Abortion, Justice Kennedy, and Judge Kavanaugh
Legal Sidebari
Abortion, Justice Kennedy, and Judge
Kavanaugh
August 8, 2018
In 1992, nearly 20 years after it concluded in Roe v. Wade that the Constitution protects a woman’s
decision to terminate her pregnancy, the Supreme Court in Planned Parenthood of Southeastern
Pennsylvania v. Casey adopted a new standard for reviewing the constitutionality of abortion regulations.
Under this new standard, announced in a joint opinion written by Justices Sandra Day O’Connor, Anthony
Kennedy, and David Souter, a reviewing court must consider whether an abortion regulation imposes an
“undue burden” on a woman’s ability to have an abortion before fetal viability, the gestational point when
a fetus is able to live outside the mother’s womb with or without artificial assistance. In the years that
have followed, the Court has applied and further explained the undue burden standard in several
subsequent cases. With the recent retirement of the last remaining Justice on the Court from the Casey
plurality, questions have arisen about the future of the Court’s abortion jurisprudence.
This Legal Sidebar addresses these questions by first reviewing the undue burden standard and generally
discussing Justice Kennedy’s views on the standard in the case law that has developed since Casey. The
Sidebar then, in light of President Trump’s July 9, 2018 nomination of Judge Brett Kavanaugh to replace
Justice Kennedy, examines Judge Kavanaugh’s only substantive abortion opinion: a dissent in the 2017
case from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), Garza v. Hargan.
Finally, as lower courts continue to apply the undue burden standard to new abortion regulations, the
Sidebar concludes by noting some of the abortion cases that the Supreme Court could possibly review in
the near future.
Casey and the Undue Burden Standard. While the Supreme Court in Roe recognized that a woman has
a constitutionally protected right to decide to terminate her pregnancy, it also maintained that this right
was not unqualified and had to be considered against important state interests in promoting maternal
health and protecting potential life. The Roe Court held that at certain points during a woman’s pregnancy
these interests become sufficiently compelling to sustain regulation of the procedure, establishing a
trimester framework to examine such regulations. Finding that an abortion is no more dangerous to
maternal health than childbirth in the first trimester of a woman’s pregnancy, the Court concluded that the
compelling point for regulating abortion to further a state’s interest in maternal health was at
approximately the end of the first trimester. Until that point, the abortion decision and its effectuation was
left exclusively to the medical judgment of the pregnant woman’s doctor. The compelling point with
respect to the state’s interest in potential life was at viability. At that point, the Court indicated that a state
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could regulate and even proscribe the availability of an abortion, except when necessary to preserve the
life or health of the mother.
In Casey, a plurality of the Court rejected the trimester framework established in Roe, explaining that “in
its formulation [the framework] misconceives the pregnant woman’s interest . . . and in practice it
undervalues the State’s interest in potential life[.]” In its place, the plurality adopted the undue burden
standard, maintaining that the standard recognized the need to reconcile the government’s interest in
potential life with a woman’s right to decide to terminate her pregnancy. While Roe generally restricted
the regulation of abortion during the first trimester, Casey emphasized that not all of the burdens imposed
by an abortion regulation were likely to be undue. Under Casey, an undue burden exists if the purpose or
effect of an abortion regulation is “to place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.”
In adopting the new undue burden standard, Casey nonetheless reaffirmed the essential holding of Roe,
which the plurality described as having three parts. First, a woman has a right to choose to have an
abortion prior to viability without undue interference from the state. Second, the state has a right to
restrict abortions after viability so long as the regulation provides an exception for pregnancies that
endanger a woman’s life or health. Third, the state has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus.
After applying the undue burden standard in Casey, four provisions of the Pennsylvania Abortion Control
Act were upheld. The law’s 24-hour waiting period requirement, its informed consent provision, its
parental consent provision, and its recordkeeping and reporting requirements were found to not impose an
undue burden. While the plurality acknowledged that these requirements, notably the 24-hour waiting
period, could delay the procedure or make an abortion more expensive, it nevertheless concluded that
they did not impose an undue burden. In addition, the plurality emphasized that “under the undue burden
standard a State is permitted to enact persuasive measures which favor childbirth over abortion even if
those measures do not further a health interest.”
The law’s spousal notification provision, which required a married woman to tell her husband of her
intention to have an abortion, did not survive the undue burden analysis. A majority of the Court
maintained that the requirement imposed an undue burden because it could result in spousal abuse and
discourage a woman from seeking an abortion: “The spousal notification requirement is thus likely to
prevent a significant number of women from obtaining an abortion. It does not merely make abortions a
little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.”
In the wake of Casey, Justice Kennedy’s voice in the Court’s abortion cases was particularly notable. In
his abortion opinions, Justice Kennedy, continued to emphasize the government’s “critical and legitimate
role in legislating on the subject of abortion[.]” For example, eight years after Casey, in dissent in
Stenberg v. Carhart, Justice Kennedy maintained that a Nebraska law prohibiting the so-called “partial-
birth” abortion procedure was legitimate and did not impose an undue burden. In Stenberg, the Court
invalidated the law on the grounds that it (1) lacked an exception that would allow the procedure to
protect a woman’s health and (2) imposed an undue burden by appearing to prohibit both the “partial-
birth” abortion procedure and the “dilation and evacuation” (D&E) procedure, the most common second
trimester abortion procedure. In his dissent, however, Justice Kennedy questioned the Court’s
understanding of what abortion procedures the Nebraska law prohibited, maintaining that a
“commonsense understanding of the statute’s reference to ‘partial-birth abortion’ demonstrates its
intended reach and provides all citizens the fair warning required by the law.” Criticizing the Court’s
decision, Justice Kennedy contended that it stemmed “from misunderstanding the record,
misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in
conflict with settled rules.”
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The government’s ability to regulate the “partial-birth” abortion procedure was examined again seven
years later in Gonzales v. Carhart. In Gonzales, the Court considered whether the federal Partial-Birth
Abortion Ban Act (PBABA) imposed an undue burden on a woman’s ability to obtain an abortion.
Writing for the Court, Justice Kennedy once again acknowledged that the government has a “legitimate
and substantial interest in preserving and promoting fetal life[.]” Justice Kennedy emphasized, however,
that this interest could not lead to the adoption of regulations that have the purpose or effect of placing a
substantial obstacle in the path of a woman seeking to terminate a pre-viable fetus. Discussing Casey and
the undue burden standard, Justice Kennedy explained: “Casey, in short, struck a balance. The balance
was central to its holding.”
Applying the undue burden standard to the PBABA, the Court concluded that the law did not impose such
a burden because it restricted only the “partial-birth” abortion procedure and other alternative procedures
remained available to women seeking an abortion. Moreover, the Court maintained that the government
“may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its
legitimate interests in regulating the medical profession in order to promote respect for life, including life
of the unborn.” Notably, the Court did not find that the PBABA, by lacking an exception to protect a
woman’s health, imposed an undue burden. The Court acknowledged that such an exception would be
required if the PBABA subjected women to significant health risks. However, because there was medical
uncertainty about the law ever imposing such risks, the Court maintained that there was a sufficient basis
to conclude, at least in a facial challenge of the PBABA, that the law did not impose an undue burden.
In the Court’s most recent substantive abortion case from 2016, Whole Woman’s Health v. Hellerstedt,
Justice Kennedy joined a majority that, like Gonzales, emphasized the need to balance the benefits and
burdens of an abortion regulation when applying the undue burden standard. In Whole Woman’s Health,
the Court evaluated two Texas requirements that applied to physicians who perform abortions and to
facilities where the procedure is performed: a hospital admitting privileges requirement for abortion
doctors and a requirement that an abortion facility satisfy the same standards as an ambulatory surgical
center (ASC). Writing for the Court, Justice Stephen Breyer maintained that “[t]he rule announced in
Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the
benefits those laws confer.” In Whole Woman’s Health, the Court evaluated these benefits relative to
Texas’s preexisting abortion regulations for doctors and facilities.
The Court in Whole Woman’s Health heavily relied on the district court’s factual findings when balancing
the Texas law’s benefits and burdens. With regard to the admitting privileges requirement, the Court
weighed (1) the potential benefit that the requirement would ensure easy access to a hospital if there were
complications against (2) the concerns that the requirement would result in the closure of abortion
facilities and increased driving distances for those seeking an abortion. Because the record evidence
indicated that complications were rare, the Court concluded that the requirement did not help to cure a
significant health-related problem. Rather, the Court determined that the requirement placed a substantial
obstacle in the path of a woman seeking an abortion by closing approximately half of Texas’s abortion
facilities.
After considering the record concerning the ASC requirement, the Court concluded that this requirement
also imposed an undue burden. Citing the district court’s determination that the requirement did “not
benefit patients and [was] not necessary,” the Court also described the cost of complying with the
requirement, the closure of numerous abortion facilities, and the inability of the remaining facilities to
accommodate an increased number of patients. As a result of these burdens, the Court maintained that the
ASC requirement posed a substantial obstacle to women seeking abortions.
Since Roe, the Court has continued to recognize both a constitutionally protected right to decide to
terminate a pregnancy and the government’s ability to regulate the availability of abortion in a manner
that does not impose an undue burden on a woman seeking the procedure. Whole Woman’s Health
provided guidance to courts that must evaluate whether an abortion regulation actually imposes an undue
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burden. Based on the Court’s decision, it appears that record evidence and the effect a regulation has on
the procedure’s availability will be critical in weighing the regulation’s benefits and burdens relative to
existing regulations, and determining whether it is constitutional. However, given the Court’s limited
abortion jurisprudence since Casey and the newness of Whole Woman’s Health, additional decisions may
be needed to further clarify the balancing test the undue burden standard requires.
Garza v. Hargan. Judge Kavanaugh’s nomination to replace Justice Kennedy on the Supreme Court has
focused attention on Judge Kavanaugh’s writing and speeches on abortion. Judge Kavanaugh has
commented on Roe and Casey in some of his speeches, including a 2017 address at the American
Enterprise Institute. Perhaps most notably, however, in October 2017, Judge Kavanaugh authored a
dissenting opinion in Garza v. Hargan, a case involving abortion access for a detained unaccompanied
alien minor. In the fall of 2017, the Department of Health and Human Services (HHS) denied 17-year-old
Jane Doe (J.D.) access to an abortion, citing its policy that federally funded detention shelters are
prohibited from taking any action to “facilitate” an abortion without the approval of the Director of
HHS’s Office of Refugee Resettlement (ORR). Although the government would not have been
responsible for paying for the procedure or transporting J.D. to obtain it, the ORR Director indicated that
she could have an abortion under only two circumstances: following her release into the custody of an
HHS-approved sponsor or by voluntarily returning to her home country. Abortion is prohibited in J.D.’s
home country, however, and efforts to locate a sponsor for J.D. were unsuccessful. Consequently, J.D.
filed a lawsuit in the D.C. federal district court, arguing that the HHS policy imposed an undue burden on
her ability to obtain an abortion.
The federal district court granted J.D.’s application for a temporary restraining order (TRO) and directed
HHS to transport her or allow her to be transported to an abortion provider. The government filed an
emergency motion to stay the TRO, and a divided three-judge panel of the D.C. Circuit (with Judge
Kavanaugh in the majority) vacated the order, stating that HHS’s sponsorship requirement did not impose
an undue burden “so long as the process of securing a sponsor . . . occurs expeditiously.” While the
government made other arguments on appeal, including that the policy prevented the facilitation of
abortion by the government and that the policy did not violate J.D.’s rights because she was free to return
to her home country, no judge appeared to accept that argument. Instead, the panel directed the district
court to issue an 11-day deadline for HHS to secure a sponsor for J.D.
In a dissenting opinion, Judge Patricia Millett contended that the government’s actions imposed an undue
burden on J.D.’s ability to obtain an abortion: “The government’s refusal to release J.D. from custody is
not just a substantial obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.’s right to
make her own reproductive choice.” Judge Millett maintained that the government’s unwillingness to
release J.D. because it could not locate a sponsor for her increased health risks, likely making it more
difficult for J.D. to obtain an abortion because of the fetus’s advancing age. Judge Millett also questioned
the need for a sponsor when J.D. had (1) already been appointed a guardian ad litem who likely was
involved in her abortion decision, and (2) satisfied state law requirements that permit a minor to have an
abortion without parental involvement.
J.D. requested a rehearing en banc shortly after the panel decision was issued. In a per curiam opinion, the
D.C. Circuit vacated the panel decision “substantially for the reasons set forth” in Judge Millett’s dissent.
In a concurring opinion, Judge Millett reiterated her position that the sponsorship requirement imposed an
undue burden on J.D.’s ability to obtain an abortion. In particular, Judge Millett criticized the panel’s
determination that there was no such burden when the requirement occurs “expeditiously.” Citing HHS’s
nearly seven-week, unsuccessful search for a sponsor, Judge Millett contended: “Tacking on another
eleven days to an already nearly seven-week sponsorship hunt – that is, enforcing an almost nine week
delay before J.D. can even start again the process of trying to exercise her right – is the antithesis of
expedition.”
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Judge Kavanaugh dissented from the D.C. Circuit’s en banc decision in Garza, criticizing what he
maintained was the majority’s recognition of a new “right for unlawful immigrant minors in U.S.
Government detention to obtain [an] immediate abortion on demand[.]” Judge Kavanaugh contended that
the sponsorship requirement did not impose an undue burden on J.D. “so long as the transfer is
expeditious.” Because J.D. was expected to be transferred to a sponsor within 11 days after the three-
judge panel’s decision, and the government agreed that she could obtain an abortion immediately after the
transfer, Judge Kavanaugh determined that the sponsorship requirement was sufficiently expeditious.
Notably, Judge Kavanaugh also indicated that the government could not use the transfer process “as some
kind of ruse to unreasonably delay the abortion past the point where a safe abortion could occur.”
Judge Kavanaugh recognized the involvement of a sponsor in the unaccompanied minor’s abortion
decision as its primary benefit:
The minor is alone and without family or friends. She is in a U.S. government detention facility in
a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life
decision. Is it really absurd for the United States to think that the minor should be transferred to her
immigration sponsor – ordinarily a family member, relative, or friend – before she makes that
decision?
While acknowledging that Garza presented the court with a “new situation not yet directly confronted by
the Supreme Court,” the nominee’s opinion cited a variety of cases in which the Court has upheld
abortion regulations that “entail some delay,” such as mandatory waiting periods and parental notification
requirements aimed at promoting the state’s interest in potential life. According to Judge Kavanaugh, the
panel decision allowing the government additional time to find a sponsor for J.D. was analogous to these
kinds of regulations, at least to the extent they could delay the availability of an abortion. Ultimately, the
nominee viewed the majority decision to be “inconsistent with the precedents and principles of the
Supreme Court . . . allowing the Government to impose reasonable regulations so long as they do not
unduly burden the right to abortion that the Court has recognized.”
Nonetheless, it is unclear whether the panel’s allowance for an additional 11 days for the government to
act is the only factor that should be considered under the undue burden test. In this vein, the concurring
opinion viewed the undue burden calculus in a very different way from Judge Kavanaugh. Judge Millett’s
concurring opinion considered the “clock” for the undue burden consideration with respect to J.D. starting
long before the panel’s allowance of additional time for the government to find a sponsor. Moreover,
Judge Millett also viewed the additional challenges associated with finding a sponsor as relevant to the
undue burden analysis. For example, Judge Millett’s concurrence noted the burdens that could be imposed
if a sponsor cannot be located, such as the possible health risks associated with a prolonged pregnancy. In
addition, the concurrence recognized that in Texas, where J.D. was detained, an abortion is generally
prohibited once a fetus reaches a post-fertilization age of 20 weeks, and the abortion facility closest to
J.D. would not perform the procedure once she was 17- or 18-weeks pregnant. Judge Millett noted that
another abortion facility that would perform the procedure later in a woman’s pregnancy was reportedly
hundreds of miles away, amounting to a similar burden as the one created by the law invalidated in Whole
Woman’s Health.
J.D. obtained an abortion soon after the D.C. Circuit’s en banc decision. Nevertheless, in light of ongoing
litigation involving abortion access and other detained unaccompanied alien minors, the government
petitioned the Supreme Court for review of that decision. In June, the Court vacated the decision on the
grounds that J.D.’s abortion rendered the relevant claim moot: “When a civil case from a court in the
federal system . . . has become moot while on its way here, this Court’s established practice is to reverse
or vacate the judgment below and remand with a direction to dismiss.” (internal quotation marks omitted).
Ultimately, it is very difficult to draw firm conclusions about Judge Kavanaugh’s views on Casey and the
undue burden standard from his only opinion on the subject. On one hand, Judge Kavanaugh in Garza
came down on the side of upholding HHS’s policy based on the Court’s older precedent upholding laws
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promoting the state’s interests in protecting potential life, perhaps suggesting a willingness to grant the
government more leeway in regulating abortion. At the same time, while newer cases like Whole
Woman’s Health suggest that an abortion regulation’s benefits and burdens should be viewed collectively
in determining whether the government has imposed an undue burden on the right to terminate a
pregnancy, it is unclear how Whole Woman’s Health should be squared with the Court’s older case law
that largely approves of abortion regulations that provide for short-term delays for reasons of promoting
child birth over abortion. Garza, as noted by Judge Kavanaugh was a “novel and highly fraught case” that
came to the D.C. Circuit in an “emergency posture.” Moreover, the D.C. Circuit had to interpret how the
Court’s abortion jurisprudence applied with respect to how the government was treating one individual,
even though this jurisprudence has tended to involve facial challenges to state or federal abortion
regulations. As a result, it is difficult to make any firm pronouncements about Judge Kavanaugh’s views
on abortion jurisprudence based on Garza alone.
Abortion and a New Supreme Court. Justice Kennedy’s retirement has prompted questions about how a
newly composed Supreme Court might evaluate abortion regulations in the future. It should be noted that
only one member of the current Roberts Court has criticized Roe, Casey, and the undue burden standard.
In a dissenting opinion in Stenberg, Justice Clarence Thomas described the standard as “illegitimate” and
“fabricated,” noting “[t]he standard is a product of its authors’ own philosophical views about abortion . .
. and has no origins in or relationship to the Constitution[.]” In dissent in Whole Woman’s Health, Justice
Thomas likewise described the right to abortion as “invented” by the Court in Roe. Nonetheless, as
demonstrated by the narrow majorities in Stenberg, Gonzales, and Whole Woman’s Health, the Court
tends to divide closely on issues related to abortion, and it is conceivable that the addition of a new Justice
could alter how the Court adjudicates abortion matters going forward.
Although the Court has not substantively examined an abortion regulation since Whole Woman’s Health,
lower courts have continued to review a variety of state laws that regulate the procedure. In June 2018, for
example, a federal district court enjoined an Arkansas law that requires doctors who perform medication
abortions to contract with a physician who has admitting and gynecological/surgical privileges at
designated hospitals. The court’s decision has been appealed to the Eighth Circuit, and it may be possible
that the appellate court’s decision is further appealed to the Supreme Court.
Lower courts have also ruled on state laws that prohibit the performance of an abortion once a fetal
heartbeat is detected or the fetus reaches a specified gestational age. In general, these laws restrict the
procedure at gestational ages younger than 24 weeks, a point in fetal development that was associated
with viability in Roe. The Eighth and Ninth Circuits have respectively invalidated laws from Arizona,
Arkansas, and Idaho, citing the principle that viability is the earliest point at which a state’s interest in
fetal life may justify a wholesale ban on abortions. In Isaacson v. Horne, for example, the Ninth Circuit
invalidated an Arizona law that prohibited the performance of an abortion once the fetus reached a
gestational age of 20 weeks, stating: “The twenty-week law is . . . unconstitutional under an unbroken
stream of Supreme Court authority, beginning with Roe and ending with Gonzales. Arizona simply cannot
proscribe a woman from choosing to obtain an abortion before the fetus is viable.” Notably, the Ninth
Circuit contended that the “‘undue burden’/‘substantial obstacle’ mode of analysis has no place” where
the state is prohibiting pre-viability abortions and not just imposing conditions on the procedure.
Although the Supreme Court declined to review Isaacson and the Eighth Circuit’s invalidation of
Arkansas’s fetal heartbeat law, it is conceivable that a pre-viability abortion ban might soon be before the
Court again. A federal district court in Mississippi recently ordered discovery in a case involving a
Mississippi law that prohibits the performance of an abortion once the gestational age of the fetus is 15
weeks. The plaintiffs in Jackson Women’s Health Organization v. Currier limited discovery in the case to
evidence concerning whether viability occurs before or after 15 weeks. The defendants had also sought
evidence related to possible pain experienced by a pre-viable fetus. Nevertheless, a determination that
viability occurs at a gestational age as early as 15 weeks could prompt other states to adopt a similar ban
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on the procedure. Such a determination might also invite review by the Court given its prior
identification of viability at between 24 and 28 weeks in Roe. In short, Judge Kavanaugh, if he were to be
elevated to the Supreme Court, could soon hear a number of cases that further explore the Constitution
and the right to an abortion.
Author Information
Jon O. Shimabukuro
Legislative Attorney
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