Kavanaugh may have tipped hand on Roe vs. Wade

It’s no secret that Brett Kavanaugh is not a fan of abortion rights.

In a speech to the conservative American Enterprise Institute a year ago, the future U.S. Supreme Court nominee praised then-Justice William Rehnquist’s dissent from Roe vs. Wade, the court’s 1973 ruling that declared a constitutional right to abortion. Later last year, Kavanaugh, a federal appeals court judge, wrote a dissent that said an undocumented minor in federal custody had no right to an “immediate abortion on demand.” But Kavanaugh may have gone further in his Senate Judiciary Committee confirmation hearings this month. Using legal terminology, he appeared to tell senators that he believed the 1973 ruling was contrary to judicial precedent and should be reversed — delivering, for the judicially savvy, a “silver bullet” of his views on Roe, as one commentator put it.

The discussion, first reported by columnist Ian Millheiser on the liberal Think Progress website, centered on the Supreme Court’s 1997 Glucksberg ruling that upheld Washington state’s ban on physician assistance in dying. Rehnquist, writing for a 5-4 majority, noted that no such right was mentioned in the Constitution, and said such unmentioned, or “unenumerated,” rights should be recognized by the courts only if they are “deeply rooted in this nation’s history and tradition.”

Although the right to abortion is also unmentioned in the text of the Constitution, the 7-2 majority in Roe vs. Wade said the right to terminate one’s pregnancy was protected as part of the constitutional right to privacy — another “unenumerated” right recognized by the court in 1965.

Now-retired Justice Anthony Kennedy cast the deciding vote to uphold the core of Roe vs. Wade in 1992. The balance could be tipped in the other direction by a replacement chosen by President Trump, who has promised that his Supreme Court appointees would overturn the abortionrights ruling.

Kavanaugh refused, during his confirmation hearings, to say whether he believed Roe vs. Wade was correctly decided. But he said he considered Rehnquist’s ruling in the Glucksberg case to be the court’s continuing guidepost for determining rights protected by the Constitution. And Kavanaugh had previously said Roe vs. Wade wouldn’t pass the Glucksberg test.

“That’s the silver bullet” that shows Kavanaugh thinks the abortion ruling should fall, said Kent Greenfield, a Boston College law professor.

The court has recognized other rights unmentioned in the Constitution, such as the right to raise one’s children and to refuse involuntary sterilization. But the Glucksberg test became a mantra for judicial conservatives to put a lid on newly declared constitutional rights.

That view eventually collided with the court’s increasing acceptance of gay rights as constitutionally protected. In the 2015 ruling that legalized same-sex marriage, Kennedy said the Glucksberg formula “may have been appropriate” for physician-aided death, but was “inconsistent with the approach this court has used in discussing other fundamental rights including marriage and intimacy.”

In his dissent, Chief Justice John Roberts said Kennedy’s opinion had effectively put an end to the Glucksberg test. Yet Kavanaugh, asked during his confirmation hearing which rights are protected by the Constitution, said Glucksberg was still the law.

“I think all roads lead to the Glucksberg test as the test that the Supreme Court has settled on,” he told Sen. Ted Cruz, R-Texas.

And it’s clear, to Kavanaugh, that the court-declared right to abortion fails that test.

“Even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe vs. Wade,” he told the American Enterprise Institute in September 2017.

While Kavanaugh fended off direct questions about Roe vs. Wade during the hearings, liberal legal analysts like Greenfield and Millheiser said the nominee had made his views clear, to those who could decode his words.

“Citing Glucksberg is a way to signal that you’re on that (conservative) team,” but “only to people who know enough law to know that signal,” Greenfield said. Under the Glucksberg approach, he said, “rights are defined by looking backward.”

That wouldn’t necessarily mean that Kavanaugh and fellow Supreme Court conservatives would take an ax to the abortion ruling once they mustered five votes. Roberts, for one, has indicated a preference for proceeding with caution in dismantling long-standing precedents, and even some abortion opponents have expressed a willingness to chip away at the ruling rather than immediately overturning it.

Michael McConnell, a Stanford law professor and former federal appeals court judge who supports Kavanaugh’s nomination, said he doesn’t think the nominee plans to vote to reverse Roe vs. Wade.

“This is only a guess,” McConnell said by email, but “there is very little appetite in conservative legal circles to reopen old wounds.”