Will Justice Brett Kavanaugh Change His Position on Abortion?

Justice Kavanaugh has consistently supported abortion restrictions, but occasionally stakes out more moderate positions than his colleagues.,

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Will Justice Brett Kavanaugh change his position?

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Nov. 1, 2021, 11:13 a.m. ET

Nov. 1, 2021, 11:13 a.m. ET

Justice Brett M. Kavanaugh at the State of the Union address in 2020.
Justice Brett M. Kavanaugh at the State of the Union address in 2020.Credit…T.J. Kirkpatrick for The New York Times

Justice Brett M. Kavanaugh, who voted with the majority in September to allow the Texas law to come into effect, may be the member of the court most open to switching sides on the issue. Though his voting record in abortion cases has consistently supported abortion restrictions, he has made occasional comments staking out more moderate positions than those of his colleagues.

In 2019, for instance, when the court temporarily blocked a Louisiana law restricting abortions, Justice Kavanaugh issued a dissent, taking a middle position that acknowledged the key precedent and that said he would have preferred to have more information on the precise effect of the law.

In 2017, when he was still a federal appeals court judge, he dissented from a decision allowing an undocumented teenager in federal custody to obtain an abortion, writing that the majority’s reasoning was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.

But Judge Kavanaugh did not join a separate dissent from Judge Karen LeCraft Henderson, who wrote that the teenager had no right to an abortion because she was not a citizen and had entered the country unlawfully.

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