Kavanaugh, Collins and the Louisiana abortion clinic decision

The U.S. Supreme Court is clearly divided on the issue of abortion rights.

Five justices, considered to be conservatives, do not favor the right to an abortion. This right was not established by Congress; it is embodied in the Roe v. Wade decision.

Four justices, considered to be liberals, support Roe v. Wade.

The Court by a 5-4 vote decided that the Louisiana requirement doctors providing abortions must have admitting privileges at a hospital no more than 30 miles from their clinics could not stand.

In short, the Louisiana law undermined the right to an abortion.

With one exception (Justice Thomas), the justices used procedural tools to support their positions. But it would take being intentionally obtuse to ignore the real debate about abortion rights while focusing on procedure.

The swing vote came from Chief Justice John Roberts. He opposes abortion, but said he supports adhering to court precedents. A prior decision in which he found the facts to be the same as those in a case decided against Texas, and he felt bound by it. Perhaps, too, he wanted to avoid making a controversial abortion rights decision in the run-up to a national election.

In the Texas decision, the Court decided that a limit identical to Louisiana’s was excessively burdensome on the right to an abortion.

In other words, Roberts found the matter to be what Sen. Susan Collins has termed “settled law.” As such, it is a precedent worthy of respect in a later case.

In her consideration of whether to support Judge Brett Kavanaughs’ appointment to the Supreme Court, she said she had obtained his agreement not to overturn settled law.

If Kavanaugh had chosen to focus his dissent only on Roberts’ opinion that the matter was settled law, it would have been possible to say that he maintained his support for the concept, but thought the Louisiana law differed enough from the Texas situation that he was not persuaded is was a settled matter.

In that way, he could have been careful enough not formally to oppose the Louisiana law while trying to keep his commitment to Collins.

Instead, Kavanaugh chose to align with his fellow conservatives, the dissenters who argued that the Louisiana law was really in the interest of women’s health. By taking this stance, he joined the justices who could support abortion limits to the point of extinguishing Roe v. Wade in practice, if not formally.

That creates a problem for Collins who, in effect, gave Kavanaugh a vote in her re-election.

Now, he’s on the Court for life. There’s probably little reason for him to care if she wins a fifth term.

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.