Tuesday, September 4, 2018
Kavanaugh comments on abortion to be parsed in confirmation hearings
ABC News (Sept. 3, 2018): Kavanaugh comments on abortion to be parsed in confirmation hearings, by Stephanie Ebbs:
Brett Kavanaugh testifies at his Supreme Court confirmation hearings Tuesday, and nothing will be parsed more closely than his first public comments on abortion.
Senate Democrats are expected to grill Kavanaugh on the Supreme Court's abortion jurisprudence and access to contraception.
Abortion rights groups will be listening to how Kavanaugh responds when asked if he agrees with President Trump's comments that Roe v. Wade should be overturned and what Kavanaugh meant when he described Roe as "settled law."
During his 2006 confirmation hearing for the federal bench, Kavanaugh committed to following Roe v. Wade but would not comment on his personal opinion of abortion. "The Supreme Court has held repeatedly, senator, and I don't think it would be appropriate for me to give a personal view of that case," Kavanaugh told Sen. Chuck Schumer at the time.
Over the weekend, Sen. Lindsey Graham, the South Carolina Republican who sits on the Senate Judiciary Committee, said he hopes Kavanaugh is open to both sides of any case challenging Roe, including that the decision should be overturned. In an interview, Graham said he would consider Kavanaugh "disqualified" if he promised only to uphold or overturn Roe v. Wade.
Republican Senator Susan Collins of Maine, has said she won't vote for a justice "hostile" to Roe v. Wade. But after meeting with Kavanaugh earlier this month, she said he had called Roe "settled law."
Even if Kavanaugh is not in favor of overruling Roe v. Wade, there is evidence that he would interpret the right to abortion narrowly. Last year, Kavanaugh dissented in a court decision that allowed an undocumented minor in U.S. custody to get an abortion. He argued that the government could force the minor to wait until she was transferred from a government-run immigration center to a sponsor before having the abortion. Kavanuagh argued that the delay did not constitute an "undue burden" because other laws regarding abortion can cause similar delays.
Abortion rights advocacy groups want Kavanaugh, or any other Supreme Court nominee, to affirmatively support the "personal liberty standard" and say as well that the Constitution protects an American's right to decide to use contraception, have an abortion, or marry same-sex partners. But, Kavanaugh is unlikely to make such a statement and has publicly expressed misgivings about such liberty rights.
In his dissent to the Roe v. Wade, Justice William Rehnquist wrote that the framers of the Constitution did not intend for the 14th Amendment to overrule states' ability to write their own laws about abortion because there were state laws regulating it at the time. In a speech at the American Enterprise Institute last year Kavanaugh said that while Rehnquist couldn't convince the other justices he succeeded in "stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition."