Kavanaugh, who told Senate Roe v. Wade was ‘settled as precedent,' signals openness to overturning abortion decision
By Amy B Wang Yesterday at 3:48 p.m. EST|Updated yesterday at 6:59 p.m. EST (Wednesday 01 December 2021)
Supreme Court Justice Brett M. Kavanaugh on Wednesday repeatedly indicated he would be open to overturning “settled law,” including Roe v. Wade, citing a long list of past Supreme Court cases that had been ruled against precedent.
Those cases, Kavanaugh said, included Brown v. Board of Education, which outlawed the “separate but equal” doctrine; Baker v. Carr, which set the stage for one person, one vote; West Coast Hotel v. Parrish, which recognized the state’s authority to regulate business; and Miranda v. Arizona, which required police to give Miranda warnings about the right to remain silent and have an attorney present to suspects in criminal custody.
“If we think that the prior precedents are seriously wrong … why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is to return to the position of neutrality?” Kavanaugh at one point asked Center for Reproductive Rights attorney Julie Rikelman, who is representing the abortion provider suing Mississippi’s new law that bans most abortions after 15 weeks of pregnancy.
It was one of several times Kavanaugh would return to his argument Wednesday that the Constitution was “silent and therefore neutral” on the issue of abortion as the Supreme Court heard arguments over the Mississippi law and the fate of the 1973 decision. In another line of questioning that was somewhat friendly to Mississippi Solicitor General Scott G. Stewart, Kavanaugh seemed to be looking ahead to hypothetical situations if Roe v. Wade were overturned and if the question of abortion rights were returned to states to decide.
“As I understand it, you’re arguing that … the Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate?” Kavanaugh asked Stewart.
He also asked Stewart to confirm that, if Mississippi were to prevail, the “majority of states” could, or presumably would, continue to freely allow abortion. Stewart said he agreed.
Kavanaugh’s statements on Wednesday differed — if not in substance than certainly in tone — from the impression he left for some in 2018, during his Senate confirmation process. The question of how he would rule in a challenge to Roe v. Wade came up multiple times during his confirmation hearings, and at the time, Kavanaugh emphasized that Roe v. Wade was “settled as precedent.”
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https://www.washingtonpost.com/politics/2021/12/01/kavanaugh-who-told-senate-roe-v-wade-was-settled-precedent-signals-openness-overturning-abortion-decision/