Report: Kavanaugh urged Supreme Court to leave path open for Louisiana abortion law
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July 30, 2020 (LifeSiteNews) – When the U.S. Supreme Court voted to strike down a Louisiana abortion regulation last month, Justice Brett Kavanaugh urged his colleagues to write the opinion in such a way as to allow the law to be revived in a new trial, according to a new report on private memos among the nation’s most powerful judges.
Last month, the court voted 5-4 to strike down a Louisiana law requiring abortionists to make arrangements for admitting women to nearby hospitals in cases of emergencies. Chief Justice John Roberts joined the liberal majority, reversing his own past decision to uphold a similar Texas law on the claim that the pro-abortion Texas ruling was now a binding precedent.
Kavanaugh, President Donald Trump’s second appointee to the Supreme Court, joined Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in dissent, arguing for himself that “additional fact-finding” was needed to “properly evaluate” whether abortionists could have obtained admitting privileges under the law.
On Wednesday, CNN’s Joan Biskupic reported that Kavanaugh argued in private memos to his fellow justices that between the court voting 5-4 against the law and Justice Stephen Breyer completing his majority opinion, Kavanaugh lobbied his fellow justices to send the case back to a lower court for additional fact-finding.
“Kavanaugh's new suggestion would keep the law blocked in the short term while the case moved back through the legal system,” Biskupic wrote. “In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close.”
“There were no takers among the justices for Kavanaugh's suggested solution,” she continued. “The liberals were locked in, and the three other conservatives were ready to dissent with no equivocation.” Kavanaugh went on to express his preferred outcome in his aforementioned dissenting opinion.
CNN’s revelation does little to clarify, in either direction, what Kavanaugh would ultimately do when asked to rule directly on Roe v. Wade’s merits. He went out of his way to push for a path through which the admitting privilege law could survive, but also declined to join the court’s conservatives in simply upholding the law, preferring instead to write an opinion that accepted the underlying logic of the Texas precedent.
In an April opinion on an unrelated case, Kavanaugh elaborated on his thought process for when longstanding precedents (such as Roe) should be left alone or overturned, arguing that it wasn’t enough for a past case to be wrongly decided. Rather, he argued, justices should make that decision based on criteria such as whether a precedent is “not just wrong, but grievously or egregiously wrong”; whether it “caused significant negative jurisprudential or real-world consequences” for both the legal system and the citizenry; and whether overturning it would “unduly upset” people’s reliance on it.
Such ongoing questions as to whether conservatives can trust Republican-appointed justices to deliver the rulings for which they support Republican presidents recently led Sen. Josh Hawley, R-Missouri, to announce that he will only vote for future Supreme Court picks who have opposed Roe on the record before their confirmation hearings. So far, no other Republican senator has echoed his pledge.