Despite the cloud of scandal darkening over Donald Trump — or perhaps because of it — Republicans are rushing his second Supreme Court nominee, Brett Kavanaugh, to his confirmation hearings, trying to get the Federalist Society-approved judge seated before many major cases are heard, possibly some involving Trump himself. As Kavanaugh's hearings begin on Tuesday, all eyes will be on Sen. Susan Collins, the Maine Republican who considers herself pro-choice but seems inclined toward voting to confirm Kavanaugh, even publicly claiming to believe his statement that Roe v. Wade is "settled law." If Collins does so, that will be enough to push Kavanaugh over the top. Republicans only have 50 votes in the Senate at the moment (after the death of John McCain) and may need all of them.
It's unlikely that Collins actually believes Kavanaugh is no threat to reproductive rights. If she does, she might well be the one person in politics, of either party, who is so foolish as to think that. It's not just that Trump openly promised to only appoint judges who would overturn Roe, but also that Kavanaugh's record shows he is anti-choice. In one recent case, he argued against a teen girl trying to secure her right to a swift abortion. In another, he ruled against two women who complained about being forced to have abortions. He has also argued from the bench that employers have the right to deny women access to insurance coverage for birth control.
The record is clear: Every time Kavanaugh had a chance, he fought against the basic right of a woman to control her own body, especially her own reproductive system.
The Center for Reproductive Rights has never taken a public stance against a Supreme Court nominee before, a move that is common enough for law firms and organizations that expect to have business before the court and don't want to alienate its members. But the group broke with its tradition to urge the Senate to vote down Kavanaugh, due to its concerns about his anti-woman record.
"We do not make this decision lightly," Nancy Northup, the center's president, said in an emailed statement. "His judicial philosophy is fundamentally hostile to the protection of reproductive rights under the U.S. Constitution."
Collins could be betting that by the time Kavanaugh actually has a chance to start peeling away women's rights, enough time will have passed that people won't remember that hers was the deciding vote. That's a bad bet. The grim reality is that Kavanaugh's opportunity to start dismantling reproductive rights will likely come sooner rather than later, quite possibly within a year.
"There are dozens of cases making their way through the lower courts whose outcomes could guarantee or deny access to reproductive health care for millions of women across the United States," Northup said in her statement.
Salon counted at least 22 cases currently being reviewed in federal courts that, if the Supreme Court takes them up, could dramatically change women's ability to access abortion or contraception.
A number of states are currently defending laws that create medically unnecessary restrictions — such as lengthy waiting periods, or requirements that clinics have hospital admitting privileges that are bureaucratically or logistically impossible — and that serve no purpose other than shutting down safe abortion clinics. After a 2016 Supreme Court decision that struck down such devious regulations in Texas, many hoped states would give up passing and defending such laws. Clearly, the anticipation that the Supreme Court would soon shift to an anti-choice majority has encouraged red states to keep trying.
Subsequently, states like Louisiana, Kentucky, Arkansas, Missouri and others have cases in federal court defending laws very much like the one that was struck down in Texas. It seems clear that the hope on the anti-choice right is that Kavanaugh will soon be seated and the 2016 decision that upheld abortion rights, Whole Woman's Health v. Hellerstedt, will soon be overturned. Should that happen, it's nearly as effective as overturning Roe v. Wade. States will simply pass a bunch of medically unnecessary regulations that clinics will be unable to meet, and legal abortion in many places will disappear.
There are also a number of cases working their way through the courts that threaten the ability of women to get affordable birth control. Louisiana, Texas, Kansas and other states have been fighting in court to bar Medicaid patients from using Planned Parenthood clinics. If any of these cases makes it to the Supreme Court, and Kavanaugh is the deciding vote to rule against these patients, thousands will likely lose birth control access altogether. Planned Parenthood is often the only reliable public clinic in many communities that offers contraception services.
On the federal level, the Trump administration has been quietly trying to slash contraception and sex education funding, with an eye towards redirecting money previously spent on effective prevention programs toward programs that preach abstinence only. A number of organizations are suing, on the grounds that it is "arbitrary and capricious" to cut funding to programs that work simply because the federal government disapproves of women having sex for pleasure instead of procreation. With Kavanaugh on the court, however, there could soon be a decision that opens the door to gutting programs that help prevent millions of unwanted pregnancies a year.
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Anti-choicers are also eyeballing the chance to cut women who have private health insurance off from contraception services. The Trump administration is trying to roll back an Affordable Care Act requirement that private insurance companies must cover contraception. At least two states — California and Massachusetts — are suing to protect women's contraception coverage. If these cases end up before the Supreme Court, it will likely be soon, and with Kavanaugh in place, women's right to contraception coverage will almost certainly be torpedoed.
“If Brett Kavanaugh is confirmed to the Supreme Court, the rights of my patients, not to mention all reproductive-aged women, would be impacted for generations," Dr. Willie Parker, the board chair of Physicians for Reproductive Health, said in an emailed statement. "Patients are facing unacceptable restrictions to abortion care now and, if Kavanaugh is confirmed, I worry that ultimately, none of us will be able to make decisions and control our own destinies."
As the Senate convenes for Kavanaugh's hearing, it's important to realize that these threats aren't in some distant future. If he's seated, by this time next year, there may already be a bewildering amount of damage done to rights to contraception and abortion that women in America had long thought were secure.
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