Trump U.S. Supreme Court nominee Brett Kavanaugh, who has served on the D.C. Circuit Court of Appeals for the past 12 years, once stated during his confirmation hearing that he would “follow Roe v. Wade faithfully and fully” as it is “binding precedent.”
He had been asked by Sen. Chuck Schumer during the 2006 hearing if he believes Roe v. Wade is “an abomination.”
“On the question of Roe v. Wade, if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be the binding precedent of the court,” Kavanaugh replied. “It’s been decided by the Supreme Court.”
Schumer then twice sought to obtain Kavanaugh’s personal view of the Supreme Court ruling, to which Kavanaugh replied that he did not feel it would be appropriate to state his own position.
“I’m saying that if I’m confirmed to the D.C. circuit, senator, I would follow it. It’s been reaffirmed many times, including in Planned Parenthood v. Casey,” he said.
Kavanaugh did so last October in the case of Garza v. Hargan, which came before the D.C. Circuit. While he strongly disagreed with his colleagues who allowed an illegal immigrant teenager to obtain an immediate abortion, he dissented on the grounds that the girl should have been placed—as the government had requested—with a guardian (known as a sponsor) before making a final decision about obtaining an abortion.
He referred to abortion as being a “right” under Roe v. Wade in noting that regulating that “right” is permissible according to the nation’s highest court. He pointed to “the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.”
“The majority’s approach is radically inconsistent with 40 years of Supreme Court precedent. The Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible government purposes. These include parental consent laws, parental notice laws, informed consent laws, and waiting periods, among other regulations,” Kavanaugh wrote.
“(This girl) is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor—ordinarily a family member, relative, or friend—before she makes that decision?” he asked. “And keep in mind that the government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion.”
Kavanaugh noted that the Supreme Court has acknowledged and affirmed the government’s interest in “fetal life” and the desire of those in power not to facilitate an abortion, “so long as the government does not impose an undue burden on the abortion decision.” He additionally remarked that while there are varying views surrounding the Supreme Court’s decisions on the issue of abortion, “[a]s a lower court, our job is to follow the law as it is, not as we might wish it to be.”
Read the dissent in full here, starting on page 35.
The American Family Association, expressing concern about language in the 2015 case of Priests for Life v. U.S. Department of Health and Human Services, is asking its supporters to contact their senators and urge them to oppose Kavanaugh. The organization says that while the conclusion reached by Kavanaugh in his dissenting remarks was satisfactory, they were unsettled by his notation that a majority of justices of the U.S. Supreme Court find the coverage of contraceptives by employers a “compelling interest.”
“The plaintiff religious organizations strenuously argue that there is no such compelling governmental interest. As I see it, however, plaintiffs’ argument cannot be squared with the views expressed by a majority of the justices in Hobby Lobby,” he wrote.
However, other organizations have expressed support for Kavanaugh, including the religious liberties organization First Liberty, whose president, Kelly Shackelford, told the National Review, “Brett Kavanaugh also volunteered his time almost 20 years ago to work on a religious liberty case at the U.S. Supreme Court with me and Jay Sekulow. He has been committed to the Constitution and religious liberty for a long time.”
Some additionally remarked that perhaps Kavanaugh would still overturn Roe, arguing that there is a difference between being a circuit court judge and a Supreme Court justice.
“Saying in 2006 that, as circuit court judge, he would defer to SCOTUS precedent implies little about how he’d act as SCOTUS justice—especially in [a] 2018 environment,” one opined.
“My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent,” Kavanaugh stated on Monday night after being introduced by the president.
As previously reported, out of the seven justices that ruled in favor of Roe in 1973, a case that dealt with an admitted false claim of rape, five were appointed by Republican presidents.
“The Constitution does not define ‘person’ in so many words,” wrote Justice Harry Blackmun, nominated by Richard Nixon. “[I]n nearly all these instances (where it is cited), the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”
“All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,” he continued. “In short, the unborn have never been recognized in the law as persons in the whole sense.”
Kavanaugh, who is a graduate of Yale, has also taught at Harvard, being hired more than a decade ago by now-Supreme Court Justice Elena Kagan, who is among the liberal justices on the bench.
“For the past 11 years, I’ve taught hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan,” he stated.
Kavanaugh also worked as a law clerk for the justice he has been nominated to replace: Justice Anthony Kennedy.