'Settled law' is not enough to protect Roe v. Wade

'Settled law' is not enough to protect Roe v. Wade
© Greg Nash

Last week, Judge Brett Kavanaugh told Sen. Susan CollinsSusan Margaret CollinsGrassley panel scraps Kavanaugh hearing, warns committee will vote without deal Collins 'appalled' by Trump tweet about Kavanaugh accuser Poll: More voters oppose Kavanaugh’s nomination than support it MORE (R-Maine) that Roe v. Wade is a matter of “settled law.” To the 71 percent of Americans who support Roe’s protection for reproductive rights, that might sound like a relief. It shouldn’t be. Judge Kavanaugh ‘s judicial opinions, speeches, and writing raise grave concerns about how he will rule on reproductive rights cases. And prior Supreme Court nominees testified that Roe was “settled law” — and then went to work hollowing out abortion rights from the bench.

At Judge Kavanaugh’s confirmation hearing, which gets underway today, you’ll hear buzzwords like “settled law,” the importance of “precedent,” and stare decisis — a Latin term meaning “to stand by things decided.” These terms are meant to sound reassuring — a commitment that a nominee won’t upend the status quo. 

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But these phrases contain more lawyerly wiggle room than you might think. They are mainly descriptive. Like they were giving a legal lecture, nominees spend a great deal of time explaining what prior opinions decided, not whether they agree.

Here’s how to tell the difference between description and agreement. When Chief Justice John Roberts was asked during his 2006 confirmation whether he agreed with the Court’s decision in Griswold v. Connecticutwhich protects the right of married couples to use contraception, he said, “I agree with the Griswold Court’s conclusion that marital privacy extends to contraception.”

That’s the type of answer that tells Senators and the public where the nominee stands. But when Roberts was asked whether the court was correct to reaffirm Roe in Planned Parenthood v. Casey, he declined to answer, saying he would not provide a “determination on my part whether this decision is correct or that decision is correct[.]”

What Chief Justice Roberts said about Roe was merely descriptive. Asked to explain what he meant when he previously called Roe “the settled law of the land,” he offered an indisputable fact: that Roe is “settled as a precedent of the Court, entitled to respect under principles of stare decisis.” 

Similarly, at his confirmation, also in 2005, Justice Samuel Alito told us that he agreed with the Supreme Court’s recognition of the right to contraception but reverted to mere description about the court’s cases on abortion.

He said “I do agree that the Constitution protects a right to privacy” when asked about Griswold, and “I do agree with the result in Eisenstadt [v. Baird] “ — another landmark case protecting the right to use contraception.

When asked whether the right to abortion was “settled law,” Alito said that Roe is “an important precedent of the Supreme Court.” When pushed to elaborate, Alito replied: “If settled means that it can’t be re-examined, then that’s one thing,” but added that “settled’ simply means “that it is a precedent that is entitled to respect” — implying that Roe is precedent that can be re-examined. Which means it is hardly settled at all.

After their confirmations, both Chief Justice Roberts and Justice Alito ruled against abortion rights both times the subject came before the court. In 2007, both upheld a federal criminal law banning a safe second trimester procedure. And in 2016, both voted to uphold sham regulations that would have shut down more than 75 percent of the abortion clinics in Texas — a position that would have gutted Roe and Planned Parenthood v. Casey, such that virtually any abortion restriction thereafter would stand.

Perhaps the strongest example of why discussions of “settled law” and “precedent” are no replacement for a nominee’s straight up answer to these questions is the confirmation hearing of Justice Clarence Thomas in 1991. When asked about Roe, Thomas gave a descriptive answer, saying, “The Supreme Court, of course, in the case Roe v. Wade has found . . . as a fundamental interest a woman’s right to terminate a pregnancy.”

Yet less than a year after joining the court, Justice Thomas joined the dissent in Casey, where his view became clear, “We believe that Roe was wrongly decided, and that it can and should be overruled.” The stakes are too high to settle for descriptions of past cases, generalities about respect for precedent, and “settled law.

Every Senator who cares about women’s constitutional right to abortion need to view Judge Kavanaugh’s inevitable hesitation on answering whether he agrees with the Roe decision as clear and convincing evidence that he does not.  

Nancy Northup is president and chief executive of the Center for Reproductive Rights.