judge Edith Jones opined that Texas has uncongested roads and high speed limits, so traveling longer distances for care wasn’t really an issue.

So it’s hardly surprising that the panel would try to rejigger the facts in June Medical Services to bring them in line with the court’s outright hostility toward reproductive rights. What is more astounding is that in adopting the 5th Circuit’s conclusions, Kavanaugh has basically signed off on the court’s improper, if not simply rogue, approach to its work. Put another way, what the 5th Circuit has done is put itself into the position of being the final legal arbiter. It has positioned itself as both the district court and Supreme Court — making findings of fact and then applying precedent in a way that limits its meaning and allows an onerous restriction on abortion to all but eliminate access.

Paging Susan Collins

Perhaps there is no reason to be surprised that Kavanaugh would come out like this so soon and unabashedly, even though he tried to represent himself as a moderate who would respect precedent. Still, it is disturbing that he would so easily omit critical facts from his analysis and then couch the impact of his revisions as if they represent some benign compromise. Notably, none of the other justices signed on to his dissent.

Since the ruling, Maine Republican Sen. Susan Collins has been widely criticized (again) for casting the deciding vote last fall in favor of Kavanaugh’s confirmation. At the time, she said that Kavanaugh had, both publicly and privately, assured her that he wasn’t gunning for Roe v. Wade, which he considered “precedent on precedent.” Defending her boss, Collins’s Communications Director Annie Clark said last week that it was “clear that a lot of the critics of Justice Kavanaugh’s dissenting opinion haven’t even read it.”

One has to wonder if Collins has done so.

“To say that this case,” she told CNN, “this most recent case, in which he wrote a very careful dissent, tells you that he’s going to repeal Roe v. Wade I think is absurd.”

Maybe. But Kavanaugh certainly seems to be trying to make Roe irrelevant.