Article by Jessica Williams
As Judge Brett Kavanaugh’s hearing in the Senate Judiciary Committee to become a Supreme Court justice began last Tuesday, it became immediately clear that his stance on abortion would take center stage. The Hart Senate Office building was filled with protesters dressed as ‘handmaids’ from Margaret Atwood’s dystopian “The Handmaid’s Tale,” reflecting fears that Kavanaugh’s appointment would lead to a country in which women do not have control over their reproductive decisions. As the hearing has progressed, though, little information about Kavanaugh’s stance on abortion has come to light.
When asked about a woman’s right to abortion, Kavanaugh described the current precedent—Roe v. Wade’s 1973 establishment of abortion as a constitutional right, and Planned Parenthood v. Casey’s 1992 reaffirmation of that decision. While he did say that “precedent also reinforces the impartiality and independence of the judiciary,” new leaked documents suggest he may be willing to overrule the Roe precedent. In a 2003 email he stated “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.”
While Kavanaugh has given no assurances of how he would rule on abortion rights, on Wednesday he defended a pro-life dissent he made last fall. In this dissent, his only abortion ruling during his 12 years on D.C.’s appellate court, Kavanaugh ruled to delay an abortion for a migrant teenager in immigration custody. In his decision, he blamed liberal colleagues for establishing a “new right for unlawful immigrant minors in U.S. government detention to obtain abortion on demand.”
A Kavanaugh confirmation will likely have serious implications for reproductive rights in the United States. Tipping the balance of the court to the right, Kavanaugh could be the deciding factor in the future of Roe, as well as the future of reproductive rights more generally. About two dozen cases—focusing on topics ranging from Planned Parenthood’s Medicaid funding to birth control under Obamacare— are currently working through appeals courts. With a man who called contraception ‘abortion-inducing drugs’ newly confirmed as a justice, the fate of these cases under the Supreme Court is yet to be seen.