Right to Life of Central California is encouraged by President Trump’s nomination of Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court. Here’s why.
Kavanaugh comes from the world of attorneys, judges, and scholars molded by Antonin Scalia, Clarence Thomas, and the Federalist Society, the legal education organization that helps train law students and attorneys in conservative principles of jurisprudence and legal interpretation. Kavanaugh has referred to Scalia as “a hero and a role model,” and once wrote of him, “What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound and worth repeating often. The judge’s job is to interpret the law, not to make the law or make policy. . . . Don’t make up new constitutional rights that are not in the text of the Constitution.”
These commitments, along with an impressive record of judicial decisions adhering closely to the text of the Constitution, make him an attractive Supreme Court nominee for those of us committed to the defense of innocent unborn life. Roe v. Wade and Planned Parenthood v. Casey (the pivotal Supreme Court decisions upholding an alleged right to legalized abortion) are classic examples of “mak[ing] up new constitutional rights that are not in the text of the Constitution.” Indeed, it was in reaction to precisely those two cases, among others, that Scalia and the Federalist Society pioneered the modern movement of originalist, conservative legal scholarship, of which Kavanaugh was both a student and an active participant.
A graduate of Yale University and Yale Law School, Brett Kavanaugh worked for the George H.W. Bush Justice Department, and then served as a law clerk for Supreme Court Justice Anthony Kennedy, whom he is now replacing. He subsequently played a critical role as one of the attorneys in Kenneth Starr’s Special Counsel investigation of President Bill Clinton for perjury and obstruction of justice in the context of the Paula Jones/Monica Lewinsky scandal. Starr’s work, in which Kavanaugh played a significant role, led to President Clinton’s impeachment by the House of Representatives, and almost to his ouster from the Oval Office.
Kavanaugh went on to work for President George W. Bush, and in 2006 Bush appointed him to the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit court is one of several federal appellate courts that are one “step” below the Supreme Court, and it handles a wide range of critical lawsuits against federal executive agencies. For those concerned about Kavanaugh’s conservative credentials, the pro-choice New York Senator Chuck Schumer famously referred to his nomination to the D.C. Circuit as “not just a drop of salt in the partisan wounds, it is the whole shaker.”
While on the D.C. Circuit, Judge Kavanaugh wrote a decision holding that federal immigration authorities did not have to facilitate providing a teenage, undocumented immigrant with an abortion. He ruled that existing Supreme Court precedent did not create a wholesale right for unlawful immigrants in US custody to be furnished with an abortion.
Impact on Abortion Law
It is important to understand what is at stake for the pro-life cause. Roe v. Wade, the 1973 case that (along with Doe v. Bolton) mandated every state to legalize abortion at any point of pregnancy and for any reason, was largely replaced in 1992 by Planned Parenthood v. Casey. The controlling opinion in that case was co-authored and maintained for the last 25 years by Justice Kennedy, whom Kavanaugh is replacing. Casey maintained Roe and Doe’s insistence on legalized abortion for the duration of pregnancy and for any reason, but allowed states to pass various indirect regulations on abortion like informed consent laws, waiting period laws, laws requiring parental notification or consent before a minor’s abortion, etc.
There are currently four liberal Justices on the Court (Breyer, Ginsburg, Kagan, Sotomayor) who would likely reject Casey and establish a new, more radical regime of abortion law that would sweep away the 25 years of pro-life laws that Casey has allowed the pro-life movement to pass in dozens of states. There are four conservative Justices on the Court (Roberts, Thomas, Alito, Gorsuch) who likely believe that Roe and Casey were lawless exercises of judicial activism, and that states should have broad latitude to regulate or even outlaw abortion as they see fit.
For years, Kennedy was the “swing vote” in the middle, the lone person maintaining his own precedent from Casey that allowed some abortion regulation, but not too much. If he is replaced with an originalist like Brett Kavanaugh, there is a strong possibility that a new, conservative majority will have its way, and that Roe, Doe, and Casey will be consigned to the ash heap of history, where they rightly belong.
We ask our supporters to pray for the legal defense of all innocent unborn life, from conception to natural death. Pray for Judge Kavanaugh that, if he is confirmed to the Supreme Court, he will issue rulings that result in the legal protection of all innocent, unborn life.