Supreme Court Justice Brett Kavanaugh could be the deciding vote when the court takes up a challenge to Roe vs. Wade.
The court is now hearing arguments in Dobbs v. Jackson Women’s Health Organization, in the most significant abortion case since Roe v. Wade, the landmark 1973 decision legalized abortion nationwide.
The Dobbs case will force justices to consider the constitutionality of a Mississippi law that limits abortions after 15 weeks gestation with exceptions for fetal abnormalities and health emergencies.
A clinic in Jackson, Mississippi, is attacking the law on the grounds of its constitutionality. The state of Mississippi is asking the court to overturn Roe v. Wade altogether.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, the court’s most conservative justices, have criticized Roe in varying degrees.
Justice Amy Coney Barrett has been associated with pro-life causes when a law professor and has also questioned Roe v. Wade’s precedence in her academic writings.
This could leave Chief Justice John Roberts and Justice Brett Kavanaugh as the deciding votes on the nine-member court.
Kavanaugh’s vote uncertain
Reviews of Kavanaugh’s opinions suggest his openness to overturning Roe v. Wade despite having written little about abortion during his 15 years on the federal bench.
According to the Free Beacon’s Kevin Daley, “A canvass of those writings shows a preference for caution and restraint. But Kavanaugh has left a trail of anti-Roe breadcrumbs in his citations and approving references to pro-life authorities.”
He continued, “Abortion was a dominant theme of Kavanaugh’s bitter confirmation fight, and a decision upholding Roe even in part would deflate social conservatives and ignite a circular firing squad in the GOP.”
After the U.S. Court of Appeals for the D.C. Circuit ruled in 2017 that the federal government interfered with a woman’s right to have an abortion, Kavanaugh wrote a soft dissent.
When the Supreme Court ruled on June Medical Services, LLC v. Russo, which challenged a Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital, the four liberal justices and Chief Justice John Roberts temporarily blocked the law in February 2019.
Kavanaugh wrote a short solo dissent, saying that more information was needed regarding the precise effects of the statute.
In 2020, Kavanaugh joined the minority in a 5-4 decision that struck down Louisiana’s law. This was followed by Kavanaugh voting to decline to block a Texas law that bans most abortions. The Texas law bans abortions after six weeks when cardiac activity is detected.
After the 5-4 decision, an organization known as “ShutDownDC” held a protest outside his home in Maryland.