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What Brett Kavanaugh’s Confirmation Really Means for Abortion Access

Class privileged white women will likely have their abortion access far less infringed upon than poor people and women of color.

By Muqing M. Zhang

On Oct. 6, 2018, Brett Kavanaugh was confirmed to the Supreme Court despite testimony by Dr. Christine Blasey Ford that Kavanaugh sexually assaulted her and despite two other women, Deborah Ramirez and Julie Swetnick, coming forward stating that Kavanaugh has a history of sexual violence. Since before and after the confirmation, serious concerns were raised with regards to what will happen to abortion access.

While many publications have correctly argued that abortion access will be further restricted, an understanding of the hugely different impact that greater abortion restrictions will have on privileged versus marginalized people has been lost. Abortion access will not be restricted evenly across the population of people who can get pregnant. Instead, the harmful impact will be highly disparate, landing largely on those who lack the class and race privilege to circumvent the flood of restrictive abortion laws that are coming, while class privileged white women, many of whom supported Trump and Kavanaugh, will be able to evade the brunt of these laws.

Kavanaugh’s oppositional stance on abortion is clear. In a 2017 speech to the American Enterprise Institute, Kavanaugh argued against the “tide of free willing judicial creation of unenumerated rights” when praising Associate Justice William Rehnquist’s dissent in Roe, which held that the right to abortion fell under the umbrella of the right to privacy. It is highly likely that Kavanaugh will vote with the five-member conservative majority against the four-member liberal minority of the Supreme Court when it comes to abortion.

Abortion access was first legalized in Roe v. Wade in 1973, in which the Supreme Court legalized abortion by ruling that the right to abortion was encompassed within the right to privacy, which was an already established right. The court in Roe established a standard based on the different trimesters to be applied to every case that evaluated whether a law or regulation that restricted access to abortion should be struck down or not. The Roe standard was eventually replaced in 1992 by Planned Parenthood v. Casey, in which the Supreme Court reaffirmed Roe’s core ruling that legalized abortion but created the standard that exists today with regards to evaluating the constitutionality of laws that restrict abortion. The Casey standard, also referred to as the “undue burden” standard, states that if a “regulation has the purpose or effect of placing a substantial obstacle in the path of women seeking abortion,” then the court will strike down the regulation or law.

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While some have claimed that Roe v. Wade will be fully overturned and abortion will be made illegal, that is still a drastic and unlikely scenario. Instead, the Supreme Court, with Kavanaugh on board, would likely incrementally make it easier for abortion restriction laws to be upheld, in effect eliminating access to abortion for certain populations of women without outright outlawing abortion across the board. There are currently 14 abortion related cases that could go to the Supreme Court, and conservative states are right now likely writing a flurry of new restrictive abortion laws to pass. The Supreme Court would take cases in which they determine the constitutionality of these abortion restriction laws and use them to incrementally make it easier for abortion restriction laws to pass the “undue burden” standard, by upholding progressively more and more restrictive abortion laws. Thus, this would make it easier for subsequent more and more restrictive abortion restriction laws to be passed and upheld.

This roundabout way of eliminating abortion access but not banning it across the board creates an inequity in abortion access, both regionally and across class and race lines. The states in which there is greater anti-abortion sentiment amongst lawmakers will have greater abortion restrictions. These abortion restrictions—such as restricting insurance coverage of abortion, requiring mandatory ultrasounds and waiting periods, mandatory counseling, or requiring that an abortion provider have hospital admitting privileges—will ultimately most harm people who do not have the wealth, job freedom, familial support, and white privilege to navigate and dodge the hurdles these laws pose.

These structural barriers, which will proliferate in number and in severity in post-Kavanaugh Supreme Court abortion rulings, pose hurdles that not all women have the privilege and resources to get through. This roundabout way of gradually eliminating access to abortion creates a twisted filtering system, in which only the most class privileged people with greatest resources can overcome the hurdles, while those who, for example, can not afford to take multiple days off of work, can not afford the gas to drive long distances, or do not have the educational or language ability to find an abortion provider among the dwindling pool of providers can not escape the byzantine web created by these abortion restrictions. Thus, the cruel irony is that the class privileged white women who supported Trump and Kavanaugh will likely have their abortion access far less infringed upon than the poor people and women of color who fought hard against Kavanaugh’s confirmation.

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