What's At Stake?
Our rights hang in the balance. On July 9, 2018, President Trump nominated Brett Kavanaugh to fill retiring Justice Anthony Kennedy’s seat on the U.S. Supreme Court. With this nomination, President Trump could shift the balance of the Court, dramatically undermining women’s rights, civil rights and human rights for generations.
Justice Kennedy, although a Republican appointee, provided the determining swing-vote on a number of key Supreme Court decisions on abortion rights, LGBTQ equality, and affirmative action. But Brett Kavanaugh is no swing-vote; he is a hard-line, right-wing, controversial appointee
Roe at Risk
President Trump has consistently indicated that he would only appoint Supreme Court Justices who would overturn Roe v. Wade, which would result in criminalizing abortion in over half the country. This means states could prosecute and imprison doctors and nurses who perform abortions, as well as women who have them. Kavanaugh’s record clearly demonstrates that he passes the test.
In his only abortion case, Kavanaugh issued a decision blocking Jane Doe, 17-year old unaccompanied immigrant being held in a federal detention facility, from obtaining an abortion, a ruling that was eventually reversed. In his dissent, Kavanaugh claimed that the his colleagues in the majority on 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 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 5th vote to overturn Roe.
Affordable Care Act and Access to Healthcare
During the campaign, Trump promised that he would repeal the Affordable Care Act (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.”
Kavanaugh is just that judicial nominee. In two separate cases, his colleagues on the DC Circuit Court of Appeals upheld the constitutionality of the ACA, but Kavanaugh refused, suggesting that he could very well meet Trump’s litmus test for overturning the healthcare law. He has already sought to undermine key provisions of the ACA in 2015 when he argued that employers — especially religiously affiliated ones — have a right to deny birth control insurance coverage to their employees.
Kavanaugh’s position matters. Right now, there is a case, filed by Texas and 19 other states, challenging the constitutionality of the ACA. In particular, the case is challenging protections for people with pre-existing conditions. The Trump Administration, which filed a brief in the case, has taken the position that the ACA is unconstitutional, and the case is making its way through the federal courts.
In a country where being a woman was seen as a pre-existing condition before the ACA, Kavanaugh’s vote against the ACA would leave countless women uninsured and indebted. Remember that before the ACA, women were typically charged more than men for health insurance just for being women. Today, not only is gender-based pricing illegal, but insurance companies are required to cover birth control and maternity care, both at risk under Kavanaugh. Overturning the ACA would also leave the LGBTQ community vulnerable to insurance discrimination and jeopardize treatment coverage for transgender individuals and the one million people living with HIV in the United States.
Unchecked Presidential Power
These are unusual times. The President of the United States is the subject of a special investigation into Russia’s interference in the 2016 election. That investigation has so far led to the criminal indictment of at least five top aides associated with the Trump campaign, and at least four have pleaded guilty, including Michael Flynn, the former national security adviser, and Rick Gates, the former deputy campaign chairman.
No one is above the law, except maybe the President if Kavanaugh is confirmed. Kavanaugh has previously written that presidents should not be subject to civil lawsuits or criminal investigations while in office. Perhaps unsurprisingly, Kavanaugh has also suggested that U.S. v. Nixon — the Supreme Court case that forced President Nixon to turn over the Watergate tapes — was wrongly decided.
Kavanaugh’s record raises huge red flags. As the Mueller investigation, as well as the New York state investigation, closes in around Trump, the Supreme Court will be required to weigh in on a number of important, never-before answered questions regarding the president’s culpability: Can the President fire the special counsel? Can a sitting U.S. President be called to testify in a criminal case? Does the President have the legal authority to pardon himself? Kavanaugh has already indicated that he would support President Trump’s increased presidential power.
Money Before People
Kavanaugh’s record shows a career of putting corporations, the powerful, and the mega wealthy over the interests of regular people.
- Kavanaugh has tried to make it more difficult for federal employees to pursue claims of racial discrimination and retaliation in federal court.
- Kavanaugh has consistently ruled against workers in workplace safety cases and in union disputes.
- Kavanaugh has argued that undocumented workers do not have the right to unionize because of their immigration status, regardless of unsafe and inhumane working conditions.
- Kavanaugh has repeatedly sided with corporations and polluters, and ruled against protections for clean air and clean water, degrading the environment and endangering the health and lives of millions.
- Kavanaugh would allow for businesses – including adoption agencies — to discriminate against couples in same-sex marriages because of their personal religious beliefs.
- Kavanaugh would expand corporations’ first amendment rights and uphold Citizens United — a 2010 Supreme Court decision that allows corporations to donate unlimited funds to political campaigns.
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