Abortion was a central issue during the highly combative confirmations hearings in the Senate when President Donald Trump appointed Justice Brett Kavanaugh to the Supreme Court. It now appears that he may be the crucial “swing vote” in a potential landmark abortion case currently before the Court.
The Court is set to take up oral arguments Wednesday in Dobbs v. Jackson Women’s Health Organization, which deals with Mississippi’s ban on abortions after the 15th week of gestation. An abortion provider has sued, claiming that the law is unconstitutional, relying primarily on the 1973 Supreme Court ruling in Roe v. Wade. Mississippi and a group of interested parties participating in the case have expressly asked the Court to overrule the decision in Roe.
Supporters of abortion rights will need two justices appointed by Republican presidents to save Roe, and Kavanaugh has emerged as the most closely-watched of the group.
Clarence Thomas, Samuel Alito, and Neil Gorsuch are three conservative justices who have already criticized Roe and its cases. Justice Amy Coney Barrett does not have the same judicial track record on abortion to examine. Still, she has been associated with pro-life positions as a law professor and in her academic writings.
Abortion advocates are therefore left looking to Chief Justice John Roberts and Kavanaugh as the possible fourth and fifth votes to join with liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan to uphold Roe.
In 15 years as a federal judge, Kavanaugh has written little about abortion, with the small number of opinions he has issued preferring restraint in attacking existing precedential cases. He has made a few references to pro-life writings and legal authorities. The political battle that surrounded Kavanaugh’s appointment will leave social conservatives and virtually all Trump supporters very disappointed if he votes to uphold Roe in any respect.
Kavanaugh expressed doubt about the validity of Roe in a 2017 speech to the American Enterprise Institute. His speech was about former Chief Justice William Rehnquist, one of the dissenting justices in the Roe decision. Kavanaugh praised Rehnquist’s fight against the “general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
Kavanaugh was part of the majority of five justices who voted to allow Texas to enforce its new Heartbeat Act enacted this year until a final judicial decision is rendered in the cases challenging it.
Following the oral arguments Wednesday, the Court will discuss the case, decide on votes, and assign the writing of the final opinions on the case. The announcement of the final decision and opinions is expected before the end of the Court’s current term next summer.