WASHINGTON, D.C., September 6, 2018 (LifeSiteNews) – Sen. Lindsey Graham, R-South Carolina, pressed Judge Brett Kavanaugh on the Supreme Court divining “rights” that aren’t in the Constitution’s text, specifically citing abortion and Roe v. Wade.
Graham asked Kavanaugh during Thursday's hearings on whether the Constitution explicitly mentions a “right” to abortion. “Is anything written in the document?”
“Senator, the Supreme Court has recognized the right to abortion,” Kavanaugh answered. “It has reaffirmed it many times.” Graham pressed him on whether the court specifically found abortion was in a particular clause of the Constitution.
“It's a pretty simple ‘no, it's not, Senator Graham,’” the senator quipped. “Is there any phrase in the Constitution about abortion?”
“The Supreme Court has found it under the Liberty Clause, but you’re right that the specific word” is not there, Kavanaugh admitted. Graham then noted that the Liberty Clause did not specifically mention abortion, either.
“Here’s the point: what are the limits on this concept?” he asked. “What are the checks and balances on people in your business, if you can find five people who agree with you, to confer a right, whether the public likes it or not, based on this concept of a penumbra of rights? What are the outer limits to this?”
Kavanaugh responded by invoking Washington v. Glucksberg, which upheld a state ban on assisted suicide. It established a test for determining unenumerated rights (i.e., rights not explicitly spelled out), which in Kavanaugh’s words boiled down to whether the “right” in question was “rooted in the history and tradition of the country, so as to prevent … ”
Graham interrupted him to ask if there was any abortion right rooted in America’s history or tradition. Kavanaugh attempted to fall back on current Supreme Court abortion precedent, but Graham questioned how the Roe court concluded that abortion had such roots, then reiterated his challenge about limits on the court’s power to decide “liberty” means whatever they decide.
Kavanaugh suggested that Congress was ultimately powerless to defy the Supreme Court’s interpretation of liberty, and that a constitutional amendment would be the only recourse in such situations.
The reason some legal scholars object to this concept, it’s breathtakingly unlimited. Whatever any five people believe at any time in history, because of the word liberty, they can rewrite our history,” Graham concluded. “And I think the best way for democracies to make history is to have the courts interpret the Constitution, be a check and balance on us, but not take one word and create a concept that is breathtaking in terms of its application to restrict the legislative process.”
The exchange offers more mixed signals in the continuing efforts to predict Kavanaugh’s stance on Roe. Conservatives hope and liberals fear he would provide the long-awaited fifth vote to overturn it and let states and Congress directly vote on whether abortion should be legal.
His suggestion that unenumerated rights must be “rooted in the history and traditions of the country” may be further evidence he opposes Roe; in a 2017 speech on the late Chief Justice William Rehnquist, Kavanaugh cited the fact that his “first judicial hero” could “not reach such a conclusion about abortion.”
On the other hand, Kavanaugh continued his pattern of expressing significant respect for the Court’s previous abortion rulings under the the doctrine of stare decisis (following judicial precedent).