Kavanaugh tips scales against Roe v. Wade
WASHINGTON — The U.S. Supreme Court now has five justices who have either directly stated or signaled that Roe v. Wade was wrongly decided, bringing an end to an era where legal challenges sought to chip away at the ruling and opening the door to a head-on challenge that could overturn it.
Sen. Susan Collins, in explaining her crucial vote in favor of newly installed Justice Brett Kavanaugh’s confirmation, said Kavanaugh assured her of his belief in “honoring precedent.”
But Kavanaugh, who was one of a long list of conservative potential Trump high court picks culled by conservative legal groups, has contradicted that view in his own words — including in an email from his tenure in the Bush White House where he noted that the Supreme Court “can always overrule its precedent.”
During his confirmation hearing, he declined to directly answer questions about how he would approach abortion cases, reasoning that he could not respond to issues that may come before the court.
Kavanaugh joins other conservative justices that have already shown a willingness to abandon precedent, including in a case involving public sector labor unions this past summer.
Overturning Roe would mark a departure from decades of jurisprudence, in part because of the role served by retired Justice Anthony Kennedy, who Kavanaugh has replaced.
Kennedy voted to uphold Roe in 1992 in a decision that created an “undue burden” standard for laws restricting women’s ability to obtain abortions.
In carrying out that standard, Kennedy’s legacy was more mixed. In some cases he struck down laws as too restrictive, including a case involving a Texas law that placed restrictions on facilities were abortions could be performed, drastically limiting the number of abortion facilities in the state.
In others, he upheld abortion restrictions, including in a 2007 ruling on the federal Partial-Birth Abortion Ban Act.
That meant the court took up very few direct challenges seeking to overturn Roe. Instead, test cases sought to test the limits of the court’s precedent, focusing on its margins.
More of those peripheral challenges to laws restricting abortions in states including Arkansas and Missouri are already on a path to the court, likely giving Kavanaugh an opportunity to cast his first votes in the issue soon.
But others cases, including those out of Kentucky and Mississippi — each of which has only one abortion clinic in operation due to restrictive laws — could result in a challenge that asks the justices to reconsider Roe entirely.