With President Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court, women’s constitutional rights — including access to abortion — are on the line. Kavanaugh has used his judicial powers to restrict access to safe, legal abortion before; last year he ruled that the federal government could block a young undocumented woman in U.S. custody from obtaining the safe, legal abortion she wanted.
The Senate’s hearings on Kavanaugh’s nomination are moving forward, and the stakes are too high to allow vague answers about “settled precedent” and stare decisis. We need to know we have a Supreme Court nominee who respects our personal liberties and rights to make decisions about our own bodies, lives, and relationships.
To get those answers, our senators must at a minimum ask Kavanaugh these three important questions:
1. Does the U.S. Constitution protect individual liberty and the right of all people to make personal decisions about their bodies?
Seventy-two percent of Americans support Roe v. Wade — including a majority of Democrats, Independents, and Republicans. But Trump has been clear that he’ll only appoint judges who would specifically try to undermine Roe v. Wade, which judges at all levels have treated for decades as settled law.
This is why no one should be fooled by, or take comfort from, references to “settled precedent” when talking about Roe v. Wade. Many justices have made such remarks in confirmation hearings and conversations with senators. Then — once seated for life on a federal court — they have voted to slash women’s constitutional rights, including access to abortion. In fact, in an August 2018 ruling, judges on one federal circuit court of appeals openly questioned the Supreme Court’s jurisprudence on abortion.
During his confirmation hearings in 2005, Justice Samuel Alito said he “would respect legal precedent on abortion rights and put his personal views aside.” Chief Justice John Roberts told senators, in 2005, that he believed judges must “be bound down by rules and precedents.” But both voted against protecting women’s access to abortion in the 2016 case Whole Woman’s Health v. Hellerstedt — and both upheld a federal ban on so-called “partial-birth abortion,” adopting a stance that Justice Ruth Bader Ginsburg described as an “alarming” departure from precedent.
With Roe v. Wade and abortion access on the line, too much is at risk to allow Kavanaugh to dodge key questions about his approach to the law. We need to hear him say, loud and clear, that the U.S. Constitution protects individual liberty and the rights of all people to make personal decisions about their bodies and relationships — including access to abortion.
Brett Kavanaugh can't hide behind the hollow words of “respecting precedent,” “settled law,” or “stare decisis.” Here’s what Justice Ginsburg said when asked about Roe v. Wade during her confirmation hearing.
2. What, in your mind, rises to the level of an “undue burden” on a woman’s right to obtain an abortion?
In Planned Parenthood v. Casey, the Supreme Court gave the country the concept of an “undue burden” on access to abortion: a regulation which, to a fair judge, puts a substantial obstacle in the path of women who choose to exercise their constitutional right. To pass the “undue burden” test, the supposed benefits of any regulation about abortion can’t be outweighed by whatever burdens on access those regulations impose.
In Casey, the court employed the undue burden’ standard and struck down a requirement that women seeking to obtain abortions must notify their spouse. In the 2016 Whole Woman’s Health case, the court blocked Texas from requiring doctors who perform abortions to obtain admitting privileges at nearby hospitals — which would have closed about half of the abortion providers in the state for no plausible benefit to women’s health — and blocked a requirement to meet the design standards of surgical centers, which would have further reduced the number of clinics in the state to only seven or eight.
3. Does the president and other executive branch officers have the duty to faithfully carry out the Affordable Care Act and other laws duly enacted by Congress?
Since the era of John Marshall, one of the early chief justices of the United States, the court has said that the judicial branch of the federal government has the duty “to say what the law is.” In a 2011 judicial opinion, Kavanaugh appears to veer from that principle — making it seem as if he views the law not as a binding obligation upon presidents, but as an à la carte menu from which a president can pick and choose.
In the 2011 case, the federal Court of Appeals for the District of Columbia Circuit upheld the Affordable Care Act (ACA) in the face of one of the first major challenges to the law. The court panel voted two to one to uphold Obamacare, with Kavanaugh writing the dissent. In his dissent, Kavanaugh wrote that:
“Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
In other words, Kavanaugh believes that a president — such as, say, the 45th president of the United States, who’s made repeated attacks on Planned Parenthood patients’ access to health care — can ignore his constitutional obligation to “take Care that the Laws be faithfully executed,” even when federal courts have resolved the law’s constitutionality.
The nonstop, multi-pronged effort by Trump to sabotage the Affordable Care Act — which has raised health costs for many American families, while leaving others without coverage — makes it clear why Kavanaugh’s belief is chilling for anyone who relies on the ACA to obtain affordable and comprehensive health coverage. Already this year, Trump’s administration has chosen to stand idly by rather than defend the ACA against a new ideologically driven challenge. If Kavanaugh joins the Supreme Court, would he let Trump continue to subvert the law or even allow him to flout it?
Senators and the 20 million Americans who’ve gained health coverage thanks to the ACA need clarity about this. If Kavanaugh believes Trump, or another president, can put themselves above the law by choosing to ignore a law they dislike, rather than persuading Congress to change or repeal a law — then his views make him unfit for the court.
President Trump has said in plain terms that he wants justices who would "automatically" overturn Roe v. Wade, and promised that no one who didn’t meet this standard would make his cut. Kavanaugh himself has also made his views clear — praising, in a 2017 speech, the late Chief Justice Rehnquist’s dissent in Roe.
For those reasons and more, the questions Kavanaugh answers during his confirmation hearings matter. The hearings offer the only chance for people to hear from Kavanaugh, in his own words, about the views that would guide him if he joins the court.
With women’s constitutional rights, including access to abortion, on the line — and the rule of law itself perhaps in the balance — efforts to avoid giving answers to these important questions cannot, and must not, be allowed by the Senate.