One of President Donald Trump’s most fervent — and contentious — vows on the campaign trail was that he would appoint justices who would dismantle Roe v. Wade, the Supreme Court ruling that established the right to legal abortion 45 years ago.
Trump followed through in 2017 with his first appointment: Judge Neil Gorsuch, whom President George W. Bush had appointed in 2006 to the U.S. 10th Circuit Court of Appeals. In Gorsuch’s Court of Appeals ruling on what was later called the Hobby Lobby case, he sided with Christian employers and religious organizations that demanded an exemption from the contraception mandate in the Affordable Care Act based on their religious beliefs. After a subsequent appeal to the Supreme Court in 2014, a 5-4 U.S. Supreme Court ruling affirmed the religious exemption.
Gorsuch also expressed his anti-choice views on June 26 when he joined the conservative majority affirming the so-called First Amendment rights of “crisis pregnancy clinics” in California. That ruling gave these services permission to continue lying to and emotionally bribing, manipulating and coercing mostly poor women, often women of color, into keeping unplanned pregnancies.
Trump’s second nominee to the court, awaiting Senate approval, is Judge Brett M. Kavanaugh, whose position on abortion and other women’s health issues is of primary concern, especially to the 67 percent of the population who support women’s access to legal abortion. According to a Kaiser Family Foundation poll in June, 81 percent of Democratic registered voters, 71 percent of Independents and 43 percent of Republicans do not want Roe v. Wade overturned. Among women of reproductive age (18-44), 74 percent support Roe.
In 2006, during his confirmation hearing before becoming a justice of the Washington, D.C., Circuit Court, Kavanaugh stated that he considered Roe to be binding under the principle of “stare decisis.” That Latin phrase refers to an established precedent, principle or authority set by a previous legal case or ruling, which assumes that similar facts will yield similar and predictable outcomes.
However, the most recent abortion case on which Kavanaugh dissented last October, involving a pregnant migrant teenager in Texas, showed that the judge lied.
Kavanaugh fails to follow precedent
In his dissenting opinion, Kavanaugh did not follow precedent on prior Roe rulings. Rather, he asserted that the pregnant 17-year-old migrant should not have immediate access to abortion care — despite the fact that a Texas court had granted the minor that right. Fortunately, the case was soon reversed by the full panel of D.C. Circuit justices, and the young woman, well into the second trimester of her pregnancy — very near the time when abortion would be unavailable in Texas — received the abortion she desperately wanted and deserved.
This very issue will soon come to the Supreme Court, since a class-action lawsuit on behalf of all im/migrant teenagers in federal custody who seek abortions is currently proceeding through the court system. Do you think Kavanaugh would follow precedent now and uphold Roe? Hardly!
(Similarly, Kavanaugh didn’t follow precedent on labor issues affecting all working people, but especially im/migrants, as detailed in an Aug. 9 Workers World article.)
On birth control, an equally critical women’s health issue, Kavanaugh sided with Gorsuch in a 2015 case on religious objections to paying for free contraceptives for all women employees as required by the Affordable Care Act. It’s projected that Kavanaugh would join the Trump administration in the pending lawsuit by 20 states to end the ACA’s requirement that health insurers cover pre-existing conditions. That case, due to be heard in a district court in Texas, could soon wind up before SCOTUS. (Washington Post, July 9)
An article posted on rightwingwatch.org cites a long list of reactionary pundits who applaud Kavanaugh’s nomination because it “was pre-approved by the Heritage Foundation and Federalist Society, which puts Americans access to health care, women’s ability to choose safe and legal abortion, and legal equality for LGBTQ Americans at risk.” (July 10)
Though Kavanaugh’s positions on same-sex marriage are not on the record, we do know that he supports the right of conservative Christians to discriminate on religious grounds. So we can extrapolate that he supported the court’s recent 5-4 Masterpiece Bakeshop decision and would back others that are poised to chip away at the rights LGBTQ folks have only just begun to win.
Anticipating that Trump would nominate an anti-Roe justice to the Supreme Court, five progressive organizations that support women’s right to bodily integrity and agency — Planned Parenthood, NARAL, the National Women’s Law Center, Demand Justice and the National Asian Pacific American Women’s Forum — raised the “personal liberty standard” on July 5 as a new litmus test for SCOTUS justices.
Planned Parenthood Executive Vice President Dawn Laguens defined the personal liberty standard based on the Fourteenth Amendment: “[The] Senate must only confirm a justice who affirmatively declares that they believe that the Constitution protects individual liberty and the right of all people to make personal decisions about their bodies and their personal relationships, including the use of contraception, the right to have an abortion, and the freedom to marry whom you choose. That is what the American people want to know.”
The group called for marches on Sunday, Aug. 26 — Women’s Equality Day (the day the Nineteenth Amendment established women’s right to vote) — to protest Trump’s nominee.
Need to counter anti-abortion troops and stigma
On the Senate floor July 25, Sen. Patty Murray (D-Wash.) denounced the threat Kavanaugh would pose to reproductive health care access, including contraceptives: “If an employer tries to deny his employee affordable birth control because he thinks he knows better … or if a woman does not want to carry her rapist’s child to term, our nation must affirm her autonomy because our laws are her last resort. But under Judge Kavanaugh’s vision … of tradition and conscience, women wouldn’t have that last resort.
“Instead a woman’s ability to get reproductive health care would overwhelmingly depend … on whether she could afford it, and therefore disproportionately on her race and zip code as well. The only way to stop this is for people to take action.”
That’s what’s needed to counter the “shock-and-awe” campaign that anti-abortion groups told The Daily Beast about on Aug. 2. Motivated by what they consider a “once-in-a-generation chance to end legal abortion,” groups like the so-called Pro-Life Action League and Americans United for Life are organizing more than 50 national and state anti-abortion groups with legions of grassroots troops to execute public relations blitzes, swing-state field operations, targeted advertising, lobbying of wavering senators, traditional letter-writing and phone-banking activities, and long-standing protests outside abortion providers on weekends.
They also plan a visible presence at town halls, other public events and rallies across the country in the run-up to the midterm elections. But with a difference. They are “tamping down the hysterical rhetoric” — graphic images of fetuses and abortion tissue — which don’t win hearts and minds to their cause.
Even before the campaign was announced, Katha Pollitt, a longtime abortion rights advocate and writer for The Nation, called Kavanaugh “bad news for reproductive rights.” (New York Times, July 10) She proposed the pro-choice movement mobilize in the states, because “if Roe is overturned, each state will be free to make its own laws.” She noted that current laws in 17 states will outright ban or greatly limit abortion as soon as Roe is history. Only nine states have laws affirming the right to abortion without Roe. She added, “If we wait until Roe is overturned, it will be too late.”
Women must fight back against abortion stigma and ignorance, asserted Pollitt. Data from the Guttmacher Institute show one in four women will have an abortion in her lifetime; the risk of death due to childbirth is 14 times greater than the risk of death from abortion; the vast majority of those who have abortions do not regret it, but feel enormous relief and gratitude; and a stereotype-shattering statistic is that 59 percent of those who have abortions are already mothers.
The last issue exposes the economic pressures exerted by low wages under this class-based, patriarchal capitalist system on millions of working women, especially women of color, youth, women with disabilities, rural women, immigrants and women who suffer from domestic violence.
Pollitt also called for visible and vocal support from the majority of Christians — mainstream Protestants, both Black and white, and Catholics — who say abortion should be legal in all or most cases. According to a 2017 Pew Research Center survey, even 29 percent of white evangelicals support abortion rights.
Noting that women had abortions in the thousands even when it was illegal, Pollitt stressed that overturning Roe would “fuel resistance.” Historian of abortion Rickie Solinger agreed: “Criminalizing sex-and-pregnancy management will stimulate women, as before Roe, to enact mass disrespect for the law. We are heading for some wild disobedience.”
And not a moment too soon — in the drive to crush capitalism and eradicate all the ugly, mean, divisive aspects of racist, sexist, bigoted class society.