Supreme Court nominee Brett Kavanaugh defined several times his position on the precedent set by Roe v. Wade on abortion in Senate Judiciary Committee hearing Wednesday.
Several members of the Senate Judiciary Committee questioned Kavanaugh on his position with regard to the historic abortion case and on its precedent, as it would affect his rulings should he be confirmed as a Supreme Court Justice. This was the second day of hearings on the confirmation of Kavanaugh.
Democrat Sen. from California Dianne Feinstein asked nominee Kavanaugh, “Do you agree with Justice O’Connor that a woman’s right to control her reproductive life impacts her ability to, quote, participate equally in the economic and social life of the nation, end quote?”
“As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” replied Kavanaugh. He said “Roe v. Wade held of course, and reaffirmed in Planned Parenthood versus Casey, that a woman has altitudinal right to obtain an abortion before viability.” This, he explained, is subject to a point, “to reasonable regulation by the state.”
Feinstein pressed Kavanaugh, asking whether Roe v. Wade is settled law, correct law, and settled precedent or whether it should be overturned. Kavanaugh reaffirmed, “It’s settled as a precedent of the Supreme Court entitled the respect under principles of stare decisis…most importantly, reaffirmed in Planned Parenthood versus Casey in 1992.”
Republican Sen. Lindsey Graham (SC) afforded 30 seconds to Kavanaugh to define his position on the “general holding of Roe v. Wade.”
As elaborated upon in Planned Parenthood versus Casey, a woman has a constitutional right, as determined by the Supreme Court and the constitution, to obtain an abortion up to the point of viability subject to reasonable legislative regulations by the state as long as they don’t violate her legal right.
Graham offered a general example on the issue of abortion for Kavanaugh to respond to: “Some state somewhere or some town somewhere passes a law that runs into the face of Roe. Somebody will object. They’ll go to lower courts and eventually it might come up to the Supreme Court challenging the foundation’s Roe v. Wade. It would take some legislative action for that to happen, is that correct?
“That’s correct,” Kavanaugh confirmed.
“If there was such an action by a state or local government challenging Roe [v. Wade] and it came before the Supreme Court, would you listen to both sides?” Graham asked. “I listen to both sides in every case, senator. I have for 12 years, yes,” replied Kavanaugh.
Graham further asked, “When it comes to overruling a longstanding precedent of the court, is there a formula you use? An analysis?”
“You start with the notion of precedent,” said Kavanaugh. “There are factors you look at whenever you’re considering any precedent.”
Democrat Sen. Dick Durbin hit on Kavanaugh’s dissenting opinion in Garza versus Hargan, saying, “[Kavanaugh] wrote that the court had created a new right for unlawful United States minors in detention to obtain immediate abortion on demand.” Durbin resolved this barred “any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.” Durbin described the specific case before asking Kavanaugh, “Do you believe that this was an abortion on demand?”
“Senator, the Garza case involved first and foremost, a minor. it’s important to emphasize, it was a minor,” Kavanaugh began. He specified the case involved a minor, from another country, who did not speak English, in a U.S. immigration facility, by herself.
“If she had been an adult, she would have a right to obtain the abortion immediately. As a minor, the government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor,” said Kavanaugh. He defined such a sponsor as “a family member or friend who she would not be forced to talk to, but she could consult with if she wanted about the decision facing her.”
The nominee pointed to precedent in the case, stating there was no precedent from the Supreme Court on “exact points.” He said the closest body of long point was, “the parental consent decisions of the Supreme Court, where they’ve repeatedly upheld parental consent laws over the objection of dissenters, who thought that’s going to delay the procedure too long, up to several weeks.”
He refuted Durbin’s assertion that he had “bypassed the judicial bypass, which she received from the state of Texas when it came to parental consent.”
“The government is arguing that placing her with an immigration sponsor would allow her, if she wished, to consult with someone about the decision,” argued Kavanaugh.
Durbin urged Kavanaugh relating to the case, “The clock is ticking…20-week clock is ticking.” He argued that it would have taken time for her to speak with a potential sponsor.
“I’m not making the policy decision. My job is to decide whether that policy is consistent with law,” argued Kavanaugh. He repeated that he looks at precedent, and precedent was parental consent in that case.
“I’m deciding whether the policy is then consistent with Supreme Court precedent,” Kavanaugh said as Durbin pressed on the issue. “Justices Marshall, Brennan, and Blackman repeatedly dissented in cases because they thought the delay was too long,” said Kavanaugh. “I quoted all of that in my Garza opinion, and I made clear, it had to happen very quickly…I specifically say that the government cannot use this as a ruse to somehow prevent the abortion. I spent a paragraph talking about, she was in an undeniably difficult situation.”
“A precedent’s not like a cafeteria, where I can take this, but not that. I had to take [K.C.] in completely,” said Kavanaugh. “I did my level best in an emergency posture. So I had basically two days.” He resolved, “I did the best to follow precedent and, as I always try to do, be as careful as I can in following the precedent of the Supreme Court.”