Kavanaugh's dissent in abortion case makes a fool out of Susan Collins


Collins said she thought Kavanaugh would respect Supreme Court precedent on abortion — but he just refused to enforce a decision the court made only two years ago.

Supporters of reproductive freedom breathed a sigh of relief on Thursday when the Supreme Court blocked a restrictive anti-abortion law in Louisiana from going into effect, with Chief Justice John Roberts joining the court's liberal justices in the narrow 5-4 ruling that prevents the law from being enforced.

Only one justice wrote a dissenting opinion: Brett Kavanaugh, whom opponents long warned would vote to limit or even end abortion rights in the U.S.

It's already shocking that four justices would dissent in this case, since the Louisiana law was almost identical to another law the court found unconstitutional just two years ago. It suggests that all of the court's conservative justices, except for Roberts, won't even bother to enforce the Supreme Court's own decisions when it comes to abortion rights.

But Kavanaugh's dissent in particular flies in the face of the promise Sen. Susan Collins (R-ME) made when she announced her key swing-vote decision to support Kavanaugh's nomination: that Kavanaugh would uphold Supreme Court precedent and not chip away at abortion rights under Roe v. Wade. 

"As Judge Kavanaugh asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked," Collins said in her long-winded speech from the Senate floor in October. "Its roots in the Constitution give the concept of stare decisis greater weight such that precedent can’t be trimmed or narrowed simply because a judge might want to on a whim."

So much for that.

It took just four months on the bench for Kavanaugh to chip away at established Supreme Court precedent from the 2016 Whole Woman’s Health v. Hellerstedt decision, making Collins' deluded speech look even more delusional now.

In his dissent, Kavanaugh argued that the Louisiana law — which requires abortion providers to have surgical admitting privileges at a hospital within 30 miles of their abortion clinic — is not unduly burdensome because those providers can simply obtain those admitting privileges.

That goes against the court's ruling in Whole Woman's Health, which held that a similar law in Texas created an undue burden for women who want an abortion, thus violating the Constitution.

Admitting privileges laws like those in Louisiana and Texas were indeed very burdensome for women seeking an abortion. They made abortion providers jump through absurd, medically unnecessary hoops that often resulted in clinics being forced to close, which resulted in many women being forced to wait longer and travel longer distances to get the procedure.

"No one should mistake Kavanaugh’s dissent as a genuine compromise," Mark Joseph Stern, a legal correspondent at Slate, wrote in a piece panning Kavanaugh's dissent. "There will always be a way to uphold an abortion law while insisting that somehow, someday, women might still find a legal way to terminate their pregnancies."

If Kavanaugh isn't willing to respect basic Supreme Court precedent on the Louisiana abortion case, there's no reason to think he'll respect it on Roe v. Wade or abortion rights more broadly — and the supposedly pro-choice Collins will be to blame.

Published with permission of The American Independent Foundation.