The nomination of Judge Brett Kavanaugh to the Supreme Court should be alarming to anyone who cares about civil liberties in this country. If Kavanaugh is confirmed, the ideological balance of the court will be out of step with that of the electorate, and civil liberties will be threatened like never before. Abortion rights are one of many things that could be undermined or overturned if Kavanaugh is confirmed, but the Affordable Care Act, LGBTQ rights, and other liberty interests will also be at stake.
Roe v. Wade was the 1973 landmark U.S. Supreme Court decision, holding that the U.S. Constitution protects a fundamental right to privacy – this has been the law of the land ever since. In 1992, a majority conservative U.S. Supreme Court ruled in Planned Parenthood v. Casey that Roe v. Wade should not be overturned, and its central holding (the fundamental right to privacy) should be reaffirmed. Writing for the majority, Justice Sandra Day O’Connor (a Ronald Reagan appointee) stated that “the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.” She found that overturning the precedent of Roe was too dangerous as women had built their lives around the understanding that, if needed, access to safe and legal abortions would be available. O’Connor’s decision reflected the understanding that Roe, and its holding, had become part of the fabric of American life.
What O’Connor understood nearly twenty years ago, Kavanaugh fails to recognize currently. His clear belief in overturning Roe, as evidenced by his own record as a federal judge and in speeches he has given, demonstrates his blindness to the importance of precedent. If he is capable of overlooking precedent to serve his own belief in the case of abortion rights, he is capable of doing it with other cases involving minority rights and liberty interests. The precedent of Roe has established the right to privacy and influenced other landmark cases including Obergefell v. Hodges which held that the fundamental right to marry is guaranteed to same-sex couples. If Roe falls, many cases built off of its precedent and the recognition of a constitutional right to privacy, as well as the constitutional rights it enshrines, will come into question. Thus, Kavanagh’s opinion on Roe could define constitutional doctrine across the country for years to come. This is not just a fight over abortion. This is a fight for constitutional principles.