When Brett Kavanaugh is confirmed to the Supreme Court, dozens of states could pass laws placing new restrictions on abortion with the intent of overturning Roe v. Wade. NPR reported that 22 states would likely ban abortion if it was overturned.
In Roe (1973), the Court held 7-2 that privacy, an unenumerated right discovered in the Constitution, included the right for a woman to terminate her pregnancy. The result was the striking down of the Texas law, which banned abortion except when the mother’s life was at serious risk or in cases of rape or incest.
Norma McCorvey (known by the pseudonym “Jane Roe”) brought suit against the Texas law to secure the right to an abortion. The U.S. District Court in Texas agreed with her but didn’t issue an injunction, leaving the law intact. Roe appealed to the Supreme Court with hopes to change the law. Curiously, McCorvey eventually became a pro-life activist and lobbied the Court to reconsider her own case.
The Court’s opinion by Justice Blackmun rested on the precedent set by Griswold v. Connecticut, where it created an implied right to privacy with language found in the 1st, 3rd, 4th, 5th and 9th Amendments. The privacy right that’s allowed distribution and use of birth control devices, established in Griswold, was expanded to a right to privately decide whether to have an abortion. According to Justice Stewart in his concurring opinion, the 14th Amendment, which prevents the suppression of liberty without due process and compels states to honor the bill of rights, is the operative Amendment in striking down the law.
Judge Kavanaugh’s imminent confirmation to the Supreme Court will have a serious impact on its ideological split.
A conservative Judge, Kavanaugh has implied disagreement with the Court’s ruling in Roe and could vote to overturn it with a newfound conservative majority. Until Justice Kennedy (who upheld Roe in Planned Parenthood v. Casey) recently retired, there hasn’t been a majority that would reverse Roe. Kavanaugh said in a 2003 email that it’s inaccurate that all legal scholars consider the landmark case “settled law.” In a 2017 speech, he praised Justice Rehnquist’s dissent in Roe. Following the footsteps of previous Judges under consideration, the nominee didn’t answer questions about how he would vote in a future abortion case.
Kavanaugh did describe Roe in his confirmation hearings as an “important precedent of the Supreme Court [which has] been reaffirmed many times.”
Here are 3 irreconcilable points. Courts prefer to uphold precedent, adhering to the judicial doctrine of stare decisis. Kavanaugh referred to Roe v. Wade as settled law in his meeting with moderate Republican Senator Susan Collins of Maine. President Trump vowed to appoint a Justice that would vote to overturn Roe.
The Redlands Bulldog spoke to University of Redlands David Boies Professor of Government, Art Svenson, who thinks that there’s a good chance that the Court will take an abortion case.
“Kavanaugh said it’s settled law. What he didn’t say is Roe was settled rightly,” Svenson said.
The Supreme Court takes cases with the agreement of at least 4 Justices. Even without the new relative swing vote, Chief Justice John Roberts, the confirmation will establish 4 deeply conservative votes: Thomas, Alito, Gorsuch, and Kavanaugh.
To conservatives, the words “pro-life” represent something greater than returning abortion regulation to the states. According to Svenson, the Court could go beyond ruling that Roe was wrongly decided. It could, in one case, dismantle Roe and find a constitutional right to life for the unborn, banning abortion nationwide.
This doesn’t all hinge on Kavanaugh’s confirmation specifically. Even if Kavanaugh isn’t confirmed, President Trump could simply nominate a different Judge to overturn Roe.
Still, having a conservative majority doesn’t mean the Court will seek to reverse the case. It’s a judicial, not a legislative body, and it could simply decline to review abortion cases, of which it would have appellate jurisdiction. The outrage would border Vietnam-war levels if a case that rests in the 60-65% range of approval was suddenly overturned. Republicans likely know that they’d consequently suffer in the next election.
In fact, the potential reversal of Roe v. Wade means little for Californians and university students.
Overturning Roe would most likely return control of abortion rights to the state level. California would certainly maintain legislation ensuring the right to choose. For now, termination is protected for anyone in a blue state, but abortion-seeking women in pro-life states could soon be in trouble.
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