Brett Kavanaugh’s Burden on Reproductive Freedom

It’s time for our senators to stop pretending that Brett Kavanaugh doesn’t have a blatantly anti-choice record — it’s right where he told us to look.

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In his confirmation hearings last week, Supreme Court nominee Brett Kavanaugh staunchly refused to answer basic questions about the morality of obvious racism, ableism, and misogyny — falsely claiming that all currently sitting Supreme Court justices also refused to do so in their hearings. Instead, Kavanaugh continuously directed senators to his judicial record as the best example of his character as a judge — so we’re taking him at his word. Maybe he thinks we wouldn’t actually read his opinions, or maybe he thinks women don’t understand fancy judge talk; it’s hard to know since he apparently can’t answer any questions about anything. But here’s the thing about Brett Kavanaugh’s judicial record on reproductive freedom: It’s even more damning than his comments or emails.

As a federal judge on the U.S. Court of Appeals for the District of Columbia, Brett Kavanaugh has ruled on two major cases relating to reproductive freedom. In each of these rulings, he issued scathing dissents against the majority opinions, both of which ruled to allow women the autonomy to make their own reproductive healthcare decisions without interference.

Priests for Life v. HHS

In 2014, Brett Kavanaugh and the D.C. Circuit Court ruled on Priests for Life v. HHS, a case in which anti-choice group Priests for Life argued that employers should have the right to deny contraception access to their employees because of the employer’s personal (and scientifically disproven) belief that birth control pills are “abortion-inducing drugs.” While the court found that the Affordable Care Act and its birth control benefit provided a fair process for obtaining a religious exemption from covering contraception, Kavanaugh penned a fiery dissent.

Brett Kavanaugh opined that even the act of filling out the religious accommodation form — a document that exempts anti-choice employers from the responsibility of providing contraception coverage while also giving their employees third party options for coverage — was too burdensome. He went on to write that, “the regulations substantially burden the religious organizations’ exercise of religion.” Basically, Brett Kavanaugh would rather bar women from access to basic reproductive healthcare than require an employer to fill out a measly two-page form.

It’s truly striking how expansive Kavanaugh’s view of what constitutes a “substantial burden” is when it comes to using an employer’s personal beliefs to deny an employee the right to make their own private healthcare decisions.

Garza v. Hargan

In 2017, Brett Kavanaugh ruled on his only abortion case to date. Garza v. Hargan’s Jane Doe, an undocumented and unaccompanied minor who was detained by the U.S. Government, sought to obtain an abortion in Texas. Jane was appointed a guardian ad litem, acquired private funding for her procedure, and obtained a judicial bypass for parental consent, as required by Texas state law. Jane fully complied with Texas’ onerous abortion restrictions to legally obtain an abortion, and that should’ve been the end of it.

But then came anti-choice ideologue and Trump administration official Scott Lloyd, who personally stepped in to bar Jane from accessing an abortion — even forcing her to visit an anti-choice fake women’s health center that is well-known for lying to women about the basic facts of reproductive healthcare. Under Scott Lloyd’s command, officials refused to release Jane Doe to obtain the abortion that she had the constitutional right to access. Doe and her court-appointed guardian sued, with the Garza v. Hargan case eventually landing in front of the D.C. Circuit Court.

Enter Brett Kavanaugh, the man who found even a two-page form to be “too burdensome” for an employer just a few years before Jane’s case landed on his bench. While the en banc U.S. Court of Appeals for the District of Columbia ruled that the U.S. officials must allow Jane Doe to access an abortion, Brett Kavanaugh dissented in dramatic fashion.

Kavanaugh asserted that the U.S. Government’s literally holding Jane Doe hostage and forcing her to carry a pregnancy against her will — even AFTER she’d fulfilled all legal requirements — wasn’t an “undue burden” on her right to abortion. He found no violation of Doe’s rights and sought to delay her choice further by requiring she be appointed another guardian to provide her “consultation,” as if it weren’t crystal clear that Jane had made her decision.

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When it comes to our reproductive freedom, Kavanaugh’s judicial record shows that he’s more than willing to go out of his way to argue against women’s right to self-determination. Despite touting his credentials as a precedent-loving, textual originalist, he seems to have trouble reading the text of the corresponding precedent without imposing an anti-choice ideological agenda. It takes quite a bit of mental gymnastics to believe that filling out a two-page form is a substantial burden, but being detained and physically blocked from accessing healthcare isn’t.

It’s no coincidence that Brett Kavanaugh believes it’s far too much of a burden on employers for a woman to need access to affordable birth control, but not burdensome for a young woman to be physically prevented from accessing abortion care. He would rather have our bosses and our government control our reproductive lives than allow women the right to make our own private healthcare decisions.

It’s time for our senators to stop pretending that Brett Kavanaugh doesn’t have a blatantly anti-choice record — it’s right where he told us to look.

NARAL Pro-Choice America is fighting for reproductive freedom for every body.

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