In a concurrence, Senior Judge Joel Edward Durbina added, “I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Overall, the tone is that of Henry II contemplating ecclesiastical opposition: “Will no one rid us of this pestilent precedent? When will the Supreme Court get rid of it?” (The third member of the panel, District Judge Leslie Abrams, dissociated herself from the court’s reasoning: “I concur in the judgment only.”)

That Oh, please, do I have to? echoes in Brett Kavanaugh’s sole opinion on the issue of choice, a 2017 dissent in Garza v. Hargan. That case concerned an underage woman from Central America apprehended at the southern border of the United States. After Customs and Border Protection took her into custody on a charge of illegal entry, she discovered she was pregnant. She requested access to an abortion. She obtained a state court order that she was fit to make that decision for herself—no easy task in a red state like Texas—and the pre-abortion counseling from a physician required under state law.

Had she been a convict in federal prison, there would have been no further question. But as an unaccompanied minor, she was being held by the Department of Health and Human Services. Under new Trump-administration policies, HHS claimed the power to block her from leaving custody unless she obtained an approved sponsor to whom she could be released. Otherwise, the government argued, allowing her to exercise her right to choose would require the government to “facilitate” abortion.

In front of the D.C. Circuit, the government said it should be allowed to continue to search for a sponsor for two more weeks; attorneys for the woman warned that further delay might push her outside of the zone in which abortion was legal at all. The court’s en banc majority held that once the woman had complied with state law, the federal government’s opposition to abortion did not give it the power to block her from obtaining one, sponsor or no.

The dissent, however, might have been headed “Kavanaugh, J., rolling eyes.”

Kavanaugh’s tone is not anti-abortion; instead, he talks about the issue as if it were some incomprehensible and extraneous bit of nonsense being imposed on the court and the government by something called “Supreme Court precedent.” Readers can easily infer what Kavanaugh believes about abortion and the cases that protect the right to choose, but Kavanaugh won’t tell. Engaging the issue directly might have put a future Supreme Court nomination in jeopardy. An overarching commitment to protecting his own viability seems to me one of the keys to understanding Kavanaugh’s jurisprudence.He would say only that “all parties have assumed … that unlawful immigrant minors such as Jane Doe have a right under Supreme Court precedent to obtain an abortion in the United States.” He made no attempt to see the case from her point of view, or to stipulate that a young woman has an interest in making her own decisions. The government wanted her to make a different decision; the court should have stayed out of it and let the bullying continue.