Imagining Another Right-winger on the Supreme Court

“We have to think about this other strategy. If you keep doing defensive work, you just kind of respond, respond, respond. You have to be proactive. You have to build,” says Briana Perry, Co-director of Healthy and Free Tennessee.

NASHVILLE, TN – The U.S. Senate begins confirmation hearings Tuesday, September 4, and will likely confirm Brett Kavanaugh to the Supreme Court. He is currently a federal judge in the U.S. Court of Appeals for the District of Columbia.

Kavanaugh, born and bred in Washington, knows how to say the right things to seem well within the judicial mainstream. He is unlikely to say anything to alarm any Senators who are wavering about voting for his appointment.

He has already assured Sen. Susan Collins (R-ME) that Roe v Wade is “settled law” and photos and news video of a smiling Collins were released last week. The news media have widely reported Collins and Sen. Lisa Murkowski (R-AK) are the only two Republican senators who might vote against Kavanaugh. They support a woman’s right to choose. If they both vote “yes” the Republicans won’t need any Democratic votes to confirm Kavanaugh.

Kavanaugh’s August 21st meeting with Collins was just political theater. What lies behind the curtain are several reproductive rights cases waiting for the big show, any one of which could undo Roe v Wade. Kavanaugh’s vote would decide the case.

Roe v Wade may be settled law but it is about to be overturned and Kavanaugh was being disingenuous to suggest otherwise. He will be the agent of its demise.

If Kavanaugh was honest about his real views, like former nominee Robert Bork, who the Senate rejected in 1987, Kavanaugh would have a harder time being confirmed. He will dissemble; the Democrats will act tough; but they won’t have the votes to block his confirmation. The Supreme Court will then have a 5-4 conservative majority. If Ruth Bader Ginsburg retires while Trump is in the White House, the Supreme Court will likely have a 6-3 rightwing majority for many years.

“He is not somebody who would be a swing vote, he would starkly move the court to the right in ways that would prove harmful to minority communities,” said Kristen Clarke, President and Executive Director of the Lawyers Committee for Civil Rights Under Law.

The committee released a report last week that examined Kavanaugh’s civil rights record. It concluded Kavanaugh has failed to protect civil rights. The committee sent the report and a letter to Senate leaders opposing his nomination.

In one search and seizure case, Kavanaugh did not join the majority that found the police had no right to unzip a suspect’s jacket without probable cause. Kavanaugh supports “Driving While Black” policing. In two cases he said police had a right to search cars because drivers appeared nervous when they were stopped in a high crime area.

In one EPA air pollution case, Kavanaugh sided with the polluter. That opinion was later overruled 6-2 by the Supreme Court. “This case illustrates that Bret Kavanaugh puts the interests of industry over people,” Clarke said in a conference call.

Clarke said Kavanaugh would likely gut the work and mission of federal agencies like the EPA, HUD, Dept of Education that “breathe life into the law”. Kavanaugh affirmed a South Carolina voter ID law designed to suppress black votes. He filed an amicus brief in an Affirmative Action case arguing such programs are not needed and are unfair.

“He is somebody whose judicial philosophy clearly aligns with Justice Thomas,” Clarke said.

There is no area of law or social policy the Supreme Court does not touch. Healthcare and reproductive rights are critical issues for minorities and especially women of color. A Texas case to declare the Affordable Care Act (ACA) unconstitutional is winding its way to the Supreme Court. If appointed Kavanaugh’s vote could end Obamacare’s most important provision: protection for people with pre-existing conditions.

“When we think about white supremacy and the anti-racist movement, there is a clear intersection with reproductive rights. We can’t ignore that,” said Briana Perry.

Perry is Co-Director of Healthy and Free Tennessee, a group that works to protect women’s reproductive rights. She says they have been under attack since 2010 when the Republicans won control of both houses of the state legislature.

Perry says there have been 1,074 abortion restrictions voted into law in the U.S. since Roe v Wade (1973). One quarter of them have been enacted between 2011 and 2015. State leaders established a Maternal Mortality Review Board in 2016. Preliminary data indicate black mothers are dying 2-4 times the rate of White women in Tennessee.

There have been eight clinics that provide abortions in Tennessee. One of two clinics in Nashville is closing. Thirty-eight states have fetal homicide laws, including Tennessee, and  21 women have been jailed in the U.S. for self-managed abortions since 2000.

If Roe v Wade is overturned abortion will still be legal in some states. But it will trigger abortion bans in Louisiana, Mississippi, North Dakota, and South Dakota.

During the Clinton administration, a group of black women, after attending a conference in Cairo, Egypt, came up with a framework for reproductive justice. It has three parts: the right to not have a child, the right to have a child, and the right to parent children in safe and healthy communities.

“It implies access to jobs, access to food, access to clean water and that’s how environmental justice issues play into it,” Perry said. That vision drives Perry’s work today.

She thinks Roe v Wade will be overturned and the fight for reproductive rights will enter a new phase. It will require a different strategy from healthcare advocates in the coming years.

Healthy and Free Tennessee has a four-part strategy in the coming year: a statewide abortion fund, take laws making self-managed abortions illegal off the books, fight for expanded reproductive rights in jails and prison, and training women to manage their own abortions at home.

It will give self-managed abortion training to 30 women September 20 in Nashville. It will hold a statewide conference in October in Nashville. For more information go to: www.healthyandfreetn.org

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