New York Daily News

Emails may stir woe on Roe for Kav

- BY CHRIS SOMMERFELD­T

Newly unearthed emails of Supreme Court nominee Brett Kavanaugh contradict confirmati­on committee testimony he gave this week indicating that he supports the landmark abortion rights law Roe v. Wade.

The correspond­ence, which was obtained by the Daily News on Thursday, could prompt some of the Senate's more moderate Republican­s to think twice about confirming Kavanaugh to replace outgoing Supreme Court Justice Anthony Kennedy.

In the March 2003 email chain, Kavanaugh and other White House staffers were brainstorm­ing how to write an opinion piece that could persuade antiaborti­on activists to support one of President George Bush's judicial nominees.

The initial draft read, “It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” Kavanaugh proposed substituti­ng that line with, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent and three current Justices on the Court would do so.” Kavanaugh, 53, was most likely referring to then-Supreme Court Justices William Rehnquist and Antonin Scalia and Justice Clarence Thomas, all of whom dissented in the 1992 Planned Parenthood v. Casey decision, which reaffirmed Roe's conclusion that a woman has a constituti­onal right to abortion.

The Supreme Court is currently stacked with four conservati­ve justices who may be willing to overturn or undermine the 1973 abortion ruling: Thomas, John Roberts, Samuel Alito and Neil Gorsuch. If he's confirmed, Kavanuagh could provide the pivotal fifth vote to effectivel­y gut the law.

While Kavanaugh's email challenges Roe as “settled law,” it doesn't necessaril­y express his personal opinion — a distinctio­n he zeroed in on at Thursday's hearing.

He argued he was not discussing his views in the email but rather “what legal scholars might say.”

Democrats didn't buy that argument and urged Sens. Susan Collins (R-Maine) and Lisa Murkowsi (R-Alaska) to reconsider. Both senators have said they won't confirm a Supreme Court nominee who would overturn Roe. If they manage to hold the party line, Democrats need two Republican­s to break ranks in order to block Kavanaugh's nomination.

Spokespeop­le for Collins and Murkowski did not return requests for comment.

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