By Ed Condon
Washington D.C., Jul 20, 2018 / 10:27 am
As Judge Brett Kavanaugh prepares for Senate confirmation hearings, the Supreme Court nominee's record is being examined for indications of how he might handle a move to overturn Roe v. Wade.
Kavanaugh is widely considered to be a constitutional originalist and known to be a practicing Catholic, and how he might approach a hypothetical move to overturn the landmark abortion case is expected to dominate the confirmation process.
President Trump made numerous public commitments to appoint pro-life judges and justices as part of his presidential campaign but, as previous presidents have found, it can be hard to predict how a nominee might rule once on the court. Justices Sandra Day-O'Connor and Anthony Kennedy, whose resignation opened the seat for which Kavanaugh has been nominated, were appointed by Ronald Reagan but voted to uphold abortion rights while on the court.
During Senate confirmation hearings candidates traditionally underscore their commitment to existing precedent and their judicial impartiality, and steer clear of responding to hypothetical cases. As a result, Senators often focus questions on previous decisions reached by a nominee in lower courts. Ahead of Kavanaugh's hearings, attention is now turning to his 12 years on the U.S. Court of Appeals for the District of Columbia.
Because of the unique circumstances and demographics of the District, challenges to local abortion laws are almost unheard of, so there are few direct examples look at. The most high-profile case Kavanaugh has heard on abortion came last year.
The case involved a 17-year-old unaccompanied minor detained while trying to enter the country. While in a government shelter, she sought access to an abortion. Government workers denied her request. In his hearing of the case on appeal, Judge Kavanaugh sided with the government, who argued that there was no "undue burden" placed on the girl by making her wait until she was either released to a sponsor, or returned to her home country.
The Court of Appeals eventually decided in favor of the abortion, but Kavanaugh issued a strong dissent, saying the decision was based on "a constitutional principle as novel as it is wrong." He said that the decision created a new right for unlawful immigrant children to abortion on demand from the government.
The American Civil Liberties Union, who acted on behalf of the minor (given the name Jane Doe in the case) called Kavanaugh's reasoning a "cause for concern when it was issued last year, [but] it's taken on far more importance now."
Writing on the ACLU's website July 18, Brigitte Amiri, who was in court on behalf of Jane Doe, said "Given that Judge Kavanaugh allowed the government to further obstruct Jane Doe's access to abortion, we should all be gravely concerned about what his appointment means for the future of Roe."
Kavanaugh has previously called Roe v. Wade "binding precedent" which he as a judge had to "faithfully follow." But, as Amy Howe noted July 18 on scotusblog.com, precedent that was binding on him as an appeals court judge would be available for him to overturn on the Supreme Court.
Several cases involving state laws limiting access to abortion are expected to reach the Supreme Court in the coming term; a new consideration of the "right to abortion" is likely. An Indiana law banning abortion after a medical diagnosis for the unborn child was recently struck down by the 7th Circuit Court of Appeals, and many are expecting the state to appeal to the Supreme Court.
Numerous pro-life organizations have praised Kavanaugh's nomination. The National Right to Life Committee called him "exceptionally well qualified" and predicted he would be the target of a "smear campaign."
The Senate is expected to begin confirmation hearings in September.
