The Supreme Court appears set to overturn or roll back the Roe v. Wade decision that effectively legalized abortion nationwide, undercutting new justices’ assurances that a woman’s right to an abortion was “settled law,” The Associated Press reports.
Justice Brett Kavanaugh told senators that Roe v. Wade was “settled as precedent,” appeared open to overturning the decades-old decision during a hearing on Mississippi’s 15-week ban.
“The Supreme Court has recognized the right to an abortion since the 1973 Roe v. Wade case — has affirmed it many times,” Kavanaugh assured senators during his 2018 confirmation hearing.
Kavanaugh stressed the “importance of the precedent” and said that a “woman has a constitutional right to obtain an abortion before viability.”
But Kavanaugh sang a different tune this week.
“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” he said.
Justice Amy Coney Barrett raised concerns when she argued that Roe was not a “super precedent,” or a decision that is so settled that there are no calls to revisit it.
But Barrett also assured senators that her personal view would not affect her decision.
“It’s not the law of Amy,” she told senators. “It’s the law of the American people.”
But last week, Barrett pressed attorneys on why women can’t simply give their babies up for adoption instead of having an abortion.
“It’s not like the senators have been naive and have trusted too much,” Neil Siegel, a law professor at Duke University, told the AP. “I think the problem is primarily that we’re deeply polarized, and the Constitution makes nomination and confirmation of federal judges, including justices, a political process.”
Are confirmation hearings a “sham”?
Senate Judiciary Chairman Dick Durbin lamented that confirmation hearings for Supreme Court justices don’t always paint a full picture.
“We can’t ask for sworn affidavits,” Durbin said. “My belief is the person and their life experience is more predictive of the outcome of future cases than any declaration they make to a committee.”
But Sen. John Cornyn, the No. 2 Republican in the Senate, shrugged off the differences between hearing answers and real-life decisions.
“I’ve seen too many confirmation conversions, where people basically repudiate things they’ve done and said in the past in order to get confirmed, but once we’ve somebody gets confirmed, there’s basically nothing we can do about it,” he said. “I don’t think they’re a sham. I think there’s useful discussions but obviously there’s no consequences associated with voting in a way that’s different from what you said in the hearing.”