Letter to US Senators - Oppose Kavanaugh's Supreme Court Nomination, Citing Threat to Women's Health

Letter

Dear Senator,

As members of the Pro-Choice Caucus, a coalition of the House of Representatives working to preserve, protect, and advance women's constitutionally protected reproductive rights, we write to express our strong opposition to the confirmation of Judge Brett Kavanaugh to be an Associate Justice of the Supreme Court of the United States.

There have now been multiple reports that Judge Kavanaugh attempted to sexually assault and harass young women as a young man. We, therefore, urge the Senate to consider the Judge's attitudes towards women and their constitutionally protected rights before elevating him to a lifetime appointment. Nearly one in three women will survive sexual assault or violence in their lifetimes. And according to the Rape, Abuse & Incest National Network (RAINN), two out of three sexual assaults go unreported, and survivors often choose not to report the assault out of fear of retaliation, escalation, shame, or not being believed. That is why we believe that there must be a full and independent investigation conducted into the allegations against the nominee. These accusations must be taken seriously and taken into account as part of his long judicial record of undermining women's autonomy.

It is clear from Judge Kavanaugh's record that he does not support a woman's constitutional right to choice. We are therefore extremely concerned about how he would rule on cases involving reproductive health care access and decision-making, including abortion care. The President campaigned on a promise to only nominate justices who would overturn Roe v. Wade "automatically" and Judge Kavanaugh has a record that demonstrates a hostility toward abortion, birth control, and the Affordable Care Act (ACA). For many communities, such as low-income, rural, immigrant, and communities of color, access to abortion care is already out of reach given significant barriers to care and state-level restrictions. Based on Judge Kavanaugh's past rulings, speeches, and writings, we firmly believe that Judge Kavanaugh will turn the balance of the Supreme Court against women's constitutional rights, including abortion-- a constitutionally protected right since 1973.

While every Supreme Court vacancy is significant, the stakes could not be higher in deciding who will replace Justice Kennedy. Without a fair-minded and independent nominee, the Court's balance will shift dramatically and threaten a host of hard won rights and liberties. While Kennedy did not always rule on the side of women, he played a historic role as the deciding vote in many important decisions. Not only did he help cement a person's right to continue or end a pregnancy in Planned Parenthood v. Casey, but he was the critical vote in 2016's Whole Woman's Health v. Hellerstedt, the most important abortion rights case in a generation. Justice Kennedy served as the deciding vote in a majority of the momentous cases of the past dozen years, so this nomination puts the rights of women across the country in danger. The next Supreme Court justice will cast the key vote in decisions that will shape people's freedom and opportunity to control their lives at the most basic level: their bodies, their families, and their future.

Just last year, Judge Kavanaugh voted to allow the federal government to block Jane Doe, an unaccompanied young woman in the Office of Refugee Resettlement's custody, from obtaining an abortion. Sitting on a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in Garza v. Hargan, Judge Kavanaugh signed an order allowing the federal government to continue blocking Jane Doe from accessing an abortion. Despite the time-sensitive nature of her case, the government continued to delay her access to care for almost a month. When the full Court of Appeals heard the case and reversed the panel, Judge Kavanaugh authored a dissent in which he used the incendiary and notoriously anti-choice phrase "abortion on demand" and accused the majority of creating a "new right." The Court, however, was applying the undue burden standard to an egregiously unconstitutional ban, holding that it is "settled, binding Supreme Court precedent" that "[s]etting up substantial barriers to the woman's choice violates the Constitution." This is a clear example of how Judge Kavanaugh has ruled in favor of government overreach to deny a person's access to safe, legal abortions.

In the 2015 Priests for Life v. United States Department of Health and Human Services, Judge Kavanaugh wrote a dissent that would have allowed employers' religious beliefs to override people's access to health care. Priests for Life involved a challenge to the process for opting out of the ACA's contraceptive coverage requirement, which requires health plans to cover the full range of FDA-approved birth control methods, alongside other women's preventive services, without out-of-pocket costs to the individual. The eight federal circuit courts of appeals to consider the issue, including Kavanaugh's own D.C. Circuit, flatly rejected the objecting organizations' challenges to the existing opt-out process. And yet, Judge Kavanaugh disagreed, accepting the claims that using the opt-out form to give notice to the insurer was a substantial burden on religious beliefs. Judge Kavanaugh's ruling would have left women without the birth control coverage they need. Judge Kavanaugh poses a great threat to an individual's right to basic health care.

Judge Kavanaugh has questioned an individual's right to autonomous medical decision-making. In 2007, Kavanaugh authored Doe ex rel. Tarlow v. D.C., holding that the plaintiffs, women with intellectual disabilities, had no liberty right to medical decision-making rooted in their right to bodily integrity. In that opinion, Judge Kavanaugh took a narrow approach to defining liberty, holding that the plaintiffs' right to express their wishes about whether to have surgery was not "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty," and their claim was thus "meritless." Two of the plaintiffs had been forced to have an abortion without any consideration of their wishes. In rejecting their claims, Kavanaugh did not address nor acknowledge in his opinion the nation's reprehensible history of government actions that deprive persons with disabilities of their rights of reproductive autonomy and medical decision-making. Kavanaugh's opinion shows that a narrow approach to liberty impacts rights across the board: not just the right to abortion, but also the right to make decisions about family and the right to bodily integrity, protected by the 14th Amendment.

Judge Kavanaugh's record also raises significant concerns about the future of health care access for millions of people. Because of the ACA, millions now have access to maternity care, prescription drugs, and guaranteed coverage for no-cost preventive services--and millions of people are no longer denied coverage or charged higher premiums because of their gender or pre-existing conditions. Judge Kavanaugh has demonstrated that he cannot be trusted with the responsibility of protecting this crucial program. Judge Kavanaugh's judicial record, as well as a law review article he wrote about the Supreme Court's decisions, make clear Judge Kavanaugh's contempt for the Affordable Care Act. InSeven Sky v. Holder, Kavanaugh characterized the law as a significant expansion of federal power, calling it "unprecedented on the federal level in American history." Judge Kavanaugh also endorsed an expansive view of presidential authority, arguing that the president has the power to unilaterally decline to enforce provisions of the ACA. In a law review article authored by Judge Kavanaugh, he criticized the Supreme Court's decision in King v. Burwell. Under Kavanaugh's strict reading of the law, more than 6 million people in 34 states would be cut off from financial assistance to pay for health insurance.

Moreover, the hearing to fill the vacancy on the Supreme Court was scheduled in haste, before Senators received full information about Judge Kavanaugh's record. This prevented Senators from fulfilling their "advice and consent" duties and deprived them of their authority to perform a critical check on both the judiciary and executive branches. More than one million pages from Judge Kavanaugh's time as White House staff secretary were excluded from the records request, including material from a time when President Bush signed a federal abortion ban. It is imperative that Senators meet their obligation to review and question a nominee in an unhurried and careful manner. Anything less sets a dangerous precedent for the future of the Supreme Court and the spirit of open inquiry that sustains it. The recent reports of sexual assault by multiple women underscores this point, and further suggests that Judge Kavanaugh would not have women's best interests in mind should he serve on the highest court in the land.

Given the President's litmus test, and Judge Kavanaugh's well-documented record restricting reproductive health, it is clear that a vote for Judge Kavanaugh is a vote against women's autonomy and reproductive health. We therefore strongly oppose any vote confirming Judge Kavanaugh to the Supreme Court.

Sincerely,