After Senator Collins gave “crucial support” based on her belief Kavanaugh would uphold abortion rights, private memos reveal he wanted SCOTUS to  punt on June Medical case to avoid putting his anti-choice “views on the line”

 

An exclusive new report in CNN reveals that Brett Kavanaugh privately urged his fellow Supreme Court Justices to consider avoiding a decision entirely in the June Medical reproductive rights case so that he “would not have to put [his] own views on the line.”

 

Senator Susan Collins said she was confident Kavanaugh wouldn’t rule against reproductive rights when she voted to confirm him, but when the Supreme Court heard the first major abortion case of his tenure, he instead tried to spare himself from having to rule on the case while actually making it more difficult to challenge unconstitutional abortion restrictions in the future.

 

And of course, when Kavanaugh’s colleagues rejected his suggestion, he returned to his “conservative convictions” and issued a dissent that argued that the court should ignore precedent in a major reproductive rights case, exposing Collins’ false justifications for voting to confirm him in the first place.

 

CNN: EXCLUSIVE: How Brett Kavanaugh tried to sidestep abortion and Trump financial docs cases

 

By Joan Biskupic

July 29, 2020

 

Key Points:

 

  • Supreme Court Justice Brett Kavanaugh urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump's financial records, according to multiple sources familiar with the inner workings of the court.

 

  • In the abortion controversy, Kavanaugh wanted the justices to sidestep any ruling on the merits of a Louisiana law that could have closed abortion clinics in the state, CNN has learned. The case marked the first time in four years the justices were taking up the heated subject. Kavanaugh's plan would have ensured the law -- a credentialing mandate for doctors who perform abortions -- would not go into immediate effect but also ensured that the justices would not have to put their own views on the line.

 

  • In 2018, Trump chose Kavanaugh to succeed Kennedy, convinced by advisers that the Bush loyalist would be true to Trump and his brand of conservatism. Kavanaugh has not turned his back on the politicians who guaranteed his high court ascension, but his writing has suggested he does not want to appear to be a reflexive conservative vote, particularly against women.

 

  • In March, Kavanaugh faced a test of the tension between his conservative bona fides and the apparent efforts to revive his reputation among women.

 

  • He had been confirmed with crucial support from Republican Sen. Susan Collins of Maine, who said he had promised he would uphold the 1973 landmark Roe v. Wade ruling, which made abortion legal nationwide. 

 

  • Kavanaugh's position on women's reproductive rights became an issue during his Senate hearings because Trump had nominated him to replace Kennedy, the court's crucial fifth vote to keep abortion legal.

 

  • On March 4, the court heard oral arguments in June Medical Services LLC v. Russo, a challenge to a Louisiana abortion law that requires physicians who perform abortions at clinics to have "admitting privileges" at nearby hospitals. It would turn out to be the justices' last day of arguments in the courtroom, before the nine went into isolation for the coronavirus pandemic.

 

  • A US district judge had determined after a six-day trial that the requirement designed for physicians who typically perform surgery at hospitals would shut down clinics and cut women's access to abortion. Doctors had been unable to secure admitting privileges, the judge said, partly because hospital criteria discouraged the granting of privileges to abortion providers. But the 5th US Circuit Court of Appeals rejected those findings and upheld the law.

 

  • When the justices privately discussed the case days after oral arguments, CNN has learned, their vote was 5-4 to reverse the 5th Circuit and strike down the law. Chief Justice John Roberts, a conservative, provided the pivotal fifth vote with liberals to invalidate the law, similar to one struck down in Texas four years earlier.

 

  • In mid-March, Kavanaugh began making his case in a series of private memos to his colleagues, according to two sources, for returning the dispute to a trial court judge to gather more facts on just how onerous the admitting privileges requirement was.

 

  • In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, threatening a woman's constitutional right to end a pregnancy. In the long term, Kavanaugh's demanding approach would make it more difficult to challenge the state physician regulation, meaning it could eventually be enforced down the line.

 

  • Kavanaugh directed his suggestions to all of the justices. Yet Roberts might have appeared most open to the idea, based on his own anti-abortion record. Four years earlier, Roberts had voted to uphold a nearly identical physician regulation from Texas. In fact, in his 15 years on the high court, Roberts had never cast a vote to invalidate an abortion regulation. Roberts also might have been similarly reluctant to stir controversy over reproductive rights and looking for a way to sidestep the dilemma.

 

  • There were no takers among the justices for Kavanaugh's suggested solution. The liberals were locked in, and the three other conservatives were ready to dissent with no equivocation: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

 

  • Roberts said he would join Breyer's bottom-line judgment against the Louisiana regulation, but with a rationale that would make it easier for states to defend restrictions on abortion clinics and physicians in the future. Kavanaugh penned a solo dissent asserting a lack of evidence that would support the challengers' claims. He also made clear, however, by signing on to Alito's dissent, that he thought sufficient facts existed on Louisiana's side.

 

  • Whatever ambivalences he began with, Kavanaugh returned in the end to publicly express his conservative convictions.

 

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