Why Brett Kavanaugh’s arguments in Dobbs 'loom over' a Texas judge’s abortion pill ruling: columnist

11 April 2023

When pro-choice Sen. Susan Collins of Maine voted to confirm Justice Brett Kavanaugh to the U.S. Supreme Court in 2018, the pro-choice Republican insisted that then-President Donald Trump's nominee considered Roe v. Wade "settled law." But she was wrong. In 2022, Kavanaugh was among the five justices who voted to overturn Roe — after 49 years — with the widely unpopular Dobbs v. Jackson Women's Health Organization decision.

Dobbs was not a nationwide abortion ban. Post-Roe, the legality or illegality of abortion is being decided on a state-by-state basis in the United States. And one of the things the lower federal courts are grappling with is the availability of abortion bills.

In 2000, the U.S. Food and Drug Administration (FDA) approved the abortion drug mifepristone. But on Friday, April 7, U.S. District Judge Matthew J. Kacsmaryk — a "one-time Christian activist" and Trump appointee from North Texas — suspended that approval. President Joe Biden was quick to call Kacsmaryk out and describe his ruling as "another unprecedented step in taking away basic freedoms from women and putting their health at risk."

In an opinion column published on April 10, the Washington Post's Aaron Blake explains why Kavanaugh's words in Dobbs are relevant to Kacsmaryk's ruling on mifepristone.

"A Texas judge's order on Friday to suspend federal approval of the abortion pill, combined with a contradictory ruling in Washington State, has put the matter on course for a presumptive date with the Supreme Court," Blake explains. "At which point, we might find out just how committed the justices — and specifically, Justice Brett M. Kavanaugh — are to staying out of the abortion issue after overturning Roe v. Wade."

Blake stresses that in Dobbs, Kavanaugh "suggested that the decision meant" that the High Court "would effectively wash its hands of" the abortion "issue moving forward."

Kavanaugh wrote, "After today's decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans. That issue will be resolved by the people and their representatives in the democratic process in the States or Congress…. Especially in those difficult and fraught circumstances, the Court must scrupulously adhere to the Constitution's neutral position on the issue of abortion…. The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process."

Blake stresses, however, that it remains to be seen what Kavanaugh may or may not have to say about abortion pills in the future.

"He repeatedly described Roe as ‘precedent on precedent’ and ‘settled as precedent,’ and he said a majority of justices disagreeing with a precedent should not be sufficient to overturn it," the Washington Post columnist recalls. "By 2021, he had altered his tone significantly. And by 2022, he voted with a bare majority of justices to overturn Roe."

Read Aaron Blake’s full Washington Post column at this link.

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