Guest Post: With Kavanaugh nomination, the threat to gut Roe becomes real

One of the defining characteristics of Colorado is that we are a pro-choice state, and have been since we became the first state to allow safe, legal abortion in 1967. This belief in the right to privacy crosses party and geographic lines. Coloradans are just as pro-choice in Grand Junction as they are in Aurora and Sterling. And we are one of the few states where the right for a person to obtain abortion care is not restricted by punitive laws that require waiting periods or for medical providers to lie to women. We believe, as Coloradans, that these decisions belong between patients and physicians, and that the government has no right to interfere.

But with the nomination of Judge Brett Kavanaugh to the Supreme Court, this could all change. We could revert to the dark days before Roe v. Wade when women suffered and died for trying to terminate a pregnancy. Before Roe, 1.2 million American women sought illegal abortions every year. Some 5,000 of them died from complications.

Kavanaugh has made repeated and troubling arguments against abortion rights. He issued a strongly-worded dissent against a D.C. Circuit decision that allowed an undocumented young woman to access abortion care. Kavanaugh argued that despite the fact that the girl had already met all of Texas’ burdensome requirements for young women seeking abortion care (mandatory delay, state court approval, etc.), she should have to wait until she had an immigration sponsor to make “that momentous life decision.” He wrote, “The en banc majority…reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.”

Kavanaugh has also endorsed employers deciding which birth control women can use. In a heated dissent in Priests for Life v. HHS, he argued that the Affordable Care Act’s religious accommodation to the contraceptive-coverage policy placed a substantial burden on religious employers’ beliefs, even “if the religious organizations are misguided in thinking that this scheme…makes them complicit in facilitating contraception or abortion.”

In a speech last September to the extremist American Enterprise Institute, Kavanaugh praised Chief Justice Rehnquist, who dissented in Roe, and then explained why using several examples, including the basis for the Roe decision itself. Kavanaugh said, “…He explained that a law prohibiting an abortion, even where the mother’s life was in jeopardy, would violate the Constitution, but otherwise he stated the states had the power to legislate with regard to this matter.”

“States had the power to legislate with regard to this matter” should send a chill up the spine of every woman in America. That was the reality before Roe – and it is the reality now in states that have passed six and 20-week abortion bans, mandatory ultrasounds, abortion ‘reversal’ bills, and medically unnecessary waiting periods. You don’t have to explicitly ban abortion completely to make it impossible to get, especially for low-income women and communities of color. You can gut Roe in a million different ways, and anti-choice legislators and extremist groups have found increasingly creative and offensive ways to do that.

We have fought off just these types of laws in Colorado repeatedly, with the backstop of a pro-choice governor. The potential of Kavanaugh on the Supreme Court makes it even more critical to elect a pro-choice majority in the General Assembly and a governor who supports abortion rights.

NARAL Pro-Choice Colorado and our allies fought Neil Gorsuch’s appointment to the Supreme Court because we believe he did not reflect Colorado’s pro-choice values. His ruling in NIFLA v. Becerra, allowing fake clinics to lie to women, proved us right. Kavanaugh, like Neil Gorsuch, has been pre-approved by the Federalist Society, a secretive right wing group that includes opposing Roe as part of its qualifications.

The threat to Coloradans, our right to privacy, and our access to abortion care is very real. Senators Gardner and Bennet need to not just oppose, but actively work to block Judge Kavanaugh from joining the Supreme Court.

Karen Middleton is the executive director of NARAL Pro-Choice Colorado