Where Brett Kavanaugh Stands on Five Major Feminist Issues

This post is modified from a letter submitted by the Feminist Majority Foundation to the Senate Committee on the Judiciary leadership. You can read the original letter here.

Nominees to the U.S. Supreme Court must meet the highest standards of character and integrity. The decisions made by the Court impact almost every aspect of our daily lives, and the public must be secure in knowing that the nominee is willing to protect the rights of all people, not just the powerful, and uphold the rule of law.

Judge Brett Kavanaugh does not meet these requirements.

Protestors at a #WeObject rally against Trump’s Supreme Court nominees. (NARAL Pro-Choice America)

Kavanaugh has been nominated to a lifetime appointment on our nation’s highest court, yet neither the Senate Judiciary Committee nor the public has had access to the full record of his time as White House staff secretary to President George W. Bush. But what we do know of Kavanaugh’s record shows that he is hostile to reproductive rights and the Affordable Care Act—and has a pattern of putting the concerns of corporations, the wealthy and the powerful over the interests of everyday people, with damaging consequences for women, workers, people of color and other vulnerable communities.

This nomination comes at a critical time for our democracy. Our President is the subject of a special investigation into foreign interference in the 2016 Presidential Election. At least five people associated with President Trump have been found guilty of, or have pled guilty to, various federal crimes, including former national security advisor Michael Flynn, former Trump policy advisor George Papadopoulos, former deputy campaign chairman Rick Gates, former campaign chairman Paul Manafort and, most recently, the President’s former attorney Michael Cohen. In addition, several current and former members of the Trump Administration have been under scrutiny for behavior the average American would consider inappropriate, including misuse of taxpayer money, alleged swindling of business associates, domestic violence and sexual harassment and misconduct.

The Supreme Court has the ability to shape our rights, our laws and our democracy for generations to come; we therefore need a justice who will uphold the rule of law, for everyone, and has demonstrated the willingness and ability to be an independent check on presidential power. Now more than ever, the public needs a Supreme Court Justice who will uphold the Constitution and protect the rights of all people.

Brett Kavanaugh is not that judge. Below, we explore just five ways his confirmation would impact women’s lives—and endanger their equality.

Access to Abortion and Birth Control

The right to access a full range of reproductive healthcare services, including abortion and birth control, is central to the lives of millions of women in the United States. The availability of affordable modern contraception has contributed to tremendous gains in women’s educational and economic advancement in the U.S. and has had positive impacts on both infant and maternal health. Birth control has allowed women to participate more fully in the social and economic life of the nation and has given women the ability to more freely determine their destinies by allowing them greater control over whether and when to have a child; access to safe, legal abortion has given women greater ability to make personal life and health decisions that are best for them—and often, their existing families.

Before the Supreme Court’s landmark decision in Roe v. Wade, which decriminalized abortion throughout the country, illegal abortions were common. According to the Guttmacher Institute, in the 1950s and 1960s, estimates of the number of illegal abortions were as high as 1.2 million per year.

Although not all illegal abortions ended in death, the number of deaths from illegal abortion was high. In 1965, for example, illegal abortion accounted for 17 percent of all deaths attributed to pregnancy and childbirth that year. That number, however, only includes those deaths that were officially reported as related to abortion; the real number is likely higher. Women forced to receive care clandestinely also suffered serious health consequences, and hospital admissions for incomplete abortion or infection were also quite common. Women for whom pregnancy is a life-threatening health condition are also at grave risk when legal abortion is unavailable or restricted. Since Roe, however, the number of maternal deaths in the U.S. has plummeted.

Despite the right to abortion, access to abortion is still severely restricted for many people, and abortion rights are under constant threat in this country, putting women’s lives, their economic security and their health at risk. Poor women and women of color, for whom access to health care is already limited because of structural and other barriers, are disproportionately impacted by lack of abortion access.

In this climate, President Trump has consistently indicated that he would only nominate a Supreme Court justice who would overturn Roe. Kavanaugh’s record both on and off the bench clearly demonstrates that he could be the justice to do it. Just last year, Kavanaugh gave a speech at the American Enterprise Institute in which he strongly implied that Roe should be overturned. During the speech, Kavanaugh, while praising former Chief Justice William Rehnquist for “stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” noted that the former Chief Justice had been unsuccessful in curtailing these rights in Roe. Other unenumerated rights, of course, include the right to use birth control and the right to marriage equality.

In his only case addressing abortion rights, Garza v. Hargan, Kavanaugh twice tried to block a young immigrant woman in Texas from obtaining an abortion. Although the full D.C. Circuit Court of Appeals eventually allowed Jane Doe to have the abortion, Kavanaugh would have continued to delay the procedure, threatening to push Jane Doe pass the 20-week limit on abortion in Texas. In his dissent, Kavanaugh claimed that the court had created a right “to obtain immediate abortion on demand,” ignoring that Jane Doe had to jump through numerous hoops to access abortion—including a judicial order allowing her to consent to the abortion on her own—and that the government had unnecessarily delayed the procedure for weeks.

As a judge on the Court of Appeals, Kavanaugh is bound by Roe, even though he tried to undermine its promise. If he is confirmed as a Supreme Court justice, Kavanaugh would not be bound; he could provide the fifth vote to overturn Roe. But even if he did not overturn Roe outright, his record of hostility to abortion rights in Garza is a dark sign. Kavanaugh could rubber stamp so many abortion restrictions that Roe and the right to abortion would become meaningless.

If Roe were overturned, the right to privacy and personal liberty would be severely jeopardized, including the right to birth control. In particular, Griswold v. Connecticut and Eisenstadt v. Baird—two landmark Supreme Court cases that made birth control legal and accessible nationwide through the right to privacy—would be at stake, and Kavanaugh’s record is hostile to birth control access. In Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh argued in dissent that an employer’s religious beliefs should override an individual’s right to access birth control, a position that would allow rampant discrimination against women.

The Affordable Care Act and Access to Health Care

The Affordable Care Act (ACA) has allowed millions of people to gain access to health insurance coverage, making critically-needed healthcare services more available and ensuring coverage for certain care. The ACA requires that insurers provide essential health benefits, including maternity and newborn care, mental health treatment, prescription drug coverage, preventive services, chronic disease management, pediatric care and more. It has also ensured that people with pre-existing conditions have access to affordable coverage and provides protections against discrimination in healthcare on the basis of race, color, national origin, sex, age, or disability.

The ACA has been particularly beneficial for women. After passage of the ACA, uninsured rates for women of color, who face numerous healthcare disparities, dropped dramatically. The ACA also prohibits charging women more for the same health plans as men and has stopped insurance companies from treating women as pre-existing conditions, ending the practice of charging women more or denying coverage for prior pregnancies, Cesarean sections, or domestic or sexual violence.

Despite these benefits to everyday people, the ACA has been under constant attack. During his election campaign, President Trump promised that he would repeal the ACA and criticized Chief Justice John Roberts for not striking down the law. In a 2015 tweet, Trump wrote: “If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.”

As a federal appeals court judge, Kavanaugh has twice dissented in decisions upholding the ACA. These decisions suggest that if he were confirmed, Kavanaugh would repeal or otherwise undermine the ACA, putting the health of millions of people at risk. One of Kavanaugh’s former law clerks even wrote that Kavanaugh had provided a “roadmap” to the Supreme Court on finding the ACA unconstitutional.

Right now, a multi-state lawsuit challenging the constitutionality of the ACA and its protections for people with pre-existing conditions is making its way through the federal courts. The next Supreme Court justice may be the deciding vote on whether millions of people, including those with pre-existing conditions, continue to receive coverage and care.

Overturning the ACA would be disastrous for women’s health, leave the LGBTQ community vulnerable to healthcare discrimination and jeopardize treatment coverage for transgender individuals, people suffering from substance use disorder, as well as people living with HIV and other serious health conditions. Insurers could, once again, impose annual and lifetime caps on coverage, and healthcare would be out of reach for many, including those most in need of care.

Civil Rights and Equitable Workplaces

The Supreme Court plays an essential role in helping to ensure fairness in the workplace—something that is critically important for women, people of color, people with disabilities and LGBTQ individuals, all of whom have been historically marginalized in the public sphere. Kavanaugh’s record, however, reflects hostility toward both workers’ rights and basic civil rights.

Kavanaugh has repeatedly ruled against employees asserting claims of racial discrimination and has tried to make it more difficult for employees to have their cases heard in court. In one case, he would have blocked an African-American women fired from her job from having her day in court; in another, he would have prevented a black Muslim FBI agent of Jamaican descent from pursuing a retaliation claim. Although Kavanaugh has, on occasion, recognized the availability of racial discrimination claims—including in a concurring opinion in which Kavanaugh noted that a single incident of a supervisor calling an employee “the n-word” could create a hostile environment—his record suggests that he has adopted a narrow view of what constitutes racial discrimination that does not reflect the reality of people’s lives.

In a 1999 interview with the Christian Science Monitor, Kavanaugh remarked: “I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government.” The adoption of colorblindness theory, however, only hides the ways in which racism manifests in our institutions, systems and structures. Far from creating a more just society, colorblindness theory erases the experiences of people of color and prevents implementation of the remedial measures that would affirm the dignity, worth and constitutional and civil rights of all people. Such a perspective also suggests an inability to appreciate how racial discrimination intersects with sexism and other forms of discrimination.

Gun Violence

Gun violence is a deeply feminist issue, and a uniquely American crisis. According to a 2016 research study, about 4.5 million women in the U.S. have had an intimate partner threaten them with a gun and nearly 1 million have been shot, or shot at, by an intimate partner. Around 50 women per month in the U.S. are shot to death by an intimate partner, and domestic violence victims are five times more likely to be killed when their partners have a firearm. Women of color are at particular risk. Black women, for example, are twice as likely to be fatally shot by an intimate partner as white women. Overall, women in the U.S. are 11 times more likely to be murdered with a firearm than women in any of our peer nations.

Mass shootings are also often linked to violence against women. In at least 54 percent of mass shootings between 2009 and 2016, the shooters killed intimate partners or other family members. Reporting also shows a large number of mass shooters with a history of violence against women or girls, including the Virginia Tech shooter, the Isla Vista shooter and the Pulse Nightclub shooter.

Kavanaugh’s record suggests an extreme view of the Second Amendment that would block common-sense gun laws designed to keep people safe. In the 2011 case District of Columbia v. Heller, a panel of three judges ruled 2-1 that a D.C. ban on assault weapons and high-capacity magazines was constitutional. Kavanaugh dissented, reasoning that there was “no meaningful or persuasive constitutional distinction” between assault weapons and handguns, the latter of which were found to be constitutionally protected in a 2008 Supreme Court case brought by the same plaintiff.

It is deeply concerning that Kavanaugh does not appreciate a distinction between assault weapons and handguns—especially given that in the 2008 Heller case, the Supreme Court cautioned that even though it had overturned D.C.’s handgun ban, the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Sexual Harassment and Assault

The growing #MeToo movement in the U.S. has forced the country, once again, to reckon with our nation’s high rates of sexual harassment and assault. Though research on the prevalence of sexual harassment in the workplace is scarce, a recent online survey found that 81 percent of women have experienced some form of sexual harassment in their lifetime. Of that number, 77 percent had experienced verbal harassment, 51 percent had experienced unwelcome sexual touching and 27 percent had experienced a sexual assault. Looking specifically at workers, the Equal Employment Opportunity Commission (EEOC) determined that as many as 85 percent of women have been harassed at work.

Workplace sexual harassment can have multiple, cascading effects on women’s economic advancement and also causes emotional and psychological distress. Most people do not report sexual harassment at work. Reviewing the available data, the EEOC determined that between 87 to 94 percent of individuals do not file a formal complaint. These percentages may reflect the high levels of retaliation against those who do report. Up to 75 percent of employees who report sexual harassment face workplace retaliation, and many workers report that their claims were trivialized or that they faced hostility after speaking up.

The issue of workplace sexual harassment and assault are important in this context given Kavanaugh’s relationship to Judge Alex Kozinski, who left the U.S. Court of Appeals for the Ninth Circuit in disgrace in late 2017 after former clerks, law students and a fellow judge made over a dozen allegations of sexual harassment against him. Those allegations included unwanted sexual touching, asking for sex and asking clerks to watch pornography with him in chambers.

Kavanaugh clerked for Judge Kozinski and has reportedly remained close to him; Kozinski’s son even clerked for Kavanaugh in 2017-2018. The White House has claimed that Kavanaugh “had never heard any allegations of sexual misconduct or harassment” by Kozinksi before the Washington Post reported on the allegations, but many in the legal community have indicated that Kozinski’s behavior was an open secret. It is therefore extremely important for Kavanaugh to speak fully on exactly what he knew about Kozinski’s behavior, whether he recommended people to clerk for Kozinski knowing of his behavior and what, if anything, he has done to help the women who were harassed.

Senators should also ask whether Kavanaugh knew of, or was part of, Kozinski’s “Easy Rider Gag List,” which he used to share tasteless and sexually explicit “jokes” and material. The “gag list” reportedly included law clerks, federal judges, attorneys and journalists; clearly, engaging in this type of conduct would show incredibly poor judgment and would not demonstrate the type of character required for a member of the highest court in the nation.

Eleanor Smeal is president of the Feminist Majority Foundation and publisher of Ms.

Gaylynn Burroughs is policy director at the Feminist Majority Foundation.

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