Brett Kavanaugh

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Brett Kavanaugh is a judge on the U.S. Court of Appeals for the D.C. Circuit, and a leading contender for nomination to the vacancy on the U.S. Supreme Court left by the retirement of Justice Anthony Kennedy. Many believe that if nominated, he would have a judicial philosophy closer to that of Roberts or Kennedy, than of Alito or Scalia.[1][2]

However, he has written some opinions supporting an America First philosophy.[3][4]

Conservative criticism of Kavanaugh

Conservatives have criticized Judge Kavanaugh for conceding that the government has a "compelling interest" in promoting contraception. Defendants of Judge Kavanaugh has said he was merely following the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc. (2014), as lower courts are bound to do.[5] But Judge Kavanaugh actually went further in the direction of Planned Parenthood than the Supreme Court had.

In his dissent in a related case, Priests for Life v. HHS,[6] Judge Kavanaugh first says[7] that it is necessary to decide whether or not the government has a compelling interest in promoting contraception, because that is a step in applying RFRA to the plaintiff's claim to be exempt from Obamacare's contraceptive mandate.

Then Judge Kavanaugh discusses at length[8] the issue of compelling interest. Judge Kavanaugh concedes that the Supreme Court "did not formally hold" that the government has a compelling interest in promoting contraception. He should have stopped there, but he didn't.

Instead, Judge Kavanaugh took an ambiguous statement from a concurring opinion by his old boss Justice Kennedy, combined it with the opinion of the four dissenting Justices, and concluded that "a majority of the Justices in Hobby Lobby (Justice Kennedy plus the four dissenters) would suggest that the Government has a compelling interest in facilitating women’s access to contraception."

Judge Kavanaugh then wrote a long paragraph full of Planned Parenthood propaganda, containing many factual assertions about the alleged "numerous benefits" of contraception, benefits which he claimed are "commonly accepted" even though they are all disputed and rebuttable, and not supported by evidence in the record (not that any of the assertions should be subject to judicial fact finding anyway).

In Hobby Lobby the Supreme Court assumed without deciding that contraception is a compelling interest, and Judge Kavanaugh should have done likewise. Instead, he appears to have gone out of his way to hold that the federal government has a legitimate interest, even a compelling interest, to promote contraception or facilitate access to contraception.

In fact, the Supreme Court has never found or held that there is any public purpose or social benefit, let alone a compelling interest, to justify federal legislation promoting contraception. Without such a finding, the entire contraceptive mandate should have been thrown out, not just for religious objectors.

The federal government began funding contraception after the passage of Title X in 1970, but apparently no one has ever challenged the constitutionality of Title X as to whether it served a legitimate public purpose. Contrast that to New Deal passage of Social Security and Unemployment Compensation programs, which were upheld by the Supreme Court in 1938 based on a finding that those programs were justified because they "provide for the ... general welfare of the United States" as provided in Article I, Section 8 of the Constitution.

It may be true, as Judge Kavanaugh says, that the alleged "numerous benefits" of contraception are "commonly accepted" as a result of 50 years of Planned Parenthood's federally funded propaganda, but that does not mean they have been found to be true. A valid public purpose is needed to compel private conduct, and no valid public purpose or social benefit has ever been recognized by the Supreme Court.

References