Kavanaugh: Red states can't stop pregnant women from traveling to blue states for an abortion

Erin Schaff/The New York Times via AP, Pool

It’s weird yet true that all of the spicy constitutional action in today’s decision came in the concurrences, not the majority opinion. First there was Clarence Thomas nudging conservative intellectuals to start demolishing the rest of substantive due process. Now here’s Brett Kavanaugh tipping his hand on how he’ll rule on the predictable legislative offshoots of the Dobbs decision.

Which is completely gratuitous, as the justices tend not to address matters that aren’t squarely before the Court. Whether a state can lawfully prevent a pregnant woman from seeking an abortion in another state or penalize her for doing so after the fact wasn’t on the table today. Yet here Kav was, issuing preliminary rulings anyway.

I get the sense reading this that he was indeed the fifth and most reluctant vote to overturn Roe and that he was keen to limit the legal implications of the ruling. Don’t get any funny ideas about reversing gay marriage or the right to contraception, he warns lower courts here. The Dobbs case is an abortion case, period. And don’t get any funny ideas about trying to limit women’s right to leave the state for abortions, he warns red-state legislatures. Kavanaugh is clearly worried about conservative “overreach” in the aftermath and looking to head it off at the pass.

Again, there’s no need for Kavanaugh to address weighty legal questions that aren’t before the Court and haven’t been briefed. It’s borderline improper, frankly. But that’s how eager he is to try to avert a situation in which overzealous Republican legislators start piling onerous restrictions on pregnant women to keep them within state lines.

Which I understand. There are destined to be many righties who are conflicted about today’s ruling, and I’m one. I wonder if Kavanaugh is too.

I’m not conflicted about the result. Overturning Roe was the correct decision constitutionally and obviously the correct decision morally. If we lived in a world in which the Democratic establishment was keen to limit the number of abortions on moral grounds while insisting that the practice remain legal early in a pregnancy, in particular circumstances, the moral issue would be harder. As it is, their position on abortion is to keep it legal until the moment a baby is fully free of the birth canal. It’s a macabre moral abomination. When the right thing is obvious, you’re bound as a matter of moral and intellectual integrity to do it. The Court did it. I would have voted with Alito too.

But at this stage of American decline, only two groups of people don’t worry about the long-term stability of the country — fools and accelerationists. The accelerationists, e.g. Steve Bannon, crave chaos because they recognize that it’s a precondition for radicals to gain political traction. The fools don’t crave it but are indifferent to it as a matter of “everything will be fine” fatalism or “everything will be better once my side wins” fantasy. The reason I complain incessantly about Trump and the insurrection isn’t because I’m offended by his “mean tweets,” it’s because he’s a grotesque civic arsonist and January 6 was the biggest fire he set. There’s nothing so destabilizing as a coup attempt.

The “cold war” between the states engendered by today’s decision will further destabilize America even though the outcome is just.

I can’t read Kavanaugh’s mind but the fact that he’s worried enough about red states overreaching that he’d stoop to pre-judging future abortion cases in today’s concurrence makes me think he’s worried about destabilization too. “We are about to become a divided country, where abortion is legal in about half the states, illegal in half the states,” said NBC’s Pete Williams today. Seldom do I say “Jeffrey Toobin is right” but Jeffrey Toobin is right:

“Far from de-escalating anything, this is a long fuse,” one Twitter pal noted about the coming storm. “The interstate conflicts are going to begin almost immediately. They will be novel and absurd legal questions that are deeply felt and irreconcilable.” I’ve written about those conflicts several times since Alito’s draft opinion leaked. For instance, there are efforts in motion already in some red states to create private causes of action against anyone who assists an abortion performed on a state resident — even if that abortion is conducted out of state.

Kavanaugh didn’t mention civil suits in his concurrence but the passage above leads me to suspect he’ll look dimly on any attempts by red states to interfere with, or otherwise deter, abortions provided in blue ones. He may be staking out a pure federalist position on the subject — red states can ban it in their own jurisdictions, but that’s as far as their reach extends. What their residents do while visiting other states is their business. That may be the best Kav can do to try to keep the peace as the country pulls apart. The “MYOB” principle is tried and true.

I wonder what he’ll say about red states trying to ban abortifacients, a task that’s easier said than done. Biden’s administration is already setting up the next legal fight, whether FDA approval of a drug means that states can’t prohibit it as a matter of federal supremacy:

Today’s decision was technically 6-3 but no one expects John Roberts to staunchly support red states as they go about contriving mechanisms to deter their pregnant residents from traveling across state lines for abortions or to block them from accessing drugs like mifepristone and misoprostol. Which means, on this subject, Kavanaugh is destined to be the Anthony Kennedy of the Court. Whatever Kav, the Decider, wants is what the law will be. And he sounds chilly to the idea of red-state legal contraptions that seek de facto interstate jurisdiction over abortions.

I’ll leave you with Biden, who also sees where the legal battle is heading.

Jazz Shaw Aug 10, 2022 8:01 AM ET