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Trump's Wild Card: Speculation Grows on How Kavanaugh Will Handle Roe as Confirmation Draws Near

08-31-2018
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ARLINGTON, VA –  Abortion is likely to be a big issue at Brett Kavanaugh's Senate confirmation hearings. Some who oppose him worry he could upset the balance on the Supreme Court that keeps abortion legal throughout the country.

Attorney Steve Aden with Americans United for Life in Arlington, Virginia, told CBN News those opponents probably won't be able to catch Kavanaugh in a "gotcha" moment on the issue.

"We don't know what Judge Kavanaugh would say on an issue like abortion because that question is not answered by a judicial nominee in Senate judiciary confirmation hearings," Aden explained.

Aden suggested those senators leaning against Kavanaugh's nomination will likely go this route: make him pledge he'll respect settled law – or precedent.

They believe that would prevent a confirmed Justice Kavanaugh from moving to overturn laws such as Roe v Wade without breaking that promise.

"For abortion activists, precedent is like a shibboleth," Aden said. "They want a nominee to agree to conform to what the Supreme Court has said before on an issue like Roe v Wade."

For Precedent against Judicial Activism

Aden said Kavanaugh has shown great respect for settled law.

"Precedent does play a role. Judge Kavanaugh has acknowledged that in his judicial writings," he said.

Known as a constitutionalist, Kavanaugh sees that renowned document differently than judicial activists who seek to put their own mark on it.

"Roe v. Wade is the paramount example of judicial activism in recent Supreme Court history," Aden explained. "We know that Brett Kavanaugh is a dyed-in-the-wool constitutional originalist. He doesn't believe in finding new rights in the Constitution that didn't exist, like the Supreme Court did in Roe v Wade."

Aden pointed out the court itself has reversed its rulings when it comes to bad precedent, citing the 1857 Dred Scott ruling that backed slavery.

"Dred Scott is probably the best example," he said. "There are many, many instances where the Supreme Court made what a lot of folks thought was a final pronouncement on very important issues, only to reverse itself decades later."

For instance, justices were said to regret backing imprisoning Japanese-Americans in camps during World War Two.

Does Ending Roe Doom Legalized Abortion?

Some critics have suggested Kavanaugh's ascent to the court will almost surely mean the demise of legalized abortion throughout the country.

But even if the Supreme Court does overrule Roe v. Wade, it will not suddenly make abortion illegal in all 50 states. Rather, it would return the fate of legal abortion to the states, as it was before the high court whisked it away in 1973.

Here's where it stands right now if Roe is jettisoned: About a third of the states would have significant restrictions on abortions. About a third would maintain the status quo – basically no restrictions and abortion freely available. The final third could become battlegrounds in the legislatures and courts over the fate of abortion.

And that's where some believe it should have been all this time: up to the people and lawmakers and local courts more in touch with their state.

Even a justice as liberal as Ruth Bader Ginsburg has criticized Roe v. Wade for being an overreach by the Supreme Court, taking the issue away from the people and the states.  

Roe's Demise Is Far from a Sure Thing

Until the Supreme Court actually weighs in, all of this is just academic. And that may not happen for a long time because the court doesn't involve itself with abortion that often.

"It has been reviewing abortion decisions at a rate of only about one every four or five years over the last 20 years," Aden said. And even the next time it does, it's far from certain whether the justices would overturn Roe v Wade.  

Aden tallied up the numbers after Justice Anthony Kennedy's retirement and before Kavanaugh's confirmation.

"There are four justices that are pro-abortion," he explained. "We believe that four of those votes are generally pro-life. But only one of the justices – Justice Clarence Thomas – has publicly declared his belief that Roe v Wade should be overturned."

Wild Card Kavanaugh

At least for now, Kavanaugh is a wild card. But Aden has hope as he watches Kavanaugh state respect for precedent, while standing firm in the camp of constitutional originalists.

"Precedent is important for a stable court," Aden said. "But what's more important and what Judge Kavanaugh, we believe, understands should be asked: What does the language of the Constitution mean? That's the way it should be for everybody because the Constitution is the highest law of the land.

"That's why Judge Kavanaugh is a wild card. He actually cares more what the language of the Constitution says and was intended to mean by the framers than he cares about what the Supreme Court said the Constitution says."

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