Letter in Opposition to the Nomination of Brett Kavanaugh to the Supreme Court

See PDF version here

August 31, 2018

 

Chairman Chuck Grassley

Committee on the Judiciary

United States Senate

 

Ranking Member Dianne Feinstein

Committee on the Judiciary

United States Senate

 

Dear Chairman Grassley and Ranking Member Feinstein,

 

On behalf of the Feminist Majority Foundation, a national organization dedicated to women’s equality, reproductive health, and non-violence, we write to express strong opposition to the confirmation of Judge Brett Kavanaugh to serve as an Associate Justice of the U.S. Supreme Court.

 

Nominees to the U.S. Supreme Court must meet the highest standards of character and integrity. The decisions made by the Court impact almost every aspect of our daily lives, and the public must be secure in knowing that the nominee is willing to protect the rights of all people, not just the powerful, and uphold the rule of law. Judge Kavanaugh does not meet these requirements. His record shows hostility to reproductive rights and the Affordable Care Act, support for unchecked presidential power, and suggests that he would undermine civil rights and workplace fairness and promote the interests of corporations, the wealthy, and the powerful at the expense of everyday people, with damaging consequences for women, people of color, and other vulnerable communities.

 

Although the Feminist Majority Foundation submits this letter as part of Judge Kavanaugh’s nomination hearing in the Senate Judiciary Committee, we would first like to note our opposition to the decision to proceed with the hearing at this time.

 

The Committee Should Delay the Nomination Hearing Until All Records are Reviewed

 

Judge Kavanaugh has been nominated to a lifetime appointment on our nation’s highest court, yet neither the Senate Judiciary Committee nor the public has had access to the full record of his time as White House staff secretary to President George W. Bush. In discussing “what prior legal experience has been most useful” to him, Judge Kavanaugh himself acknowledged that the three years he spent as staff secretary were “the most

 

interesting and informative.”[i] It is therefore irresponsible, and not in keeping with the Senate’s constitutional duty to provide meaningful advice-and-consent, for this Committee to conduct a hearing without having reviewed the full range of records pertaining to this time.

 

As staff secretary to President Bush, Kavanaugh was not a “paper pusher,” but rather he would have been a central figure in the George W. Bush White House who would have reviewed and prioritized almost every document to reach the President and played a substantive role in key policy debates.[ii] The records related to his service may therefore provide critical insight into his role in some of the Bush Administration’s most controversial actions, including the Administration’s use of torture after September 11.

 

These records may also help determine whether Judge Kavanaugh misled or lied to members of this Committee in 2006 when, during his confirmation hearing to serve as a federal appeals court judge, Kavanaugh testified that he had no involvement in, or knowledge of, the legal issues surrounding the Bush Administration’s “War on Terror” policies and practices, including warrantless wiretapping, inhumane detainee treatment, and torture.[iii] Shortly after his confirmation, the Washington Post reported that Kavanaugh had participated in discussions over the legality of these very policies.[iv]

 

The question of whether a nominee to the U.S. Supreme Court purposefully misled the Committee on a prior occasion in order to obtain a lifetime appointment as a federal judge is not insignificant. It goes to the heart of Judge Kavanaugh’s judgment and character. It is also a question that can be answered only after a thorough review of the record; assurances from Judge Kavanaugh’s political allies should not be sufficient.

 

These are challenging times. Our President is the subject of a special investigation into foreign interference in the 2016 Presidential Election. At least five people associated with President Trump have been found guilty of, or have pled guilty to, various federal crimes, including former national security advisor Michael Flynn, former Trump policy advisor George Papadopoulos, former deputy campaign chairman Rick Gates, former campaign chairman Paul Manafort, and, most recently, the President’s former attorney Michael Cohen. In addition, several current and former members of the Trump Administration have been under scrutiny for behavior the average American would consider inappropriate, including misuse of taxpayer money,[v] alleged swindling of business associates,[vi] domestic violence,[vii] and sexual harassment and misconduct.[viii]

 

Under these circumstances, it is more important than ever for the Senate to take its duty to provide advice and consent seriously, especially for a Supreme Court nominee who spent years as a political operative and whose writings suggest that he would shield the President from the rule of law. This nomination comes at a critical time for our democracy, and the Committee’s actions should reflect that reality. The Committee should therefore undertake a complete review of Kavanaugh’s entire record.

 

Thus far, though, the Committee Chair has not even requested documents related to the three years Kavanaugh spent as President Bush’s staff secretary, and the Committee has received only a small fraction of the documents related to the more than five years Kavanaugh served in the White House. Many of the documents that have been produced were not reviewed and released by the politically neutral National Archives, as is the usual process;[ix] instead, they were handpicked by a partisan lawyer, who represents President George W. Bush (not the American people) and who once served as a deputy to Kavanaugh himself.[x] The Committee has received no explanation for why documents have been omitted and has been given no information on why other documents have been redacted.  The American people deserve better. There is no reason for this Committee to rush forward with a nomination hearing without the full record.

 

A review of what we do know, however, leads the Feminist Majority Foundation to oppose the confirmation of Judge Kavanaugh.

 

Access to Abortion and Birth Control

 

The right to access a full range of reproductive healthcare services, including abortion and birth control, is central to the lives of millions of women in the United States. The availability of affordable modern contraception has contributed to tremendous gains in women’s educational and economic advancement in the United States,[xi] and has had positive impacts on both infant and maternal health.[xii]  Birth control has allowed women to participate more fully in the social and economic life of the nation and has given women the ability to more freely determine their destinies by allowing them greater control over whether and when to have a child. Similarly, access to safe, legal abortion has given women greater ability to make personal life and health decisions that are best for them, and often, their existing families.

 

Before the Supreme Court’s landmark decision in Roe v. Wade, which decriminalized abortion throughout the country, illegal abortions were common. According to the Guttmacher Institute, in the 1950s and 1960s, estimates of the number of illegal abortions were as high as 1.2 million per year.[xiii] Although not all illegal abortions ended in death, the number of deaths from illegal abortion was high. In 1965, for example, illegal abortion accounted for 17 percent of all deaths attributed to pregnancy and childbirth that year.[xiv] That number, however, only includes those deaths that were officially reported as related to abortion; the real number is likely higher.[xv] Women forced to receive care clandestinely also suffered serious health consequences, and hospital admissions for incomplete abortion or infection were also quite common.[xvi] Women for whom pregnancy is a life-threatening health condition are also at grave risk when legal abortion is unavailable or restricted. Since Roe, however, the number of maternal deaths in the U.S. has plummeted.[xvii]

 

Despite the right to abortion, access to abortion is still severely restricted for many people,[xviii] and abortion rights are under constant threat in this country, putting women’s lives, their economic security, and their health at risk. Poor women and women of color, for whom access to health care is already limited because of structural and other barriers, are disproportionately impacted by lack of abortion access.[xix]

 

In this climate, President Trump has consistently indicated that he would only nominate a Supreme Court justice who would overturn Roe. Brett Kavanaugh’s record both on and off the bench clearly demonstrates that he could be the justice to do it. Just last year, Kavanaugh gave a speech at the American Enterprise Institute in which he strongly implied that Roe should be overturned. During the speech, Kavanaugh, while praising former Chief Justice William Rehnquist for “stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” noted that the former Chief Justice had been unsuccessful in curtailing these rights in Roe.[xx] Other unenumerated rights, of course, include the right to use birth control and the right to marriage equality.

 

In his only case addressing abortion rights, Garza v. Hargan, Kavanaugh twice tried to block a young immigrant woman in Texas from obtaining an abortion.[xxi] Although the full D.C. Circuit Court of Appeals eventually allowed Jane Doe to have the abortion, Judge Kavanaugh would have continued to delay the procedure, threatening to push Jane Doe pass the 20-week limit on abortion in Texas. In his dissent, Kavanaugh claimed that the court had created a right “to obtain immediate abortion on demand,”[xxii] ignoring that Jane Doe had to jump through numerous hoops to access abortion—including a judicial order allowing her to consent to the abortion on her own—and that the government had unnecessarily delayed the procedure for weeks.

 

As a judge on the Court of Appeals, Kavanaugh is bound by Roe, even though he tried to undermine its promise. If he is confirmed as a Supreme Court justice, Kavanaugh would not be bound; he could provide the fifth vote to overturn Roe. But even if he did not overturn Roe outright, his record of hostility to abortion rights in Garza is a dark sign. Kavanaugh could rubber stamp so many abortion restrictions that Roe and the right to abortion would become meaningless.

 

If Roe were overturned, the right to privacy and personal liberty would be severely jeopardized, including the right to birth control. In particular, Griswold v. Connecticut and Eisenstadt v. Baird—two landmark Supreme Court cases that made birth control legal and accessible nationwide through the right to privacy—would be at stake, and Kavanaugh’s record is hostile to birth control access. In Priests for Life v. U.S. Department of Health and Human Services, Judge Kavanaugh argued in dissent that an employer’s religious beliefs should override an individual’s right to access birth control,[xxiii] a position that would allow rampant discrimination against women.

 

The Affordable Care Act and Access to Health Care

 

The Affordable Care Act (ACA) has allowed millions of people to gain access to health insurance coverage, making critically-needed healthcare services more available and ensuring coverage for certain care. The ACA requires that insurers provide essential health benefits, including maternity and newborn care, mental health treatment, prescription drug coverage, preventive services, chronic disease management, pediatric care, and more. It has also ensured that people with pre-existing conditions have access to affordable coverage and provides protections against discrimination in healthcare on the basis of race, color, national origin, sex, age, or disability.

 

The ACA has been particularly beneficial for women. After passage of the ACA, uninsured rates for women of color, who face numerous healthcare disparities, dropped dramatically.[xxiv] The ACA also prohibits charging women more for the same health plans as men and has stopped insurance companies from treating women as pre-existing conditions, ending the practice of charging women more or denying coverage for prior pregnancies, Cesarean sections, or domestic or sexual violence.

 

Despite these benefits to everyday people, the ACA has been under constant attack. During his election campaign, President Trump promised that he would repeal the ACA and criticized Chief Justice John Roberts for not striking down the law. In a 2015 tweet, Trump wrote: “If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.”[xxv]

 

As a federal appeals court judge, Brett Kavanaugh has twice dissented in decisions upholding the ACA.[xxvi] These decisions suggest that if he were confirmed, Kavanaugh would repeal or otherwise undermine the ACA, putting the health of millions of people at risk. One of Kavanaugh’s former law clerks even wrote that Kavanaugh had provided a “roadmap” to the Supreme Court on finding the ACA unconstitutional.[xxvii]

 

Right now, a multi-state lawsuit challenging the constitutionality of the ACA and its protections for people with pre-existing conditions is making its way through the federal courts.[xxviii] The next Supreme Court justice may be the deciding vote on whether millions of people, including those with pre-existing conditions, continue to receive coverage and care.

 

Overturning the ACA would be disastrous for women’s health, leave the LGBTQ community vulnerable to healthcare discrimination, and jeopardize treatment coverage for transgender individuals, people suffering from substance use disorder, as well as people living with HIV and other serious health conditions. Insurers could, once again, impose annual and lifetime caps on coverage, and healthcare would be out of reach for many, including those most in need of care.

 

Unchecked Presidential Power

 

Even as this hearing begins, the President of the United States continues to be the subject of a special investigation into Russia’s interference in the 2016 Presidential Election. Though the President has tried to disparage the investigation and Special Counsel Robert Mueller, the special counsel investigation has resulted, so far, in more than 300 criminal counts against 33 people and three companies.[xxix]

 

No one is above the law, except maybe President Trump if Kavanaugh is confirmed. Judge Kavanaugh has previously written that presidents should not be subject to civil lawsuits, criminal investigation, or indictment while in office.[xxx] Perhaps unsurprisingly, then, Kavanaugh has also suggested that U.S. v. Nixon—the Supreme Court case that forced President Nixon to turn over the Watergate tapes—was wrongly decided.[xxxi] In a 1998 article, Kavanaugh also wrote that a sitting president should have “absolute discretion” about whether and when to appoint a special counsel,[xxxii] and that Congress should allow the President to act when he believes “that a particular independent counsel is ‘out to get him’.”[xxxiii]

 

Kavanaugh’s record raises huge red flags for the Mueller investigation, the rule of law, and the future of our democracy.  His position is also stunning as Kavanaugh himself was a member of Kenneth Starr’s independent counsel team when a Democratic president was under investigation. If confirmed, Kavanaugh would be in a position to deconstruct our system of checks and balances to create an unaccountable executive branch.

 

Civil Rights and Equitable Workplaces

 

The Supreme Court plays an essential role in helping to ensure fairness in the workplace, something that is critically important for women, people of color, people with disabilities, and LGBTQ individuals who have been historically marginalized in the public sphere. Kavanaugh’s record, however, reflects hostility toward both workers’ rights and basic civil rights. Throughout his career on the bench, he has consistently sided with employers over workers, putting the interests of corporations, the powerful, and the wealthy over the interests of everyday people.

 

Kavanaugh has repeatedly ruled against employees asserting claims of racial discrimination and has tried to make it more difficult for employees to have their cases heard in court.[xxxiv] In one case, he would have blocked an African-American women fired from her job from having her day in court,[xxxv] and in another, he would have prevented a black Muslim FBI agent of Jamaican descent from pursuing a retaliation claim.[xxxvi] Although Kavanaugh has, on occasion, recognized the availability of racial discrimination claims, including in a concurring opinion in which Kavanaugh noted that a single incident of a supervisor calling an employee the N-word could create a hostile environment,[xxxvii] his record suggests that Kavanaugh has adopted a narrow view of what constitutes racial discrimination: a view that does not reflect the reality of people’s lives.

 

In a 1999 interview with the Christian Science Monitor, Judge Kavanaugh remarked: “I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government.”[xxxviii] The adoption of colorblindness theory, however, only hides the ways in which racism manifests in our institutions, systems, and structures. Far from creating a more just society, colorblindness theory erases the experiences of people of color and prevents implementation of the remedial measures that would affirm the dignity, worth, and constitutional and civil rights of all people. Such a perspective also suggests an inability to appreciate how racial discrimination intersects with sexism and other forms of discrimination.

 

 

Gun Violence

 

Gun violence is a deeply feminist issue. According to a 2016 research study, about 4.5 million women in the U.S. have had an intimate partner threaten them with a gun, and nearly 1 million have been shot, or shot at, by an intimate partner.[xxxix] Around 50 women per month in the U.S. are shot to death by an intimate partner, and domestic violence victims are five times more likely to be killed when their partners have a firearm.[xl] Women of color are at particular risk. Black women, for example, are twice as likely to be fatally shot by an intimate partner as white women.[xli] Overall, women in the U.S. are 11 times more likely to be murdered with a firearm than women in any of our peer nations.[xlii]

 

Mass shootings are also often linked to violence against women. In at least 54 percent of mass shootings between 2009 and 2016, the shooters killed intimate partners or other family members.[xliii] Reporting also shows a large number of mass shooters with a history of violence against women or girls, including the Virginia Tech shooter, the Isla Vista shooter, and the Pulse Nightclub shooter.[xliv]

 

Gun violence is a crisis in the United States, but Kavanaugh’s record suggests an extreme view of the Second Amendment that would block common-sense gun laws designed to keep people safe. In the 2011 case District of Columbia v. Heller, a panel of three judges ruled 2-1 that a D.C. ban on assault weapons and high-capacity magazines was constitutional.[xlv] Judge Kavanaugh dissented, reasoning that there was “no meaningful or persuasive constitutional distinction” between assault weapons and handguns,[xlvi] the latter of which were found to be constitutionally protected in a 2008 Supreme Court case brought by the same plaintiff.

 

We are deeply concerned that Judge Kavanaugh does not appreciate a distinction between assault weapons and handguns. It is especially troubling given that in the 2008 Heller case, the Supreme Court cautioned that even though it had overturned D.C.’s handgun ban, the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[xlvii]

 

Sexual Harassment and Assault

 

The growing #MeToo movement in the U.S. has forced the country, once again, to reckon with our nation’s high rates of sexual harassment and assault. Though research on the prevalence of sexual harassment in the workplace is scarce, a recent online survey found that 81 percent of women have experienced some form of sexual harassment in their lifetime.[xlviii] Of that number, 77 percent had experienced verbal harassment, 51 percent had experienced unwelcome sexual touching, and 27 percent had experienced a sexual assault.[xlix] Looking specifically at workers, the Equal Employment Opportunity Commission (EEOC) determined that as many as 85 percent of women have been harassed at work.[l]

 

 

Workplace sexual harassment can have multiple, cascading effects on women’s economic advancement and also causes emotional and psychological distress. Most people do not report sexual harassment at work. Reviewing the available data, the EEOC determined that between 87 to 94 percent of individuals do not file a formal complaint.[li] These percentages may reflect the high levels of retaliation against those who do report. Up to 75 percent of employees who report sexual harassment face workplace retaliation, and many workers report that their claims were trivialized or that they faced hostility after speaking up.[lii]

 

The issue of workplace sexual harassment and assault are important in this context given Judge Kavanaugh’s relationship to Judge Alex Kozinski, who left the U.S. Court of Appeals for the Ninth Circuit in disgrace in late 2017 after former clerks, law students, and a fellow judge made over a dozen allegations of sexual harassment against him.[liii] Those allegations included unwanted sexual touching, asking for sex, and asking clerks to watch pornography with him in chambers.[liv]

 

Kavanaugh, of course, clerked for Judge Kozinski and has reportedly remained close to him. Judge Kozinski’s son even clerked for Kavanaugh in 2017-2018.[lv] The White House has claimed that Judge Kavanaugh “had never heard any allegations of sexual misconduct or harassment” by Kozinksi before the Washington Post reported on the allegations,[lvi] but many in the legal community have indicated that Kozinski’s behavior was an open secret.[lvii] It is therefore extremely important for this Committee to ask, and for Judge Kavanaugh to speak fully on, exactly what he knew about Kozinski’s behavior, whether he recommended people to clerk for Kozinski knowing of his behavior, and what, if anything, he has done to help the women who were harassed.

 

The Committee should also ask whether Judge Kavanaugh knew of, or was part of, Kozinski’s “Easy Rider Gag List,” which Kozinski used to share tasteless and sexually explicit “jokes” and material.[lviii] The “gag list,” reportedly included law clerks, federal judges, attorneys, and journalists. Clearly, engaging in this type of conduct would show incredibly poor judgment and would not demonstrate the type of character required for a member of the highest court in the nation.

 

Conclusion

 

Now more than ever, the public needs a Supreme Court Justice who will uphold the Constitution and protect the rights of all people. Brett Kavanaugh is not that judge. His record shows not only that he is hostile to reproductive rights and the Affordable Care Act, but that he has a pattern of putting the concerns of corporations, the wealthy, and the powerful over the interests of everyday people, with damaging consequences for women, workers, people of color, and other vulnerable communities.

 

The Supreme Court has the ability to shape our rights, our laws, and our democracy for generations to come; we therefore need a justice who will uphold the rule of law, for everyone, and has demonstrated the willingness and ability to be an independent check on presidential power. There is nothing in Brett Kavanaugh’s record that indicates that he is the right nominee for this job. We urge you to oppose his confirmation.

 

Sincerely,

 

 

 

Eleanor Smeal                                                                         Gaylynn Burroughs

President                                                                                 Director of Policy & Research

 

[i] Brett M. Kavanaugh, One Government, Three Branches, Five Controversies: Separation of Powers under Presidents Bush and Obama, Marquette Lawyer 9 (Fall 2016), https://law.marquette.edu/assets/marquette-lawyers/pdf/marquette-lawyer/2016-fall/2016-fall-p08.pdf.

[ii] Igor Bobic, “Not Just a Paper Pusher”: Former White House Staff Secretaries Weigh In on Kavanaugh Fight, Huffington Post (Aug. 8, 2018), https://www.huffingtonpost.com/entry/brett-kavanaugh-trump-staff-secretary_us_5b5f4fb5e4b0de86f4999a8b; Robert O. Harrow, Jr., Brett Kavanaugh: Bush’s Intellectual Body Man, Washington Post (Aug. 24, 2018), https://www.washingtonpost.com/investigations/brett-kavanaugh-bushs-intellectual-body-man/2018/08/24/7c6b989e-a0d8-11e8-b562-1db4209bd992_story.html?utm_term=.09336e73e8b0.

[iii] See Michael Kranish, Kavanaugh’s Role in Bush-era Detainee Debate Now an Issue in His Supreme Court Nomination, Washington Post (Jul. 18, 2018), https://www.washingtonpost.com/politics/kavanaughs-role-in-bush-era-detainee-debate-now-an-issue-in-his-supreme-court-nomination/2018/07/18/db8eb650-8a06-11e8-a345-a1bf7847b375_story.html?noredirect=on&utm_term=.ba7a43629c7d; Senator Patrick Leahy, Uncover the Truth about Brett Kavanaugh, New York Times (Jul. 23, 2018), https://www.nytimes.com/2018/07/23/opinion/brett-kavanaugh-supreme-court-senate-patrick-leahy.html.

[iv] Barton Gellman and Jo Becker, Pushing the Envelope on Presidential Power, Washington Post (Jun. 25, 007),  http://voices.washingtonpost.com/cheney/chapters/pushing_the_envelope_on_presi/.

[v] Jacquelyn Martin, $1 Million in Private Flights and a $31,000 Table—Here Are the 6 Trump Cabinet Members under Scrutiny for Their Lavish Spending of Taxpayer Money, Business Insider (Mar. 17, 2018), https://www.businessinsider.com/trump-cabinet-officials-spending-taxpayer-money-under-fire-2018-3.

[vi] Dan Alexander, New Details about Wilbur Ross’ Business Point to Pattern of Grifting, Forbes (Aug. 7, 2018), https://www.forbes.com/sites/danalexander/2018/08/06/new-details-about-wilbur-rosss-businesses-point-to-pattern-of-grifting/.

[vii] Jane C. Timm, White House Aide Rob Porter Resigns Amid Allegations of Domestic Abuse, NBC News (Feb. 7, 2018), https://www.nbcnews.com/politics/politics-news/white-house-aide-rob-porter-resigns-amid-allegations-domestic-abuse-n845611.

[viii] Elizabeth Williamson and Emily Steel, Bill Shine, Trump’s Top Communicator, Was Questioned by Federal Prosecutors, New York Times (Jul. 20, 2018), https://www.nytimes.com/2018/07/20/us/politics/bill-shine-trump-communications.html.

[ix] The National Archives, Press Release, National Archives Works to Release Records Related to Judge Brett M. Kavanaugh (Aug. 27, 2018), https://aotus.blogs.archives.gov/2018/08/27/national-archives-works-to-release-records-related-to-judge-brett-m-kavanaugh/.

[x] Leigh Ann Caldwell, The Battle to Confirm Kavanaugh Heats Up with Document Fight, NBC News (Aug. 5, 2018), https://www.nbcnews.com/politics/congress/battle-confirm-kavanaugh-heats-document-fight-n897371; Sheryl Gay Stolberg, Kavanaugh’s Opponents Protest Ex-Aide’s Role in Screening of Documents, Washington Post (Aug. 3, 2018), https://www.nytimes.com/2018/08/03/us/politics/kavanaugh-supreme-court-bush.html.

[xi] Adam Sonfield, Kinsey Hasstedt, and Megan L. Kavanaugh, The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, Guttmacher Institute (Mar. 2013), https://www.guttmacher.org/report/social-and-economic-benefits-womens-ability-determine-whether-and-when-have-children.

[xii] See Jacoba Urist, Social and Economic Benefits of Reliable Contraception, The Atlantic (Jul. 2, 2014), https://www.theatlantic.com/health/archive/2014/07/the-broader-benefits-of-contraception/373856/.

[xiii] Rachel Benson Gold, Lessons from before Roe: Will Past be Prologue?, Guttmacher Institute (Mar. 1, 2003), https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] See American College of Obstetricians & Gynecologists, Committee Opinion 613, Increasing Access to Abortion (Nov. 2014), https://www.acog.org/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Increasing-Access-to-Abortion.

[xix] See Marcela Howell and Ann M. Starrs, For Women of Color, Access to Vital Health Services is Threatened, The Hill (Jul. 26, 2017), http://thehill.com/blogs/pundits-blog/healthcare/343996-for-women-of-color-access-to-vital-health-services-is.

[xx] Brett M. Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist, 16 American Enterprise Institute (2017), http://www.aei.org/wp-content/uploads/2017/12/From-the-Bench.pdf.

[xxi] Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017).

[xxii] Id. at 752, 755, 756 (Kavanaugh, J., dissenting).

[xxiii] 808 F.3d 1 (D.C. Cir 2015) (Kavanaugh, J., dissenting)

[xxiv] See National Women’s Law Center, Millions of Women Have Gained Health Insurance Coverage Thanks to the Affordable Care Act (Apr. 11, 2018), https://nwlc.org/resources/millions-of-women-have-gained-health-insurance-coverage-thanks-to-the-affordable-care-act/.

[xxv] Donald J. Trump, @realDonaldTrump, Jun. 26, 2015, 9:38 am, https://twitter.com/realdonaldtrump/status/614472830969880576?lang=en.

[xxvi] Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011) (Kavanaugh, J., dissenting); Sissel v. US Dept of Health and Human Services, 799 F.3d 1035 (D.C. Cir 2015) (Kavanaugh, J., dissenting).

[xxvii] Justin Walker, Brett Kavanaugh Said that Obamacare Was Unprecedented and Unlawful, The Federalist (Jul. 3, 2018), https://thefederalist.com/2018/07/03/brett-kavanaugh-said-obamacare-unprecedented-unlawful/.

[xxviii] Sarah Kliff, 20 States File a New Lawsuit Arguing Obamacare is Illegal, Vox (Feb. 28, 2018), https://www.vox.com/policy-and-politics/2018/2/28/17064444/obamacare-aca-lawsuit-mandate-voxcare.

[xxix] Everyone Who’s Been Charged as a Result of the Mueller Investigation, New York Times (Aug. 21, 2018), https://www.nytimes.com/interactive/2018/08/21/us/mueller-trump-charges.html.  On August 31, 2018, as a result of the Mueller investigation, W. Samuel Patton, pled guilty to violating the Foreign Agents Registration Act. As part of his plea, the Washington Post reported, that Patton admitted that “he had steered an illegal foreign donation to Donald Trump’s inauguration, telling prosecutors that he arranged for an American citizen to act as a ‘straw donor’ to give $50,000 to Trump’s inauguration in place of a Ukrainian businessman who was legally barred from contributing to the event.” Spencer S. Hsu and Rosalind S. Helderman, In Guilty Plea, American Political Consultant Agreed He Steered an Illegal Foreign Donation to Trump’s Inauguration, Washington Post (Aug. 31, 2018), https://www.washingtonpost.com/local/public-safety/washington-consultant-for-ukraine-party-set-to-plead-guilty-to-violating-lobbyist-disclosure-law/2018/08/31/172cf2c8-ad23-11e8-a8d7-0f63ab8b1370_story.html?utm_term=.13b7d40cbc47.

[xxx] Brett M. Kavanaugh, Separation of Powers during the Forty-Forth Presidency and Beyond, 93 Minn. L. Rev. 1454 (2008).

[xxxi] See Mark Sherman, Kavanaugh: Watergate Tapes Decision May Have Been Wrong, AP (Jul. 22, 2018), https://apnews.com/3ea406469d344dd8b2527aed92da6365/High-court-nominee-gets-started-answering-questions.

[xxxii] Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2134, 2136 (1998).

[xxxiii] Id. at 2151.

[xxxiv] See generally, Demos, Report on the Record of Supreme Court Nominee Brett M. Kavanaugh: Demos Opposes Confirmation Because It Will Threaten Equal Justice for People of Color and the Future of Racial Equity (Aug. 30, 2018), https://www.demos.org/publication/report-record-supreme-court-nominee-brett-m-kavanaugh-demos-opposes-confirmation-because.

[xxxv] Howard v. OCAO of the U.S. House of Representatives, 720 F.3d 939 (D.C. Cir. 2013) (Kavanaugh, J., dissenting).

[xxxvi] Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012) (Kavanaugh, J., dissenting).

[xxxvii] Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring).

[xxxviii] See Demos, supra, note xxxiv (discussing the Christian Science Monitor interview).

[xxxix] Susan B. Sorenson and Rebecca A. Schut, Nonfatal Gun Use in Intimate Partner Violence: A Systematic Review of the Literature, Trauma Violence Abuse (Sept. 14, 2016), https://www.ncbi.nlm.nih.gov/pubmed/27630138.

[xl] Guns and Domestic Violence, Everytown for Gun Safety, https://everytownresearch.org/wp-content/uploads/2017/01/Guns-and-Domestic-Violence-04.04.18.pdf.

[xli] Gun Violence in America, Everytown for Gun Safety (Aug. 8, 2018) (citing FBI Uniform Crime Reports), https://everytownresearch.org/gun-violence-america/.

[xlii] Jenavieve Hatch, 11 Statistics that Remind Us Gun Violence is a Women’s Issue, Huffington Post (Jun. 7, 2007), https://www.huffingtonpost.com/entry/gun-violence-women_us_5931668be4b0c242ca232990.

[xliii] Everytown for Gun Safety, Mass Shootings in the United States 2009-2016 at 3 (Mar. 2017), https://everytownresearch.org/wp-content/uploads/2017/03/Analysis_of_Mass_Shooting_033117.pdf.

[xliv] See Nancy Leong, What Do Mass Shooters Have In Common? A History of Domestic Violence, Washington Post (Jun. 15, 2017), https://www.washingtonpost.com/news/posteverything/wp/2017/06/15/what-do-many-mass-shooters-have-in-common-a-history-of-domestic-violence/?utm_term=.8ff666d64466.

[xlv] Heller v. District of Columbia, 670 F.3d 1244, 1269 (D.C. Cir. 2011).

[xlvi] 670 F.3d at 1269 (Kavanaugh, J., dissenting).

[xlvii] District of Columbia v. Heller, 554 U.S. 570 (2008).

[xlviii] Stop Street Harassment, The Facts Behind the #MeToo Movement: A National Study on Sexual Harassment and Assault 14 (Feb. 2018), http://www.stopstreetharassment.org/resources/2018-national-sexual-abuse-report/.

[xlix] Id.

[l] Chai R. Feldblum and Victoria A. Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal Employment Opportunity Commission 8 (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.

[li] Id. at 16.

[lii] Id. at 16-17.

[liii] Maura Dolan, 9th Circuit Judge Alex Kozinski Steps Down After Accusations of Sexual Misconduct, Los Angeles Times (Dec. 18, 2017), http://www.latimes.com/politics/la-pol-ca-judge-alex-kozinski-20171218-story.html.

[liv] Matt Zapotosky, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct, Washington Post (Dec. 8, 2017), https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html?utm_term=.e83e86e9a931.

[lv] See Office of Senator Chuck Grassley, Press Release, Judge Kavanaugh Clerks Laud Nomination to Supreme Court (Jul. 11, 2018), https://www.grassley.senate.gov/news/news-releases/judge-kavanaugh-clerks-laud-nomination-supreme-court.

[lvi] Ryan J. Foley and Curt Anderson, Kavanaugh’s Ties to Disgraced Mentor Loom Over Confirmation, Washington Post (Aug. 29, 2018) (quoting White House spokeswoman Kerri Kupec), https://www.washingtonpost.com/national/kavanaughs-ties-to-disgraced-mentor-loom-over-confirmation/2018/08/29/fa31aaf4-abad-11e8-9a7d-cd30504ff902_story.html?utm_term=.0eb6b890eaf0.

[lvii] See Dahlia Lithwick, He Made Us All Victims and Accomplices, Slate (Jun. 7, 2018), https://slate.com/news-and-politics/2018/06/judge-alex-kozinski-made-us-all-victims-and-accomplices.html.

[lviii] Scott Glover, Judge E-Mailed Jokes to “Gag List,” Los Angeles Times (Dec. 8, 2008), http://articles.latimes.com/2008/dec/08/local/me-gaglist8

Texas Providers Ask Supreme Court to Block Restrictive Abortion Law

Reproductive health care providers in Texas have asked the US Supreme Court to block enforcement of unnecessary, harmful abortion restrictions in Texas that have closed all but eight of the state’s abortion clinics overnight.

via mirsasha
via mirsasha

The Center for Reproductive Rights, on behalf of the health care providers, filed an emergency application with Supreme Court Justice Antonin Scalia after Thursday’s decision by the US Circuit Court of Appeals for the Fifth Circuit to allow the immediate enforcement of two provisions – the ambulatory surgical center and admitting privileges requirements – of the Texas omnibus anti-abortion law, HB 2.

Before the enactment of HB2, Texas had 44 abortion clinics. That number was cut to 21 after parts of HB 2 went into effect, and the Fifth Circuit’s decision shuttered 13 more. As of Friday, the Rio Grande valley has not one abortion provider, and nearly one million women of reproductive age must now travel 300 miles round-trip to access abortion care.

“There can be no question that just a handful of clinics left to offer safe, legal abortion care to all women across of vast state of Texas is a dire emergency in need of an immediate response,” said Center for Reproductive Rights President and CEO Nancy Northup. “Every hour that these clinics are closed adds to the number of women, many facing urgent circumstances, who will be denied essential care and their constitutional rights. Every day that passes increases the likelihood that these shuttered clinics will never be able to open again.”

“Texas politicians, led by Governor Rick Perry, have closed not only nearly 80 percent of the state’s women’s clinics offering abortion services, but they have also closed an additional 55 clinics that do not provide abortion but provide birth control services, early cancer screenings, testing for sexually transmitted infections, and other vital women’s health services,” said Feminist Majority Foundation President Eleanor Smeal. “This is a total reactionary war on women’s health services. Young women will die, will be injured and maimed, to further their narrow political interests and ambitions.”

Both the admitting privileges requirement and the requirement that abortion clinics meet the building code specifications of ambulatory surgical centers were struck down as unconstitutional by US District Court Judge Lee Yeakel in August. The Fifth Circuit ruling nullified Yeakel’s decision. The emergency application asks Justice Scalia, who oversees the Fifth Circuit, to block enforcement of these provisions pending a final outcome of the case. He may either decide the application himself or refer it to the entire Court.

Media Resources: Center for Reproductive Rights 10/6/14; Feminist Newswire 10/3/14, 9/2/14; US Supreme Court

Court Sentences Seven Men for Gang Rape in Afghanistan

An Afghan court convicted seven men for the gang rape and robbery of four women in Paghman district near the city of Kabul.

via MA
via MA

According to reports, a group of men – some dressed in police uniforms and carrying assault rifles – stopped a group of cars traveling in Paghman last month, pulled the women from their cars, and raped them in a nearby field. The women had been traveling with their families; one was pregnant. The men also beat the women and stole their jewelry and phones. After the attack, the women were taken to a hospital by their families. The attack was reported to police after one of victims died in the hospital.

The vicious public attack received national attention and sparked outrage among Afghan women leaders. Last week, President Hamid Karzai speaking at a women’s group event after meeting with a delegation of women about the attack, said “I am strongly against the death penalty and I have always been against it, but I have asked for the death penalty, and I asked the Chief Justice to issue a death sentence for these criminals.”

Judge Safiullah Mujadidi conducted the trial on Sunday, which was televised nation wide in Afghanistan. During the trial, the victims appeared publicly in the courtroom to identify their attackers. Another woman, allegedly raped by the men three years ago, also identified the men as her attackers.

Hundreds of Afghan women and men rallied in the streets of Kabul chanting and holding signs saying, “My sister is your sister,” “Raping women is raping the nation,” and ”We demand justice from the government.” The Afghan Women’s Network held rallies in eight cities in Afghanistan calling for “immediate justice” and showing support for the victims.

After a short trial, the court convicted all seven men on various counts related to the attack, and sentenced them to death. Human Rights Watch has expressed concern over the speed of the trial – which reportedly lasted only two hours – and possible due process violations. The men will have a chance to appeal.

The Paghman attack has brought national attention to violence against women in Afghanistan and the need for a more robust response to crimes committed against women. One activist on Sunday, told reporters, “If this act goes unpunished, the women of Afghanistan will continue to be victims. This is really a very significant moment, I would say, even maybe in the history of Karzai’s government.”

President Karzai issued the Elimination of Violence against Women Law (EVAW Law) in 2009 by executive decree. The law criminalizes 22 acts of violence against women and specifies punishment for perpetrators. The law, however, has had mixed results. While more crimes against women have been reported, overall there is still massive under-reporting of violence against women, according to a report released by United Nations Assistance Mission in Afghanistan (UNAMA) and the Office of the UN High Commissioner for Human Rights (OHCHR) last year. In addition, the report found inadequate investigation of these crimes and continued lack of prosecution. 

Media Resources: Global Voices Online 9/8/14; Human Rights Watch 9/8/14; Reuters 9/7/14; Tolo News 9/7/14; Feminist Newswire 12/9/13

Hobby Lobby Ruling May Reach All Forms of Contraception

The US Supreme Court on Tuesday issued a series of orders suggesting that its decision in Burwell v. Hobby Lobby applies to all forms of contraception and not just the methods at issue in the Hobby Lobby case.

via Shutterstock
via Shutterstock

The owners of Hobby Lobby and Conestoga Wood had mounted a legal challenge to only two methods of birth control covered by the Affordable Care Act (ACA) contraceptive coverage benefit, the IUD and emergency contraception, which – according to their religious beliefs and despite science to the contrary – they considered abortifacients. The Supreme Court on Tuesday, however, signaled that its decision, that the government could not require these companies to provide these methods of birth control, reaches beyond these methods to include all forms of contraception, and possibly even counseling about contraceptive services.

The Court issued orders to lower federal courts in six cases. In three of those cases, a federal appeals court had upheld the contraceptive coverage benefit against challenges from for-profit companies. The Court on Tuesday directed these courts to reconsider their rulings in light of the Hobby Lobby decision. In the other three cases, however, the federal appeals courts had ruled against the government and for the companies. In all of those cases, the Court denied review of the lower courts’ decisions, with no explanation.

Each of the cases in the federal appeals courts involved Catholic owners of various profit-making businesses. Each owner claimed religious objections to all contraceptive services required by the ACA, including all FDA-approved forms of birth control, sterilization, and counseling.

Media Resources: LA Times 7/2/14; The Nation 7/2/14;  SCOTUS Blog 7/1/14

Around the World, Mother’s Day Is A Call to Action

Becoming a mother was not the blissed-out, exhilarating experience I thought it would be. It was painful, scary, and the only time I have ever felt truly out-of-control. When I went to the hospital, I was expecting an “easy” birth. My pregnancy had not been particularly difficult, and I was slated to deliver in the hospital’s birthing center – but then, there were complications.

Ultimately, I had an emergency cesarean-section. I have only the faintest memory of my daughter’s entrance into the world. I didn’t hold her on my chest after hearing her first cries. I don’t even remember her first cries. And I didn’t bond with her after her birth – she went one way, and I went another.

via Shutterstock
via Shutterstock

To say I was disappointed would be an understatement. But here’s the thing: becoming a mother didn’t cost me my life. Not even close. There was never any danger of that. And it didn’t cost my daughter hers either. She went to the NICU and was attended to by an expert team of doctors and nurses.

Some moms aren’t so lucky.

Around the world, one woman dies every two minutes from complications in pregnancy and childbirth – almost 800 moms every day. 99 percent of these deaths occur in the developing world, with about one-half occurring in sub-Saharan Africa and Southern Asia. And millions more women suffer from injury, infection, or disease during pregnancy or childbirth.

The shocking thing? The vast majority of maternal death and injury is preventable.

The common causes of maternal death are well known: severe bleeding during or after childbirth; hypertension, or high blood pressure, during pregnancy; sepsis and infections; prolonged or obstructed labor; and unsafe abortion. Effective, life-saving, interventions exist for all of these causes – but for many women, lack of access to quality reproductive and maternal health care quite literally means death.

Afghanistan once had the highest maternal mortality ratio in the world, with estimates as high as 1800 deaths per 100,000 live births. Although still unacceptably high, the latest survey of maternal death in Afghanistan shows a steep decline to 327 deaths per 100,000 live births, though this number may be as high as 500 deaths per 100,000 live births given survey restraints. Several factors contributed to this drop, including increases in antenatal care and assisted deliveries, made possible by increases in the number of health facilities and the number of trained midwives, which has more than tripled since 2002. The Feminist Majority Foundation was involved in the efforts to train and mobilize more midwives in Afghanistan, and we did that because we knew it would save lives.

via The World Bank
via The World Bank

Access to family planning also saves lives. Achieving universal access to reproductive health and family planning is part of the United Nations Millennium Development Goal to reduce maternal mortality by three-quarters by 2015, but still an estimated 222 million women around the world who wish to either delay or prevent pregnancy lack access to contraceptives. According to research by the Guttmacher Institute, meeting the contraceptive needs of these women would prevent 54 million unplanned pregnancies per year as well as 79,000 maternal deaths, mostly in sub-Saharan Africa, and 16 million unsafe abortions. Children would benefit too; meeting the demand for contraceptives would prevent over 1 million infant deaths.

The United States, of course, has a big role to play in meeting the need for contraception worldwide, but current funding for international family planning and reproductive health programs will not allow for these ambitious goals to be met. US funding for these programs has remained stagnant since 2012, despite calls for the US to raise its level of funding to $1 billion, representing its fair share of global aid. Around the world, women are also unable to access contraception at PEPFAR sites meant to help reduce the rate of HIV/AIDS.

Investing in family planning yields high returns. Every $1 spent on family planning saves $4 in other development costs in areas such as water and sanitation, maternal health, and education. But more importantly, it saves lives. The United States must show itself to be a true global leader in reducing maternal death. This is especially important for adolescent girls. Complications from pregnancy and childbirth are the leading cause of death for girls ages 15-19 in poorer countries. And the risk of maternal death for girls 14 and under is double that of adult women. These younger girls also face higher rates of obstetric fistula.

To fully combat maternal death, however, we need to take an even broader approach. We must empower women and girls economically and socially, confront sexual violence and conflict, and provide comprehensive health care, including access to safe abortion to women and girls who are victims of war rape. We must end child marriage and ensure that girls everywhere have access to basic education.

We are not short of ideas.

This Mother’s Day, let’s take action. Let’s start educating ourselves and our representatives on the need for more international family planning funding. Let’s continue to ask for more aid and continuous support for places like Afghanistan that are still developing quality reproductive and maternal health care systems. And let’s pledge never to stop calling attention to the war on women’s rights and human rights – in the US and around the world.


The Feminist Majority Foundation works tirelessly to improve maternal health around the world. Make a donation today to join us in the fight.

The Affordable Care Act Makes the Gift of Health Insurance Possible

The Affordable Care Act (ACA) is more than just a piece of legislation in my home. My mom has been waiting for health insurance for nearly a decade. But now, thanks to the ACA, or Obamacare, my mom can finally gain access to the coverage she needs.

For almost ten years, I have heard my mom use the “Am I that sick?” test for determining when to see a doctor. She has had to rely on pharmaceutical samples for medicine, has gone without recommended lab tests, and has rebalanced her budget countless times to deal with medical emergencies.

She once called me after a slip and fall. She had broken her arm, but did not want to call for an ambulance because it was too costly.  Thankfully, she was able to reach a friend who could drive her to the nearest hospital. Victory, however, was short-lived, as her visit to the ER turned into an unexpected expense amounting to thousands of dollars, meaning that for months, she had to use her credit card to pay for basic necessities, like food, gas, and utilities.

Last Sunday, though, my mom sat down at my kitchen table and did what millions of Americans are doing at kitchen tables across the nation. She sat down, went on Healthcare.gov, discovered that she qualified for a tax credit to help her afford quality health insurance, and then found 86 health plans from which to choose. All in less than 10 minutes.

via Shutterstock
via Shutterstock

By offering financial help to those who need it, the ACA puts health insurance within reach for people like my mom. Like many of us, when my mom lost her job, she lost her health insurance coverage. COBRA, however, was out of the question – it was far too expensive, especially given lost income. And with premiums of over $700 per month, my mom could not afford an individual health insurance plan.

Her situation is not unique. In 2012, 61 percent of adults without health insurance reported being uninsured because the cost of insurance was too high or because they had lost their job.

My mom’s tax credit – of almost $300 per month – means that she can finally, realistically, shop for a healthcare plan. And the ACA ensures that insurance companies can’t charge her more just because she’s a woman. Nor can she be denied coverage because of any pre-existing conditions.

So, last Sunday, my mom began comparing health insurance plans on Healthcare.gov. We were able to sort plans by category, cost, and coverage and then see side-by-side comparisons. And while there were important differences in the available options, each plan must cover a set of essential benefits, including hospitalization, lab tests, prescription drugs, and more.

Once my mom decides on a plan, she will finally be able to see a primary care doctor, receive preventive care, undergo regular breast cancer screenings, and protect herself from financial instability in case of emergency.

All plans must also cover well-woman visits with no cost sharing, meaning that you cannot be charged a co-pay or co-insurance, even if you haven’t yet met your deductible. Cervical cancer screenings, counseling for STIs, birth control, prenatal care, and breastfeeding support are just some of the services that are covered without any additional costs.

According to the U.S. Department of Health and Human Services, the ACA will give 18.6 million uninsured women access to affordable, quality health insurance. That means that millions of women who went without preventive care, went without care for chronic diseases, or went without prescription drugs, can now afford to access life-saving services. I’m happy to report that my mom is one of them.

For coverage beginning on January 1, 2014, you must enroll by December 23, 2013.  Treat yourself, and your family, to the gift of health insurance this year.  Tell your neighbors and friends. Now is the time to #GetCovered.

feature image via Shutterstock.

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