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Brett Kavanaugh answers questions at his confirmation hearing. Photo by Michael Reynolds / picture-alliance / dpa / AP Images

How Justice Brett Kavanaugh Could Impact Choice in Colorado

While Colorado is known for unrestricted access to reproductive healthcare and abortion, local advocates still worry about the impact a right-leaning Supreme Court could have on services and providers.

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After a contentious hearing process, the U.S. Senate confirmed Brett Kavanaugh to the Supreme Court on October 6. Kavanaugh was publicly accused of sexual misconduct by three women, including Christine Blasey Ford—a professor of psychology at Palo Alto University—who testified before the Senate Judiciary Committee in late September that Kavanaugh assaulted her during a high school party, and Deborah Ramirez, a Colorado woman who claimed that he exposed himself to her while they were freshmen at Yale.

Before these accusations became public, though, advocates for reproductive rights were worried about another aspect of Kavanaugh’s past: What they see as clear opposition to Roe v. Wade, the landmark 1973 Supreme Court ruling that decriminalized abortion in the United States. “Judge Kavanaugh has been an outspoken opponent of Roe v. Wade throughout his career,” says Colorado Rep. Diana DeGette, a Democrat who co-chairs the Pro-Choice Caucus. “I am terribly concerned that, if the court either reverses or substantially undermines Roe v. Wade, this will restore [the U.S.] to a patchwork of availability for women’s reproductive health services.”

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Kavanaugh’s supporters have either expressed doubt about the judge’s views on abortion or celebrated his confirmation as the beginning of a new, pro-life Supreme Court. Sen. Susan Collins of Maine, a moderate Republican who supports abortion rights and was thought to be a swing vote on Kavanaugh’s confirmation, said that the judge told her in their August meeting that Roe v. Wade was “settled law.” Meanwhile, Jeanne Mancini, president of March for Life—a group behind an annual rally protesting the practice and legality of abortion—believes the movement has gained another ally on the Supreme Court, saying: “We look forward to Justice Kavanaugh’s tenure on the bench and the impact his dedicated public service will have towards creating a country where every human life is valued and protected equally under the law.”

Colorado was the first state to decriminalize abortion in 1967, and still has fairly unrestrictive laws on the books. DeGette said she believes those state laws would stand, even if Roe does not. But she is still worried about Colorado women’s access to reproductive healthcare, a concern echoed by other pro-choice advocates across the state. Let’s delve in.

Why do reproductive rights advocates see Kavanaugh as a threat?

Kavanaugh’s past rulings—plus a leaked email—are cause for concern for pro-choicers. “We fully anticipate that he would be part of anything that undermines, guts, or reverses Roe,” says Vicki Cowart, president and CEO of Rocky Mountain Planned Parenthood. She cites a 2017 case called Azar v. Garza, which involved a teenaged immigrant who was not allowed to leave a detention center to receive an abortion. The young woman sued the federal government and won, but Kavanaugh, a D.C. circuit judge at the time, released an order that vacated the part of the judgment that would allow the young woman to terminate the pregnancy. “He attempted to block her access to abortion,” says Cowart.

Even when the injunction failed, Kavanaugh dissented, saying the federal government should not have to facilitate her abortion (he suggested a sponsor be found to help her; opponents say such a move would have created “undue burden,” stopping her from ending the pregnancy in a timely manner). Cowart believes the decision indicates that Kavanaugh would make other attempts to restrict abortion access.

Those fears were compounded by leaked emails from Kavanaugh’s time as a lawyer in President George W. Bush’s administration. One reads: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent.” Though the email never clarified whether Kavanaugh himself would overturn Roe, the judge was asked directly about the issue during his hearing. Rather than affirming the ruling, Kavanaugh said that Roe v. Wade was “settled as precedent as by the Supreme Court.”

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Rep. DeGette hears a non-answer. “He gave generic responses,” she says. “Does that mean he actually would not overturn Roe v. Wade? I don’t think we can trust that.”

What does Kavanaugh’s possible stance on Roe v. Wade have to do with Colorado?

Although abortion is legal on the federal level, states can still make their own laws, and some have already passed legislation restricting abortion access. “There are hundreds and hundreds of pieces of legislation that have been run and passed successfully in states all around us,” says Karen Middleton, director of NARAL Pro Choice Colorado. “And a number of them have been run in part to really test the Supreme Court and be ready to bring challenges to the Supreme Court when a more favorable court is seated.”

Here in Colorado, efforts by pro-life activists and legislators to undermine a woman’s right to choose have mostly failed. The biggest restriction in the Centennial State, according to Middleton, is a rule that state dollars can’t be spent on the procedure, which means women on Medicaid and those working in the government must pay out-of-pocket to terminate a pregnancy. (There are two exceptions: If the pregnancy endangers the life of the woman, or if the pregnancy is the result of rape or incest.)

Middleton says she’s also concerned about a House bill that was proposed in January 2018 that would have banned a method of abortion commonly used in the second trimester, unless it was necessary in a medical emergency. “If there’s a catastrophic problem or some sort of reason that the woman feels like she can’t carry that pregnancy to term, that form of abortion care could be made illegal,” says Middleton. While the House Committee on State, Veterans, & Military Affairs postponed HB18-1120 indefinitely in February 2018, its introduction proved to Middleton that efforts to restrict access to abortion in Colorado are still alive and well.

Laws restricting access in other states could overwhelm Colorado clinics.

But the biggest repercussion from potential rollbacks to abortion access may come from outside our state’s borders. “[If Roe v. Wade is struck down], we would reaffirm the precepts of Roe v. Wade in our state law, and then we would become a magnet from people in the states around us to come to try and get the health services they needed,” says DeGette. This scenario isn’t out of the question. In fact, Middleton says she knows of at least one young woman who grew up in Colorado, moved away, then flew back in to terminate a pregnancy.

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There’s evidence that women are likely to travel to obtain abortions, if access is limited in their areas. For example, in 2013, Texas passed HB2, which required all abortion clinics to meet the same standards as an ambulatory surgery center (a facility where an individual can receive surgery that does not require an overnight stay). Proponents of HB2 said it made abortion clinics safer, but critics said it added unnecessary barriers to an already-safe procedure.

While parts of HB2—including the ambulatory surgery center requirements—were struck down by the Supreme Court in a 2016 case called Whole Woman’s Health v. Hellerstedt, 19 of the 44 facilities that performed abortions had already closed because they were unable to fulfill the rules set by the legislation. As a result, women were forced to travel—an average of 85 miles, according to Texas Policy Evaluation Project published in the peer-reviewed American Journal of Public Health—to seek out the procedure, placing an extra burden on facilities that remained open. Of course, not all women can afford to or have the ability to make such a trip.

Effects of laws like HB2 don’t stop at state borders. After HB2 was passed, “we began to see more Texas women coming to Colorado,” says Cowart. If the Supreme Court upholds state laws that weaken Roe v. Wade, she believes the out-of-state trickle will become a flood. “We know that Arizona, Utah, Idaho, Montana, Wyoming, Nebraska, Kansas, Oklahoma, and Texas are all at risk of seeing significantly worse laws put into place that could reduce or even eliminate the ability of a woman to access abortion in her home state,” says Cowart. “We see women coming from those places now. It’s only going to get worse.”

Cowart says that Rocky Mountain Planned Parenthood is already working to increase capacity at their facilities in order to manage a potential influx of patients. “The pressure will be on for those of us in states that are likely to be able to stay safe for abortion,” she says. “We need to think about what’s going on for the women in the states surrounding us.”

While some think Colorado is safe from anti-abortion laws, others aren’t so sure.

Middleton agrees that Colorado has been a consistent leader when it comes to unrestrictive abortion access. But that doesn’t mean it will always be that way. Middleton points out that the upcoming midterm elections could alter the balance of Colorado’s divided state legislature. Couple that with the possibility of a pro-life governor in the Capitol, and Colorado’s abortion laws could be affected. “I’m concerned because the ground work has been lain to make it very hard for women all around us,” Middleton says. “Colorado is OK for now, but we don’t know what the future will hold.”

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