Thursday, October 21, 2021

Justice Gorsuch’s decision to oppose Texas abortion law was part of an ongoing effort to overturn Roe

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Even before the health care law was eviscerated last month, anti-abortion legislators made clear their determination to use it as a vehicle to undo key women’s health protections. In that effort, they count in President Trump, who has vowed to appoint pro-life justices to the Supreme Court.

During his 2016 campaign, Mr. Trump repeatedly promised to protect women’s access to abortion — a potentially catastrophic promise if Republicans gain a Senate majority in November’s election and eliminate abortion rights. But now, the pick of conservative judge Neil Gorsuch to fill the vacancy on the Supreme Court gives Republicans, who have already lost the majority they controlled for much of the Obama presidency, a chance to do away with Roe v. Wade once and for all.

For many opponents of abortion, Mr. Trump’s lawyers at the Justice Department have already begun pressing the country’s court system to reorder the balance between the reproductive rights and health of women and life rights and safety of men and women. Their cause has been aided by another high-profile ruling made last month by Brett M. Kavanaugh, President Trump’s federal judge nominee, who wrote in a dissenting opinion that a Texas law barring abortions after 20 weeks of pregnancy violated a woman’s constitutional right to make her own health care decisions.

Mr. Kavanaugh, who was named to the court in 2006, was generally thought to be conservative on other social issues. A Harvard Law graduate, he clerked for Justice Anthony M. Kennedy, who in recent years wrote swing opinions on the court that broadened abortion rights. But when he was called to serve on the appeals court in Washington, his record made clear that he was broadly anti-abortion.

Writing on behalf of the first 20 minutes of Mr. Kavanaugh’s time before the full court, Justice Samuel A. Alito Jr. castigated the judge for writing in earlier opinions that restrictions on abortion were justified by medical considerations, not ideology.

“Such findings may not be shown unless and until a judge learns about the medical procedures involved,” Justice Alito wrote. “And in this era, doctors regularly make detailed — and in this case, highly classified — descriptions of procedures. Thus, an informed court would need to actually understand these procedures and truly appreciate the context in which they took place before arriving at a proper and reasoned judicial decision on this question.”

The most significant moment in the course of Mr. Kavanaugh’s legal career occurred four years ago, when a federal court there struck down a North Carolina law that would have made it impossible for poor women to obtain abortion care. Justice Alito called the law “a ‘backward-looking’ attempt to reinstate restrictions that have been struck down by the courts.”

He added: “The claim of a serious interest is quite disconnected from the Legislature’s real-world reality: the overwhelming majority of women obtain an abortion before they turn eighteen.”

The law also threatened to shut down the only abortion clinic in North Carolina, and every other abortion clinic in the state was severely restricted. It did not prevail, but it helped stoke conservative fears that abortion could become much more difficult to access in years to come.

The episode contributed to Justice Kavanaugh’s determination to determine for himself that the abortion law was legal, even though every judge on the appeals court unanimously agreed that it was unconstitutional.

Just last month, Justice Alito repeated his belief that regulations on abortion clinics, like those in North Carolina, “likely infringe on a woman’s right to abortion.” And he warned the court against ruling the Texas law was unconstitutional, even though all nine other federal appellate courts disagreed.

“The Supreme Court has signaled an inclination toward accepting circumstances as they are on the ground, as opposed to revisiting them as state lawmakers may seek to do in the future,” Justice Alito wrote.

In another concerning move for abortion rights supporters, Justice Elena Kagan, who also serves on the court, has suggested that the judiciary has overstepped its bounds in trying to try to find the right balance between medical care and the freedom of women to get abortions.

“To be sure, a woman may elect to abort a pregnancy when she has exhausted all options,” Justice Kagan wrote last month in a speech before the National Women’s Law Center. “We have some sympathy for her grief and sorrow. We can sympathize with the hurt caused by losing a child, when the child was coming into the world to love and raise children.”

But in this example, however, Justice Kagan was trying to draw the line.

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