Would Brett Kavanaugh overturn Roe? Supreme Court pick’s record offers mixed clues
WASHINGTON, D.C., July 10, 2018 (LifeSiteNews) – With President Donald Trump’s Supreme Court nominee revealed, pro-life activists are now turning their attention to attempting to discern Judge Brett Kavanaugh’s likelihood of voting to overturn Roe v. Wade, which made America one of the most liberal abortion regimes in the world.
Trump announced Monday night that the District of Columbia circuit judge was his choice to replace the retiring Justice Anthony Kennedy, hailing Kavanaugh as a “brilliant jurist” who “can set aside [his] views to do what the law and Constitution require[s].”
Kavanaugh quickly won the endorsements of several pro-life groups, including the National Right to Life Committee and Susan B. Anthony List, which already announced plans to mobilize grassroots activists to “urge the Senate to swiftly confirm Judge Kavanaugh.”
Others took a more cautiously hopeful tone, with Live Action president Lila Rose simply “encourag[ing] Brett Kavanaugh to uphold the Constitution and support the most basic human right — the right to life — for all people.”
Before the president’s announcement, the Washington Examiner relayed a quote from an unnamed source close to the White House that “there are concerns in the pro-life community that his decisions in some cases mean he’s not as solidly pro-life as we would like him to be.” Critics have pointed to cases in which he arrived at the pro-life outcome, but his reasoning arguably suggested openness to other pro-abortion legal claims.
On the D.C. Court of Appeals, Kavanaugh sided with Priests for Life against the Obama administration’s contraception mandate, but also suggested the government has a “compelling interest in facilitating access to contraception for the employees of...religious organizations.” (Since then, the case has been settled and the Trump administration has worked to dismantle the mandate and other anti-conscience rules.)
Kavanaugh also ruled that there was no “right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand,” although he based his decision in part on the theory that the delay in obtaining an abortion didn’t constitute an “undue burden” whereas his colleague Judge Karen LeCraft Henderson recognized the illegal immigrant had no right to abortion at all. Critics argue Kavanaugh should have joined the stronger opinion; defenders say he was merely operating within the framework that both sides of the suit agreed on.
Kavanaugh has also touched on the subject of Roe itself on a couple of occasions, but without presenting clear-cut proof of his legal position.
During his 2006 confirmation hearings to the D.C. Circuit, Kavanaugh testified that he “would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court, it’s been decided by the Supreme Court.” He added that “it’s been reaffirmed many times, including in Planned Parenthood v. Casey,” and, “I don’t think it would be appropriate for me to give a personal view.”
Ed Whelan of the Ethics and Public Policy Center, a conservative legal analyst who favors overturning Roe, defended Kavanaugh on this point Tuesday by stressing that his comments “related entirely to” the role of a lower court judge bound to defer to higher courts, and “do not speak to [the] role of” a Supreme Court Justice.
As how Kavanaugh would rule on the highest court, perhaps the most encouraging evidence comes from a speech he delivered last year to the American Enterprise Institute on the legal philosophy of the late Chief Justice William Rehnquist, whom he called “my first judicial hero.”
“Rehnquist’s dissenting opinion [in Roe…] stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people,” Kavanaugh summarized. “Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion.”
“Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis,” he continued. “But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
While Kavanaugh was summarizing Rehnquist’s thinking and not explicitly adopting it as his own (nor did he say whether he interprets stare decisis to mean Roe should survive regardless of that critique), his summary of Roe as “freewheeling judicial creation of unenumerated rights” may be the clearest indicator yet that he thinks the case was wrongly decided.
While many in pro-life and conservative circles are celebrating Kavanaugh’s nomination, some suggest now is the time to scrutinize these and other ambiguities.
“I look forward to the process in the Senate, getting to know Judge Kavanaugh and his family better in coming months, and, hopefully, voting to confirm him to the Supreme Court in the fall,” Sen. Mike Lee, R-UT, said Monday evening, hopeful but not yet committing to confirmation.
“I’ll keep an open mind,” conservative commentator and former Reagan administration advisor Mark Levin wrote. “But the conservative senators on the Senate Judiciary Committee must use the confirmation hearing to ask him legitimate questions to verify his backers’ claims that he’s a textualist and originalist.”