SCOTUS: Kavanaugh suggests precedent will govern future abortion decisions


Supreme Court justice nominee Brett Kavanaugh suggested precedent would guide his thinking when it comes to deliberating on any Roe v. Wade challenges, but he came short of saying that he would not support overturning the landmark abortion rights case.

Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on Sept. 5, 2018. Courtesy C-SPAN

Testifying Sept. 5 before the Senate Judiciary Committee during a confirmation hearing, Judge Kavanaugh noted that the decision of Roe v. Wade has been reaffirmed in follow-up cases, and that would play a significant role in his approach to future challenges.

Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the panel, asked Judge Kavanaugh if he agreed with Justice Sandra Day O’Connor that “a woman’s right to control her reproductive life impacts her ability to ‘participate equally in the economic and social life of the nation?’ ”

“As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” Judge Kavanaugh replied. “So Roe v. Wade held, of course, and is reaffirmed in Planned Parenthood v. Casey, that a woman has a constitutional right to obtain an abortion before viability, subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden on the woman’s right to obtain an abortion. One of the reasons for that holding, as explained by the court in Roe and also in Planned Parenthood v. Casey more fully, is along the lines of what you said, Sen. Feinstein, about the quote from Justice O’Connor.”

He continued: “That’s one of the rationales that undergirds Roe v. Wade. It’s one of the rationales that undergirds Planned Parenthood v. Casey.”

Sen. Feinstein followed by noting reports quoting Judge Kavanaugh as saying Roe v. Wade was “settled law,” inquired what that term means, and asked for further clarification as to whether it was settled precedent and whether it could be overturned.

“Senator, I said that it’s settled as a precedent of the Supreme Court, entitled the respect of principles of stare decisis,” he responded, referencing the legal principle of determining points in litigation according to precedent. “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood v. Casey in 1992. And as you well recall, Senator, I know when that case came up, the Supreme Court didn’t just reaffirm it in passing, the court specifically went through all factors of stare decisis in considering whether to overrule it.”

He noted that the joint opinion of Justice Anthony Kennedy, Justice O’Connor, and Justice David Souter, went to “great length” to go through those factors.

Judge Kavanaugh called Planned Parenthood v. Casey a “precedent-on-precedent. It is not as if it’s just a run-of-the-mill case that was decided and never been reconsidered. Casey specifically reconsidered [Roe v. Wade], applied the stare decisis factors and decided to reaffirm it. That makes Casey precedent-on-precedent.”

That said, Judge Kavanaugh did not say outright that Row v. Wade would not be overturned because of these factors.

The first 2 days of Judge Kavanaugh’s confirmation hearing were frequently interrupted by protesters shouting objections to his nomination. At press time, more than 120 protesters had been arrested, according to the U.S. Capitol Police.

Health care did surface in questions about the Affordable Care Act and in specific the current legal action in Texas that is looking to kill the health care law, but Judge Kavanaugh declined to answer any questions surrounding it, stating that he did not want to prejudge any potential case that could come before him.

Much of the questioning he faced was more geared toward opinions on presidential powers, including whether presidents could avoid subpoenas and whether a president could pardon himself, but he declined to answer those questions because they are ones that could come before him given the current political environment.

Judge Kavanaugh painted himself as of independent thought, pushing back at those who are saying that he will serve to protect the president and act as his puppet on the bench, citing cases where he went against former President George W. Bush, for whom he served as White House staff secretary and who eventually was appointed him to the D.C. Circuit Court in May 2006.


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