Kavanaugh Implied the Supreme Court Can Be “Neutral” on Abortion. That’s Ridiculous.

26 states have indicated they are ready to implement abortion bans.

Erin Schaff/CNP/ZUMA

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

Justice Brett Kavanaugh used some startlingly disingenuous language today while the Supreme Court heard oral arguments on a Mississippi case that threatens to do away with the legal right to an abortion. 

His arguments hinged on the idea of the court doing nothing to uphold abortions, but he kept calling it “neutrality.”

Kavanaugh likes to summarize his own positions while pretending he’s just playing devil’s advocate. Today, he did this to imply that perhaps the Supreme Court should stand “neutral” (a word that, according to one transcript of arguments, Kavanaugh used eight times) on the issue of abortion. He called neutrality “neither pro-choice nor pro-life.” He said such a position would mean not “continuing to pick sides” on a “contentious social issue.”

Of course, this “scrupulously neutral” position is still picking sides. The court not upholding the right to abortion would mean—as Kavanaugh himself said—that the Supreme Court decides it “should leave it to the states.” In practice, that’s not neutral. It is allowing for abortion bans to go into effect.

According to the Guttmacher Institute, a pro-choice research institution, 21 states have laws or constitutional amendments in place that would make them certain to attempt to ban abortion outright the moment Roe is overturned. Many of these laws take the form of so-called “trigger bans“—laws designed to trigger immediately or automatically after Roe no longer applies. Other states still have abortion bans that predate Roe on the books, and some have passed near-total bans currently blocked by the courts. 

Kavanaugh’s comments on neutrality tap into the logic of an age-old conservative attack on the “activism” of liberal justices (given voice, most hysterically, by the late Justice Antonin Scalia). By this argument, any steps that liberal justices take to expand the rights of people of color, women, and queer people constitute tyrannical judicial overreach, while steps to dial back those rights return the country to its constitutional roots.

It’s more than a little dishonest to cloak the raw exercise of partisan politics in the language of judicial restraint and “neutrality.” It’s been clear for a while that Kavanaugh favors a particular outcome with regard to abortion rights. Maybe it’s time he just say so. 

TIME IS RUNNING OUT!

We have an ambitious $350,000 online fundraising goal this month and it's truly crunch time: About 15 percent of our yearly online giving usually comes in during the final week of the year, and in "No Cute Headlines or Manipulative BS," we explain why we simply can't afford to come up short right now.

The bottom line: Corporations and powerful people with deep pockets will never sustain the type of journalism Mother Jones exists to do. And advertising or profit-driven ownership groups will never make time-intensive, in-depth reporting viable.

That's why donations big and small make up 74 percent of our budget this year. There is no backup to keep us going, no alternate revenue source, no secret benefactor. If readers don’t donate, we won’t be here. It's that simple.

And if you can help us out with a donation right now, all online gifts will be matched thanks to an incredibly generous matching gift pledge.

payment methods

TIME IS RUNNING OUT!

We have an ambitious $350,000 online fundraising goal this month and it's truly crunch time: About 15 percent of our yearly online giving usually comes in during the final week of the year, and in "No Cute Headlines or Manipulative BS," we explain why we simply can't afford to come up short right now.

The bottom line: Corporations and powerful people with deep pockets will never sustain the type of journalism Mother Jones exists to do. And advertising or profit-driven ownership groups will never make time-intensive, in-depth reporting viable.

That's why donations big and small make up 74 percent of our budget this year. There is no backup to keep us going, no alternate revenue source, no secret benefactor. If readers don’t donate, we won’t be here. It's that simple.

And if you can help us out with a donation right now, all online gifts will be matched thanks to an incredibly generous matching gift pledge.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate