With Supreme Court nominee Brett Kavanaugh poised to be confirmed as the next justice as soon as this fall, civil rights activists are scouring his past rulings, writings and speeches for a sign of whether or not he will be a solid vote to overturn Roe v. Wade, as so many fear.
But regardless of what pundits and analysts find, the sad fact is we already know that Kavanaugh will be a reliable vote to dismantle abortion and birth control access. After all, that’s exactly what President Donald Trump’s other judicial nominees are doing.
When then-candidate Donald Trump finally won over the religious right, he did so by promising them that he would only appoint judges who intended to overturn Roe v. Wade – and once he was sworn in as president, he followed through.
President Trump eventually went as far as to take vetted lists of potential judges pre-approved by social conservative groups like Family Research Council and the Federalist Society in order to ensure the conservative bonafides of the newly appointed judges. And those placements are already paying off in anti-reproductive rights rulings.
In Texas, Whole Women’s Health is challenging a new state law requiring that all fetal remains from terminated or miscarried pregnancies be cremated or buried rather than removed as biological waste. And Fifth Circuit Judge David Ho, a Trump appointee, has used the hearing to bemoan the “tragedy” that is legal abortion.
Just days ago, the three-judge panel — including Ho — blocked a prior court ruling to allow Whole Women’s Health to subpoena emails between the Texas Conference of Catholic Bishops and state officials. The messages in question may have discussed an offer by bishops to provide free burial as a means of getting the law to pass constitutional muster. The panel ruled that reading these emails would violate the bishops’ “religious liberty” — a laughable idea since being a religious leader does not make you immune to law.
Ho used the panel decision not just to promote a completely unreasonable definition of religious freedom, but also to express his own reticence to the idea that there is any constitutional right to an abortion.
According to Slate, Ho wrote:
It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case. The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.
Of course, Ho is just carrying the water for the anti-abortion movement — just as President Trump promised his appointed justices would. And he’s not the only one, either.
On July 18, another Trump appointee — Trevor McFadden — ruled that Planned Parenthood and other sexual health clinics can’t challenge the new changes to Title X family planning funding allocations that are being implemented by the Department of Health and Human Services. The updated policy would prioritize abstinence-only sex ed programs and faith-based organizations, some of whom don’t even offer birth control services. In response, the reproductive health groups sued to block these new rules from going into effect, claiming that they violate the terms of Title X and were approved without a public comment period.
United States District Court Judge Trevor McFadden, who was appointed by Trump in 2017, said in his ruling that “courts cannot review substantive objections to a non-final agency action, nor can they require formal rulemaking for a change in agency procedure.” McFadden also said that if he could rule on the merits of the case, the government’s changes align with program’s commitment to support “voluntary family projects … offering a broad range of acceptable and effective family planning methods and services.”
President Trump’s new judges are doing exactly what they were brought in to do — restrict abortion, block access to contraception, stop funding sex ed programs and otherwise limit reproductive health and freedoms. There’s no reason not to expect the exact same actions from Brett Kavanaugh if he serves on the Supreme Court — regardless of what he says on paper or in his hearings.
After all, this is exactly why he was appointed in the first place.