When it comes time for Judge Brett Kavanaugh’s confirmation hearings and ultimate vote, one of the major issues that will be on people’s minds is what he thinks of Roe v. Wade. Past nominees have dodged the question ― Clarence Thomas famously said that he hadn’t given it any thought during or since law school ― or answered with the meaningless tautology that the case is indeed precedent from the Supreme Court and is the “law of the land.” A notable exception is Ruth Bader Ginsburg, who answered the question eloquently and in depth.
When Judge Kavanaugh is asked about Roe, he shouldn’t be able to dodge the question, because we have an unusually clear record of how he feels. I’m not referring to the case from 2017, when Kavanaugh was in dissent, arguing that the government could prevent an unaccompanied immigrant minor in federal custody from having an abortion. His opinion in that case was distressing, and an indication of a serious lack of concern for a minor’s well-being, but there’s much more direct evidence than that. There’s even video.
The evidence in question is a speech that Kavanaugh gave to public policy research firm American Enterprise Institute in September 2017. This speech, which you can both read and watch, is about as clear an indication you’ll ever find as to how a judge feels about a major Supreme Court case.
“When Kavanaugh is asked about Roe, he shouldn’t be able to dodge the question, because we have an unusually clear record of how he feels.”
With this speech, Kavanaugh tells us, without much obfuscation, that he does not think the Constitution protects a right to abortion and that Roe was wrong. The entire speech is framed around praising Chief Justice William Rehnquist, who, as an associate justice, wrote the main dissent in Roe.
After praising Rehnquist’s opinions generally, Kavanaugh highlights five areas of law and reviews Rehnquist’s positions on each. One of those areas is unenumerated rights, or rights not specifically mentioned in the Constitution, such as abortion. It is an almost impossible to conclude that Kavanaugh is highlighting this area of law just as a general point of interest. Rather, it’s because he agrees with Rehnquist. After all, in another part of the speech he tells us about one Rehnquist opinion he disagrees with — the 1988 decision that approved an independent counsel investigation into allegations of executive branch misbehavior.
Turning to the section of the speech that answers the question on everyone’s mind ever since he was nominated, Kavanaugh begins by reviewing Rehnquist’s dissent in Roe, which was a 7-2 decision. In his dissent, Rehnquist rejects the idea that abortion is protected by the Constitution and argues that states should be left to their own devices when it comes to regulating ― or even outlawing ― abortion.
In the speech, Kavanaugh highlights the fact that Judge Rehnquist dissented in Roe, and explains in depth the rationale behind Rehnquist’s opinion — that abortion is not deeply rooted in our country’s traditions. From there, Kavanaugh then moves to a newer case involving rights not specifically listed in the Constitution, Washington v. Glucksberg. In that case, Chief Justice Rehnquist wrote an opinion that rejects a constitutionally protected right to assisted suicide. Rehnquist used the same rationale in Glucksberg that he used in his dissent in Roe – that assisted suicide is not a right protected by our “nation’s history and tradition.”
Kavanaugh then connects the two cases. After implicitly praising Rehnquist’s success in Glucksberg, he then says that Rehnquist’s approach was not consistent with Roe (or its successor, Planned Parenthood v. Casey). In making this connection, he uses language that is straight from the playbook of those critical of abortion rights. He says that Rehnquist was “successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” He calls this “an important precedent” that “ensures that the Court operates more as a court of law and less as an institution of social policy.” And in concluding the speech, he calls this subsequent case important in ensuring courts act appropriately.
It is true that nowhere in the speech does Kavanaugh come out and directly say he agrees with the Roe dissent or exactly whether he would vote to overturn the 45-year-old precedent. But he doesn’t have to. Putting this all together is almost as easy as 2 + 2. Kavanaugh is telling us, without even having to read between the lines, that he agrees with the Roe dissent and thinks states should be able to outlaw abortion without violating the Constitution. Expecting him to uphold precedent saying otherwise is a fool’s errand.
“It is true that nowhere in the speech does Kavanaugh come out and directly say he disagrees with Roe. But he doesn’t have to.”
Thanks to this speech, Kavanaugh’s confirmation hearings should be different than those of many past Republican Supreme Court nominees. This time, we know that the nominee disagrees with Roe and any constitutional recognition of the right to abortion. He told us so himself, with no equivocation.
It is incumbent on Senators who care about Roe to recognize this fact, and to question Kavanaugh accordingly. Senators who have said that they support Roe ― like Susan Collins (R-Maine), Lisa Murkowski (R-Ark.), Joe Manchin (D-W.Va.), Heidi Heitkamp (D-N.D.) and Doug Jones (D-Ala.) ― have all they need to know right here in this speech. If they ignore it, they are clearly signaling that while they might say they care about Roe, they actually don’t.
Any senator who says we can’t really know what Kavanaugh thinks about abortion rights is intentionally ignoring reality. And any senator who votes to confirm Judge Kavanaugh after reading this speech forfeits the right to be surprised or outraged if he helps overturn Roe and end constitutionally protected abortion in this country will be on their hands. Because they can’t say he didn’t warn them.
David S. Cohen is a professor of law at Drexel University’s Thomas R. Kline School of Law. He is on the board of the Abortion Care Network.