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Kavanaugh, who told Senate Roe v. Wade was ‘settled as precedent,’ signals openness to overturning abortion decision

During oral arguments on Dec. 1, Justice Brett M. Kavanaugh argued that the “other side” thinks the court should leave abortion rights to each state. (Video: The Washington Post)
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Supreme Court Justice Brett M. Kavanaugh on Wednesday repeatedly indicated he would be open to overturning “settled law,” including Roe v. Wade, citing a long list of past Supreme Court cases that had been ruled against precedent.

Those cases, Kavanaugh said, included Brown v. Board of Education, which outlawed the “separate but equal” doctrine; Baker v. Carr, which set the stage for one person, one vote; West Coast Hotel v. Parrish, which recognized the state’s authority to regulate business; and Miranda v. Arizona, which required police to give Miranda warnings about the right to remain silent and have an attorney present to suspects in criminal custody.

“If we think that the prior precedents are seriously wrong … why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is to return to the position of neutrality?” Kavanaugh at one point asked Center for Reproductive Rights attorney Julie Rikelman, who is representing the abortion provider suing Mississippi’s new law that bans most abortions after 15 weeks of pregnancy.

It was one of several times Kavanaugh would return to his argument Wednesday that the Constitution was “silent and therefore neutral” on the issue of abortion as the Supreme Court heard arguments over the Mississippi law and the fate of the 1973 decision. In another line of questioning that was somewhat friendly to Mississippi Solicitor General Scott G. Stewart, Kavanaugh seemed to be looking ahead to hypothetical situations if Roe v. Wade were overturned and if the question of abortion rights were returned to states to decide.

“As I understand it, you’re arguing that … the Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate?” Kavanaugh asked Stewart.

He also asked Stewart to confirm that, if Mississippi were to prevail, the “majority of states” could, or presumably would, continue to freely allow abortion. Stewart said he agreed.

Kavanaugh’s statements on Wednesday differed — if not in substance than certainly in tone — from the impression he left for some in 2018, during his Senate confirmation process. The question of how he would rule in a challenge to Roe v. Wade came up multiple times during his confirmation hearings, and at the time, Kavanaugh emphasized that Roe v. Wade was “settled as precedent.”

After an 11-10 committee vote in favor of Supreme Court nominee Brett Kavanaugh on Sept. 28, the nomination will now head to the full Senate for confirmation. (Video: Joyce Koh/The Washington Post)

In one exchange with Sen. Dianne Feinstein (D-Calif.) then, she asked if he agreed with former Justice Sandra Day O’Connor that a women’s right to control her reproductive life impacted her ability to “participate equally in the economic and social life of the nation.”

Kavanaugh responded by saying that, “as a general proposition,” he understood the importance of the precedent set in Roe v. Wade, and outlined the rationales that undergirded both Roe and Planned Parenthood v. Casey, which reaffirmed a woman’s constitutional right to obtain an abortion before fetal viability.

Feinstein then outright asked Kavanaugh what he meant by “settled law” and whether he believed Roe v. Wade to be correct law. Kavanaugh said he believed it was “settled as a precedent of the Supreme Court” and should be “entitled the respect under principles of stare decisis,” the notion that precedents should not be overturned without strong reason.

“And 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,” Kavanaugh said then.

Shortly afterward, Feinstein interrupted Kavanaugh to note that she had sat through nine confirmation hearings for Supreme Court justices, who had expressed similar sentiments about stare decisis.

“And when the subject comes up, the person says, ‘I will follow stare decisis,’ and they get confirmed, and then, of course, they do not,” she told Kavanaugh.

Kavanaugh did not answer Feinstein directly, instead pivoting to how he understood “how passionate and how deeply people feel about this issue.” He went on at length to talk about how Planned Parenthood v. Casey had reaffirmed Roe, making it “a precedent on precedent.”

“I understand the importance of the issue. I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh said. “I do not live in a bubble. I understand. I live in the real world. I understand the importance of the issue.”

Sen. Susan Collins (R-Maine) delivered a 45-minute long speech on the Senate floor before confirming her support of Supreme Court nominee Brett Kavanaugh. (Video: Joyce Koh/U.S. Senate)

Kavanaugh’s remarks in his confirmation hearings came in conjunction with reports that he had privately reassured Sen. Susan Collins (R-Maine) that he thought Roe v. Wade was settled law to convince her to support his nomination. Collins would go on to express her full confidence in several interviews that Kavanaugh would not overturn Roe v. Wade.

“I would not support a nominee that demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions,” she told CNN at the time.

The Senate ultimately confirmed Kavanaugh in a 50-to-48 vote.

On Wednesday afternoon, Collins claimed not to have seen Kavanaugh’s questioning or heard any of the oral arguments on the Mississippi case earlier in the day.

“I hope to later tonight play them so that I have firsthand knowledge of what the arguments were today, but I can’t comment on what I didn’t [watch],” Collins told reporters at the Capitol.

When asked if she was concerned about the future of Roe v. Wade, Collins replied, “I’m for Roe.”

Seung Min Kim contributed to this report.

Read more:

Fate of Roe v. Wade in the hands of the Supreme Court after spirited arguments

What the Supreme Court justices have said about abortion and Roe v. Wade

What abortion laws would look like if Roe v. Wade were overturned

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