Brett Kavanaugh's Record On Abortion

Aug 31, 2018
Originally published on August 31, 2018 2:10 pm
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President Trump's supporters say, so far, his biggest achievement has been nominating Neil Gorsuch to the U.S. Supreme Court. The president's second conservative nominee goes to Capitol Hill next week for his confirmation hearings. Brett Kavanaugh will get tough questions about abortion and reproductive rights, which come up regularly at confirmation hearings for Supreme Court justices. Even more is at stake this time, since Kavanaugh is replacing the court's swing vote, Justice Anthony Kennedy. NPR's Sarah McCammon has more.

SARAH MCCAMMON, BYLINE: Abortion rights supporters have been gearing up for a fight that will come to a head in Judge Brett Kavanaugh's confirmation hearings. New York Senator Kirsten Gillibrand recently put it this way.

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KIRSTEN GILLIBRAND: It is now or never. Honestly, it is now or never.

MCCAMMON: Trump's second nominee to the Supreme Court is well-known for his conservative record. While he recently told Maine Senator Susan Collins that he views Roe v. Wade as settled law, many reproductive rights advocates and legal scholars believe Kavanaugh would likely vote to restrict abortion. At a rally in Washington, D.C., Gillibrand urged activists to call their senators in an effort to block Kavanaugh.

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GILLIBRAND: This is the moment where you have to look at yourself in the mirror and say, what will I do to make sure this man is not the next justice on the Supreme Court?

MCCAMMON: Despite the high stakes, Kavanaugh's Supreme Court confirmation hearings may not reveal much about his thinking on the issue, says David Cohen, a law professor at Drexel University.

DAVID COHEN: I'm expecting a pretty boring set of hearings because the custom has become that the nominees say very little.

MCCAMMON: Indeed, there's a pretty well-established playbook for how past Republican-appointed nominees have answered questions about Roe v. Wade and other abortion rights cases.

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JOHN ROBERTS: I feel the need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis.

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SAMUEL ALITO: The first issue is the issue of stare decisis and the presumption is that the court will follow its prior precedents.

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NEIL GORSUCH: Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court.

MCCAMMON: That was Chief Justice John Roberts and Justices Sam Alito and Neil Gorsuch, all Republican nominees, affirming that Roe and related cases are legal precedent. But here's Cohen again from Drexel University.

COHEN: To say that is to say nothing. Basically, it just says it's a decision of the Supreme Court, and it's entitled to the weight that decisions of the Supreme Court are entitled to. Well, they can be overruled.

MCCAMMON: Conservatives often defend these appeals to precedent based on what they've termed the Ginsburg rule. In her 1993 confirmation hearings, liberal Justice Ruth Bader Ginsburg said she would not forecast how she might rule on specific cases that could come before the Supreme Court. Elizabeth Slattery is a legal fellow at the Heritage Foundation, a conservative group that has praised Kavanaugh.

ELIZABETH SLATTERY: This is something that's pretty standard with something that comes up at Supreme Court confirmation hearings. But, you know, we shouldn't expect a nominee to forecast how they might rule in a particular case.

MCCAMMON: But that's far from the whole story when it comes to Ginsburg. She was much more forthcoming about her thinking on abortion rights during her hearings. In order to be equal, Ginsburg argued, a woman must be able to decide whether or not to bear a child.

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RUTH BADER GINSBURG: This is something central to a woman's life, to her dignity. It's a decision that she must make for herself.

MCCAMMON: But Ron Bonjean, a Republican strategist who helped guide Gorsuch's nomination, says it's not a good idea for a nominee to say too much about their personal opinions. If he were advising Kavanaugh, he says he'd tell him to keep his answers short and sweet and focused on the law.

RON BONJEAN: There are lots of political minefields when dealing with this type of question. And the simple answer is just, if you believe the law is established, stick to it. Simply say it, and move along.

MCCAMMON: If Kavanaugh's past history is any indication, that's what he'll do. At Kavanaugh's confirmation hearing to be a federal judge in 2006, Democratic Senator Chuck Schumer tried to probe him about his views on Roe v. Wade.

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BRETT KAVANAUGH: And I'm saying if I were confirmed to the D.C. Circuit, Senator, I would follow it. It's been reaffirmed many times, including in Planned Parenthood versus...

CHUCK SCHUMER: I understand, but what is your opinion? You're not on the bench yet. You've talked about these issues in the past to other people, I'm sure.

KAVANAUGH: The Supreme Court has held repeatedly, Senator, and I don't think it would be...

SCHUMER: OK.

KAVANAUGH: ...Appropriate for me to give a personal view on that case.

SCHUMER: Not going to answer the question.

MCCAMMON: David Super, a professor at Georgetown Law, says that question, what Kavanaugh has said privately about his opinions on abortion rights, also could be important, given that President Trump's potential Supreme Court nominees were vetted by conservative groups like the Federalist Society.

DAVID SUPER: I think there's a very good chance he has had these sorts of conversations. And what he's prepared to say about that when he's pressed on it is an open question.

MCCAMMON: An open question that might not get many answers in next week's hearings. Sarah McCammon, NPR News, Washington.

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