In the hour-long announcement in which Senator Susan Collins (R-Maine) declared her intent to confirm Justice Brett Kavanaugh, she repeated her belief that Kavanaugh demonstrated no hostility to Roe v. Wade. She may be proven wrong this week.
This is happening because the Fifth Circuit Court of Appeals allowed Louisiana’s new restrictive anti-abortion law to take effect in direct defiance of a 2016 Supreme Court ruling. Substantively, Louisiana’s law is no different from the Texas law the Court previously struck down.
“The majority today fails to meaningfully apply the undue burden test as articulated in Casey and clarified in Whole Woman’s Health,” wrote Reagan-appointee Judge Patrick Higginbotham in his dissent in the Fifth Circuit’s decision on June Medical Services.
In Whole Women’s Health, the Supreme Court held that states have to weigh their stated government interest against the burden imposed on reproductive healthcare by their legislation. In the case, centered around a Texas statute, the Court held that the law did not give enough health benefits to justify the burdens it placed on women and healthcare providers.
The difference between the Texas law and the Louisiana one is what Justices will be hearing it. In 2016 the court had a delicate balance, but with the additions of Justice Neil Gorsuch — and most importantly Justice Brett Kavanaugh — replacing the Court’s swing vote, the balance of power has flown far to the right wing.
When directly questioned about the finding in Whole Women’s Health, Kavanaugh wouldn’t tell the Senate if he thought the case was correctly decided.
SPOILER ALERT: The Supreme Court will deny this request for a stay in a 5-4 vote, and that is how it will signal to lower courts that Roe is effectively dead and they should feel free to ignore it. https://t.co/ZswRRuqQhj
— Ian Millhiser (@imillhiser) January 28, 2019
That leaves the outcome of June Medical Services rather obvious. Gorsuch, Kavanaugh, Alito and Thomas will likely be joined by Chief Justice John Roberts in refusing to block Louisiana’s abortion restrictions. While that, in itself, is not the ultimate say on June and certainly not on Roe, it does clearly show the intent of the Court.
But it doesn’t have to be the last word on Roe to effectively end it.
Judges tend follow where the Supreme Court leads, especially when they agree with the indication they get from the highest court. Denying the stay in this case is a signal to anti-abortion judges nationwide that the Supreme Court isn’t interested in it’s own precedents on this issue, and gives them the green light.
Protections for a women’s right to choose won’t end this week. But the argument that Susan Collins made to the American people when confirming Brett Kavanaugh will. And while the right to choice is endangered for women nationwide, women in Maine still have a choice in 2020.
The outcome doesn’t look good for Collins.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.