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Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2), Sept. 5, 2018. C-SPAN / Youtube screen grab
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Abortion lobby pounces on Kavanaugh email recognizing legal debate about Roe v. Wade

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Ilyse Hogue, President of NARAL Pro-Choice America Claire Chretien / LifeSiteNews

WASHINGTON, D.C., September 6, 2018 (LifeSiteNews) – Pro-abortion advocates are seizing upon a 2003 email from Judge Brett Kavanaugh as evidence he’s a lock to overturn Roe v. Wade if confirmed to the Supreme Court, finally enabling voters to decide whether to ban abortion.

First revealed by the New York Times Thursday and written while Kavanaugh was serving as an attorney in the Bush administration, the email suggested a handful of edits to a draft opinion article in support of one of former president George W. Bush’s lower court nominees.

“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” Kavanaugh wrote. The statement does not stake out a position on Roe’s merits and merely recognizes that there exist scholars who disagree with one another; in fact, many who favor legal abortion have nevertheless acknowledged Roe’s legal defects.

Even so, pro-abortion politicians, activists, and media outlets have taken the note as a smoking gun to Kavanaugh’s true position.

“Kavanaugh doesn't think Roe v. Wade is ‘settled law’ — or safe from being overturned,” Planned Parenthood Action Fund warned its followers. “This makes it crystal clear that his beliefs on Roe do not align with his testimony yesterday.”

“Brett Kavanaugh’s emails are rock solid evidence that he has been hiding his true beliefs and if he is given a lifetime seat on the Supreme Court, he will gut Roe v. Wade, criminalize abortion, and punish women,” NARAL president Ilyse Hogue said, according to the Huffington Post.

“We have every reason to believe Kavanaugh will overturn Roe v. Wade,” Sen. Kamala Harris, D-CA, declared. Sen. Dianne Feinstein, D-CA, added that “Brett Kavanaugh can evade our questions on Roe all he likes, but he can’t dodge his own words in this email.”

The emails “show how little [Kavanaugh’s testimony] really means,” Vox’s Anna North wrote. Abortion supporters “were right to worry,” because the emails supposedly confirm that “where the Supreme Court is concerned, calling something ‘settled law’ is meaningless.”

Democrats on the Senate Judiciary Committee pressed Kavanaugh on the email Thursday. He told Feinstein that his only interest in the 2003 exchange was accuracy, and that the draft he was correcting “might be overstating the position of legal scholars.”

He stressed to Sen. Richard Blumenthal, D-CT, that accurately representing the landscape of legal thought was separate from “my position as a judge,” which was that “there’s 45 years of precedent and there’s Planned Parenthood v. Casey, which reaffirmed Roe. So that’s precedent on precedent, as I’ve explained, and that’s important. And that’s an important precedent to the Supreme Court.”

Kavanaugh’s abortion answers this week continue to be a political Rorschach test for abortion friends and foes. Throughout his testimony he has expressed significant respect for the current precedent of Roe through Planned Parenthood v. Casey, invoking the doctrine of stare decisis. His supporters and opponents alike argue that his answers are phrased to navigate a narrowly-divided Senate, and that he ultimately would vote to overturn Roe.

Others are less sure. “It seems that with every new GOP nominee, with the exception of Alito, the nominees get more categorical with their agreement that Roe is settled, and it seems that Kavanaugh used the most unqualified language,” Conservative Review’s Daniel Horowitz writes. “He could have asserted the Ginsburg standard and remained neutral, or he could have gone the Alito route and said that all precedents deserve special consideration, but they are not infallible and that he’d have to judge each case.”

On the other hand, the strongest evidence that Kavanaugh would oppose Roe is a 2017 speech on the jurisprudence of his “first judicial hero,” the late Chief Justice William Rehnquist. He approvingly cited Rehnquist’s judgment that a right to abortion was not “rooted in the traditions and conscience of our people,” and that Roe was an example of “freewheeling judicial creation of unenumerated rights.”

Kavanaugh reiterated Thursday in an exchange with Sen. Lindsey Graham, R-SC, that the “history and traditions” of the country were critical to assessing claims about any right not explicitly listed in the Constitution, though the day before he also approvingly cited an example of Rehnquist upholding something he disagreed with, because it was precedent.

Interested readers can follow the Senate Judiciary Committee’s third day of confirmation hearings in real time with C-SPAN’s live video and SCOTUSBlog’s live blog of highlights.

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