And that’s not all the bad news. Multiple pro-life activists were initially pleased that not only did Justice Kavanaugh join Justices Gorsuch, Thomas, and Alito in voting against the stay, but Kavanaugh actually penned a short dissent.
But if you read the dissent, it’s on the most narrow possible grounds. Essentially, he argues that there isn’t yet any evidence that the Louisiana law will have any immediate effect on abortion access. The state was implementing a 45-day transition period that could allow more doctors to obtain admitting privileges, and if they could not, then the doctors could file an “as-applied” complaint against the law, rather than a pre-enforcement challenge. Indeed, the entire dissent is painstakingly (and painfully) deferential to Whole Women’s Health and the Casey “undue burden” standard more broadly.
To be sure, nothing about this Kavanaugh dissent represents a definitive declaration of his view of either key abortion precedent. In a different case (or even when this case comes back before the Court), Justice Kavanaugh could reach a different — and better — conclusion. But keep in mind that he did not have to write that dissent. He could have joined the other three dissenters in silence. The fact that he chose to speak — and to speak in such careful, limited language — strikes me as meaningful.