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How to translate Supreme Court nominee Brett Kavanaugh’s talk about abortion

A leaked email and some pointed questions reveal new insight into how Brett Kavanaugh really feels.

by Carter Sherman
Sep 6 2018, 6:18pm

An email written by Brett Kavanaugh suggests that the Supreme Court nominee doesn’t believe that Roe v. Wade, the Supreme Court decision that legalized abortion across the United States, should be considered the “settled law of the land,” the New York Times reported Thursday.

“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, and three current Justices on the Court would do so,” Kavanaugh wrote in the March 2003 email, which was written during Kavanaugh’s time serving in the George W. Bush White House and leaked to the New York Times by an “unknown person.”

Read more: Will Trump's Supreme Court pick Brett Kavanaugh overturn Roe v Wade?

Because Kavanaugh is set to replace Anthony Kennedy, the famous Supreme Court “swing” justice, his appointment would give the court a conservative majority for decades to come. And abortion rights advocates worry that Kavanaugh will use that power to gut or even overturn Roe outright. The leaked email provides the most revealing glimpse into Kavanaugh’s view of Roe v. Wade and abortion access, which senators have been attempting to uncover in Kavanaugh’s confirmation hearings.

Here’s what he’s said so far — and what it means:

Kavanaugh dismissed his email questioning Roe as “settled law” as something “some legal scholars have undoubtedly said.” Connecticut Democratic Sen. Richard Blumenthal appeared to ask Kavanaugh about the leaked email on Wednesday, the day before it was made public.

“Is it a fact, Judge, also, that while you were in the Bush White House, you took the position that not all legal scholars actually believe that Roe v. Wade is the settled law of the land and that the Supreme Court could always overturn it as precedent?” Blumenthal said. “And in fact there were a number of justices would do so?”

“I think that’s what legal scholars have — some legal scholars have undoubtedly said things like that over time,” Kavanaugh replied, evidently refusing to acknowledge his own writing. “But that’s different from what I as a judge, my position as a judge, is that — there’s 45 years of precedent, and there’s Planned Parenthood v. Casey, which reaffirmed Roe, so that’s precedent on precedent.”

While Kavanaugh stressed that he respected Roe — and its descendant, Planned Parenthood v. Casey, which helped establish states’ ability to limit abortion access — in his “position as a judge” on U.S. Court of Appeals for the District of Columbia Circuit, Supreme Court justices don’t have to follow such precedent. In fact, as California Democratic Sen. Kamala Harris later got Kavanaugh to admit, and as Kavanaugh pointed out in his own leaked email, a majority of Supreme Court justices are free to overturn past decisions at any time, no matter how many years have passed. (For example, they overturned Korematsu v. United States, the infamous 1944 decision that upheld the government’s right to intern Japanese-Americans during World War II, just this year.) Even calling Roe v. Wade “settled law,” as Kavanaugh did during California Democratic Sen. Dianne Feinstein’s questioning, doesn’t guarantee that Kavanaugh won’t join a majority of Supreme Court justices in unsettling abortion law.

Read more: Watch Supreme Court nominees dodge the abortion question since 1980

Still, Kavanaugh also dodged questions about abortion by refusing to talk about hypothetical cases, or any cases that may come before him while a Supreme Court justice, as Kavanaugh says his answers may compromise the independence of the judiciary. It’s an old tactic — for decades, Supreme Court nominees have used those talking points in order to avoid revealing their opinions about Roe.

Kavanaugh denied using an anti-abortion “code word” in his ruling in the Garza v. Hargan case, which involved an undocumented teenager in federal custody who wanted an abortion in October 2017. The teen had already received permission from a Texas judge to end her pregnancy, which is a requirement for all Texas minors who want an abortion without their parents’ permission. Kavanaugh and two other D.C. Circuit judges, however, ruled to stop a district-court order allowing the teenager to get the procedure.

The D.C. Circuit court’s full panel of judges overturned that ruling days later, and in his dissent, Kavanaugh said he believed the Trump administration should have more time to find a sponsor to take custody of the teenager. The majority decision, Kavanaugh wrote, “is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”

By forcing the teenager to wait for a sponsor, Illinois Democratic Sen. Dick Durbin argued Wednesday, Kavanaugh ignored the fact that she’d already followed Texas law, and pushed her closer to being unable to get an abortion at all. (In Texas, abortions can’t be performed past 20 weeks of pregnancy.)

Kavanaugh defended his decision as in line with Supreme Court precedent.

“Is the government’s goal reasonable in some way?” Kavanaugh said. “And they say, ‘We want the minor to have the opportunity to consult about the abortion.’ Well, the Supreme Court precedent specifically says, specifically says that’s an appropriate objective.”

In his own discussion of the decision, Blumenthal zeroed in on Kavanaugh’s use of the phrase “abortion on demand,” which Blumenthal called “a code word in the anti-choice community.” Blumenthal said Kavanaugh’s words amounted to “a signal to the Federalist Society and the Heritage Foundation,” which helped prepare lists of potential Supreme Court nominees for President Donald Trump. (Trump has promised to only appoint justices who would overturn Roe v. Wade.)

“In addition, in that dissent, you refer to Roe v. Wade as ‘existing Supreme Court precedent,” Blumenthal went on. “Now, I don’t recall seeing a judge refer to ‘existing Supreme Court precedent’ in other decisions, and certainly not commonly. Unless they’re opening the possibility of overturning that precedent. It’s a little bit like somebody introducing his wife to you as, ‘my current wife.’ You might not expect that wife to be around for all that long.”

Kavanaugh maintained that he was not aware of the “code word,” and said he used the term merely as a reference to then-Chief Justice Warren Burger’s concurrence in Roe v. Wade, where he wrote the physicians can still decide whether to give a patient an abortion.

Kavanaugh was speechless when asked how the government regulates male bodies. Sen. Harris started off her questions about abortion access by asking Kavanaugh on Wednesday, “Do you believe the right to privacy protects a woman’s choice to terminate a pregnancy?”

Kavanaugh yet again declined to answer. “Following the lead of the nominees for the Supreme Court, all eight currently sitting Supreme Court, have recognized two principles that are important,” he said, before reiterating that he would not discuss cases that he could rule on as a Supreme Court justice, and would not give a “thumbs up or thumbs down” to any particular precedent.

Harris, however, pointed out that Kavanaugh’s claim was not quite right: Though Justice Ruth Bader Ginsburg has criticized Roe v. Wade’s legal reasoning in the past, a history senators was asked her about in Ginsburg’s own confirmation hearing, she did tell senators that abortion access is “central to a woman’s life, to her dignity.” (This statement is now sometimes referred to as “the Ginsburg standard.”)

Then Harris asked Kavanaugh, “Can you think of any laws that give government the power to make decisions about the male body?”

After a pause, Kavanaugh replied, “I’m happy to answer a more specific question.”

“Male versus female,” Harris said.

“There are, um, medical procedures — ”

“That the body has the power to make a decision about man’s body?” Harris asked.

“I thought you were asking about medical procedures that were unique to men,” Kavanaugh asid.

“I will repeat the question. Can you think of any law that gives the government the power to make decisions about the male body?”

“I am not thinking of any right now, Senator.”

Cover image: Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on Capitol Hill September 6, 2018 in Washington, D.C. Photo by Alex Wong/Getty Images.