Federal Courts and Nominations

Brett Kavanaugh: Bad for Women, Bad for Democracy

What the potential new Supreme Court justice could mean for women’s equality

Our nation’s Constitution is a document based on the principles of equality and freedom. As part of an institution tasked with upholding this foundational element of American democracy, the justices of the United States Supreme Court must keep these ideals central to their rulings.

The Constitution stands for progress, yet with Brett Kavanaugh’s nomination to the highest court in the land, the future of its application is at stake. While having a Supreme Court that refuses to adhere to the core principles of the Constitution would put so many critical rights in jeopardy, there is one issue at the forefront of everyone’s minds, an issue that Trump himself made the focus of this nomination: the future of Roe v. Wade.

Kavanaugh’s presence on the court could bring life-threatening consequences to women when it comes to access to abortions. This fact alone should be terrifying to Americans, but if that’s not enough of a wakeup call, consider this: abortion rights are not just about women’s health and body autonomy; they’re about basic personal liberties.

To get a better understanding of the dangers of a Kavanaugh appointment in terms of the future of Roe, I spoke with Elizabeth Wydra, president of the Constitutional Accountability Center (CAC). As CAC’s president and former chief counsel, Wydra, a Yale Law School graduate, frequently participates in Supreme Court litigation and has appeared as a legal expert for ABC, PBS, CNN and NPR, among other outlets.

So, what does Wydra believe is at stake with Kavanaugh’s nomination?

“It’s nothing less than the idea of fundamental equal status for women,”she said.

Trump made it clear even before his presidency began that a judge’s willingness to overturn Roe v. Wade would be his litmus test for choosing a justice for the nation’s highest court. And unfortunately for our democracy, Kavanaugh appears to pass that test with flying colors.

In 2017, as a judge for the D.C. circuit, Kavanaugh ruled against a young woman being held in an immigration detention center who was seeking an abortion, even though she had the funds, transportation and approval of a Texas judge for the procedure. In a 2015 dissent, Kavanaugh wrote that he did not believe employers should have to provide coverage for birth control, for which he cited religious reasons.

In short, Brett Kavanaugh is no friend to female reproductive rights.

“One cannot truly be equal if they don’t have the ability to choose whether or not to have a child. It’s a question of fundamental equality.” -Elizabeth Wydra

Roe v. Wade determined that the right to an abortion is a right to privacy, and that the right to privacy is protected under the Fourteenth Amendment. Under the current precedent, there’s an understanding that every American has a realm of personal liberty that cannot be infringed upon by the federal government.

And, as Wydra said, justices ought to “apply the whole Constitution, including the transformative post-Civil War amendments that wrote into the Constitution sweeping guarantees of equality and liberty for all, and not just the parts that they like.”

Without Roe, personal liberties have the potential to be squandered in the United States.

And it’s not just a clean overturning of Roe that Americans should be worried about. According to Wydra, we should also be “looking at whether the Court will chip away at that right. We could see Roe essentially be gutted even if the court does not make the obvious step of writing Roe is overturned.”

From a legal perspective, every American with an interest in personal liberties should advocate for Roe, but let’s not forget who would be affected by it being overturned the most: women, especially women of color. The United States has a long history of failing to provide women with the power to control their own stories, and Kavanaugh’s addition to the Supreme Court would likely lead to a continuation of this unjust trend.

To address the concerns of this dangerous nomination, Kavanaugh’s confirmation hearing must be thorough and address his beliefs on basic constitutional ideals. And this is a critical process in which you can make a difference.

“Americans need to be calling their senators making sure that this hearing is a real hearing,” said Wydra. “We should demand that our senators hold nominees of the standard of answering questions on fundamental constitutional provisions, because they’re getting a life-tenured position on the Supreme Court. This will change the course of American society for decades.”

Moreover, the Constitution is first and foremost a document by and for the American people. “Even if there is a Supreme Court that has an ideological bent that is out of step with how most Americans view the Constitution,” Wydra added, “we the people have to keep alive the vision of the Constitution even when the Supreme Court is not being faithful to that vision.”

And how can you do that? Vote.

Vote and ensure that whether or not Brett Kavanaugh sits on the United States Supreme Court, you will have representatives who will fight for your rights. Kavanaugh and conservatives on the Supreme Court have the power to make dangerous decisions for women and for American democracy at large.

You have the power to advocate against these decisions through your vote. Make sure you use it.

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