Day 2: Judge Brett Kavanaugh Skirts Questions on Abortion

Judge Brett Kavanaugh, on the second day of his confirmation hearing, repeatedly refused to answer questions about whether important cases on reproductive rights were correctly decided by the U.S. Supreme Court. He instead invoked “nominee precedent”—the notion that nominees cannot discuss issues that might come before them on the bench. When pressed by members of the Senate Judiciary Committee, Judge Kavanaugh only stated that, if confirmed, he would “follow Supreme Court precedent… whether I agree with it or disagree with it.” His record on reproductive rights, however, demonstrates otherwise.

Senator Dianne Feinstein (D-CA) asked Judge Kavanaugh to distinguish whether he believes Roe v. Wade is “correct law,” rather than merely “settled law.” While Kavanaugh described Roe as “settled precedent of the Supreme Court” that has been “reaffirmed many times over the past 45 years,” again and again he neglected to directly state his own view on the right to abortion. His factual statement that Planned Parenthood v. Casey is “precedent on precedent” (as it reaffirmed the core holding of Roe) failed to answer whether or not he agrees it was correctly decided.

Senators Dick Durbin (D-IL), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) all questioned Judge Kavanaugh extensively on his dissent in Garza v. Hargan, in which his decision would have blocked an undocumented minor’s access to abortion to give the government more time to find a “sponsor” at a time when, as Senator Durbin noted, “the 20-week clock was ticking.”

During the hearing, Judge Kavanaugh argued that his Garza opinion was based on the “parental consent decisions of the Supreme Court.” However, Supreme Court precedent set by Bellotti v. Baird requires that, in cases where parental consent is required, that there also be a judicial bypass process. The minor in Garza, Jane Doe, had already appeared before a Texas judge who determined she could consent to the abortion on her own behalf and granted her a judicial bypass. Judge Kavanaugh’s dissent, which permitted the government to bar a minor’s access to abortion, failed to abide by the core holding of Roe and Casey: that a woman has the right to make the ultimate decision as to whether to obtain an abortion prior to viability.

Despite Judge Kavanaugh’s statements that he is guided by precedent, his dissent in Garza demonstrates a deep disregard for these standards—in the case of Roe, standards with a 45-year history.

“Prior Supreme Court nominees testified that Roe was ‘settled law’—and then went to work hollowing out abortion rights from the bench,” said Nancy Northup, President and CEO of the Center for Reproductive Rights. Just as Chief Justice Roberts attested to Roe being “settled as a precedent of the Court, entitled to respect under principles of stare decisis [a Latin term meaning ‘to stand by things decided’]” during his confirmation hearing, Judge Kavanaugh remarked today that Roe “is settled as precedent of the Supreme Court entitled to respect under principles of stare decisis.” Chief Justice Roberts then ruled against abortion rights both times the subject came before the Court.

Near the conclusion of the hearing, Senator Kamala Harris (D-CA) directly asked Judge Kavanaugh: “Does the right to privacy protect a woman’s right to terminate a pregnancy?” He flatly refused to answer. Judge Kavanaugh’s hostile record on reproductive rights and refusal to provide a meaningful answer about whether he agrees with the Roe decision must be seen by the Senate as clear and convincing evidence that he does not.