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Editor's note: This is one of a series of studies examining what Democrats have to say about Supreme Court candidate Brett M. Kavanaugh, and what Kavanaugh's record shows on these issues.
Abortion rights advocates fear that Judge Brett Kavanaugh will become the deciding vote in a future case to potentially overthrow Roe v. Wade, the 1973 Supreme Court decision that recognized the woman's right to an abortion.
After all, Donald Trump, in a presidential debate against Hillary Clinton in 2016, said, "I'm pro-life" and "the judges I will name will be pro-life. "
When Trump named Kavanaugh in July, House Democratic leader Nancy Pelosi m said that "Judge Kavanaugh's comments make it clear that he will expansively manage women's reproductive rights and freedoms and will seek to destroy Roe v. Wade. "
In support of his request, Pelosi cited Kavanaugh's flattering remarks about former Chief Justice William Rehnquist, who expressed a dissenting opinion in the landmark case. In addition, she mentioned a decision that Kavanaugh made last year in the case of an immigrant minor, who was illegally in the country, in federal custody, and wanted to have an abortion.
These issues were raised during Kavanaugh's confirmation hearings, during which he also questioned whether he really believed that Roe v. Wade was an "established law".
Here we examine the specific points raised by Democrats and the facts in each case.
Dissent of the Rehnquist
What the Democrats say: "Last year, Justice Kavanaugh praised dissent in Roe v. Wade, "said Senator Kamala Harris on September 4. On the same day, Senator Chris Coons said of Kavanaugh v. Wade. And on July 12, Pelosi said, "He gave a speech, probably little known, but praising Chief Justice Rehnquist for his dissent in Roe v. Wade. "
What Kavanaugh's disc shows: Kavanaugh called Rehnquist his "first judicial hero" in a September 2017 Conference at a party of the Constitution for the American Enterprise Institute. He stated that Rehnquist, who was one of only two dissenting judges in the case Roe v. Wade, "caused a massive change in constitutional law and our conception of the Constitution."
And as a law student, Kavanaugh, said, he often agreed with Rehnquist's opinions, or at least by acknowledging his convincing arguments.
"In class after class, I stood with Rehnquist. It often meant in the Yale Law School environment that I was alone, "Kavanaugh said. Although "to be sure, I do not agree with all of his opinions," he said.
After that, Kavanaugh went on to highlight five areas in which he stated that Rehnquist "applied his principles and where he had a massive and lasting impact on American law."
One of these topics was "the power of the Court to recognize unenumerated rights," which Kavanaugh covered in five paragraphs:
Kavanaugh Constitution Day Conference, September 18, 2017: A few months after entering the court in 1972, Judge Rehnquist was faced with a plea concerning the constitutionality of a law banning abortion in the Roe v. Wade. Rehnquist, along with Judge Byron White, finally disagreed with the court's seven decisions recognizing a constitutional right to abortion.
Rehnquist's dissenting opinion does not suggest that the Constitution protects any rights other than those enumerated in the text of the Bill of Rights. But he stated that under the precedents of the Court, such an unlisted right had to be rooted in the traditions and conscience of our people. Given the prevalence of abortion regulations, both historically and at the time, Rehnquist said that he could not reach such a conclusion regarding abortion. He explained that a law prohibiting abortion even when the life of the mother was in danger would constitute a violation of the Constitution. But otherwise, he said states have the power to legislate in this area.
In subsequent cases, Mr. Rehnquist reiterated his view that unenumerated rights could only be recognized by the courts if the right claimed was rooted in the history and tradition of the nation. The Washington case c. Glucksberg's 1997 included a right to assisted suicide. For a majority of five to four votes this time, Rehnquist wrote to the Court that the non-enumerated rights and freedoms protected by the due process clause are those deeply rooted in the history and tradition of the nation. And he rejected the claim that assisted suicide was considered a fundamental right.
Of course, even a first-year law student could tell you that Glucksberg's unlisted rights approach was not consistent with the approach of abortion cases such as Roe v. Wade in 1973 – as well as the 1992 decision reaffirming Roe Planned Parenthood v. Casey.
What to do with that? In this context, it is fair to say that Rehnquist J. failed to convince the majority of the judges in the context of the abortion, either in Roe himself, or in later cases like Casey. But he manages to stem the general wave of judicial creation free of unlisted rights that are not rooted in the history and tradition of the nation. The Glucksberg case is an important precedent to date, limiting the role of the Court in the area of social policy and helping to make the Court function more like a court of law and less as a social policy institution.
Although his remarks were complementary, Kavanaugh never explicitly said that he agreed with Rehnquist's dissent in Roe v. Wade. But it is not clear that he disagrees with him,
Garza c. Hargan
What the Democrats say: "Last year, you wrote a dissent in Garza v. Hargan. And I think a young woman in Texas was trying to get an abortion, "said Senator Dianne Feinstein on September 4." In that dissent, you argued that even though the young woman had respected Texas parental notice. law and obtained the approval of the judge, it should nevertheless – nevertheless be prohibited. "
What Kavanaugh's disc shows: About a month after Kavanaugh's conference on Rehnquist, he was part of a three-judge panel that ruled on a case involving a 17-year-old immigrant who illegally entered the United States without his parents. abortion.
Instead of parental consent, she obtained permission from a local abortion judge, if needed, in Texas, where she was detained at a federally funded immigration center.
But the Refugee Resettlement Office of the Department of Health and Social Services, which assumes responsibility for unaccompanied minors traveling to the United States, would not allow him to leave the facility to submit to the procedure.
With the help of Rochelle Garza, a court-appointed guardian, "Jane Doe" or "JD", the minor was identified in court documents, brought an action in the District Court of Columbia where Judge Tanya Chutkan ordered federal officials to allow him to have the abortion, "promptly and without delay".
The government appealed the decision to the district court of appeal, arguing that it should not "facilitate" the abortion and that the girl should be transferred first from guarding the HHS to an adult sponsor before terminating her pregnancy.
In Judgment 2-1, the jury, including Kavanaugh, sided with the government. (Patricia Millett JA dissenting.)
The decision, which has not been signed, says: "The Government argues that this process – whereby a minor is released from custody of the HHS to a sponsor – does not improperly impose the right of the minor, under the Supreme Court, an abortion. We agree, as long as the process of securing a sponsor to whom the juvenile is released is unfolding quickly. "
HHS has been given another 11 days to find a sponsor for the pregnant teenager. IIf a sponsor could be found to take care of the minor, she would be allowed to have an abortion. But if no sponsor could be found, the case would be referred to the district court.
The girl was not necessarily prevented from abortion, as Feinstein said. Instead, the panel decided that she should be placed at a sponsor's house before having one.
In response, Jane Doe's lawyers (from the American Civil Liberties Union) requested that the case be reviewed by the court of appeal, which, by a vote of 6 to 3, overturned the court's decision and paved the way for abortion. .
In his dissenting opinionKavanaugh said the majority was wrong.
Kavanaugh dissent, Garza c. Hargan, 2017: The bench majority made a serious mistake in this case. The panel of three judges ruled that the US government, which detains an illegally-held immigrant minor, could request that the minor be quickly transferred to an immigration sponsor before the minor makes the decision. abort. This decision builds on the many Supreme Court precedents that the government has acceptable interests in promoting the life of the fetus, protecting the best interests of the child, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the government can promote these interests as long as it does not impose an undue burden on a woman seeking an abortion.
On the other hand, the majority decision today "substantially" adopts dissent from the panel and ultimately rests on a new and false constitutional principle: a new right for illegal immigrant minors held by the government American to obtain an immediate abortion on demand, The government's efforts to quickly transfer minors to their immigration sponsors before they make this momentous decision. The majority decision represents a radical extension of the Supreme Court's jurisprudence on abortion. It is consistent with the views expressed over the years by Brennan, Marshall and Blackmun JJ.A., not the numerous majority opinions of the Supreme Court which have repeatedly confirmed reasonable rules that do not impose an undue burden on the Court. Abortion recognized by the Supreme Court in Roe v. Wade.
Kavanaugh said the government "was simply trying to put the minor in a better place when he decided to have an abortion."
It was even possible that the minor – who would have been pregnant for 16 or 17 weeks at the end of those 11 days – would have been allowed to abort if a sponsor had not been found, he added. (Texas prohibits abortions after 20 weeks.)
Kavanaugh did not go as far as Judge Karen Henderson, who said that unauthorized immigrant minors were not allowed to have a spontaneous abortion.
But at the start of the confirmation hearings, Feinstein, the Democratic member of the Senate Judiciary Committee, said she was still suspicious of Kavanaugh's argument.
"If adopted, we believe [it] would require the courts to determine whether a young woman had a sufficient support network to make her decision, even in cases where she went to court, "said Feinstein. "I think that's why you're willing to ignore precedents," she said of Kavanaugh, who told Republican Susan Collins in August that Roe v. Wade was an "established law".
He said the same thing to Feinstein on September 5th.
"Senator, I said it was a Supreme Court precedent entitled," Comply with the principles of stare decisis, "said Kavanaugh, referring to the legal term for allowing previous decisions to be made. "And one of the important things to keep in mind about Roe v. Wade is that it has been restated many times over the last 45 years, as you know and most of all. , especially reaffirmed in Planned Parenthood against Casey in 1992 "he said.
2003 Email
What the Democrats say: "Judge Kavanaugh claims he would not overthrow Roe v. Wade by hiding behind the idea that it was a" well-established law "and a" precedent, "said Senator Patty Murray m said September 6th. "That's what he said in his auditions so far, and he hopes it will deceive women across the country into believing that their rights and freedoms are safe. We know that it is not true. A decision as important as Roe's is only settled by passing the law and precedents, until Judge Kavanaugh and four other ideological justices of the Supreme Court vote to overthrow him. This new document confirms our worst fears. "
What Kavanaugh's disc shows: A day after reaffirming that he thinks Roe v. Wade was "established as a precedent", the New York Times Kavanaugh wrote: "I am not sure that all jurists consider the Roe Act as well established law at the Supreme Court level, since the Court can always override its precedent and three Court judges would do so. This email is the document that Murray referred to in his remarks.
At the time of sending e-mail, Kavanaugh was working in the George W. Bush administration, and he was responding to an e-mail containing a draft editorial written to defend some of President Bush's judicial candidates. The first draft included the following sentence: "First, it is generally accepted that jurists of all persuasions consider that Roe v. Wade and his descendants are the well-established law of the land. "
Feinstein interviewed Kavanaugh about this email on September 6 – the same day, the Senate Judiciary Committee released it with other documents.
"This was seen as if you were saying that you do not think Roe is settled," said Feinstein, after reading some of the e-mail out loud. "So please, again, tell us why you think Roe is a well-established law, and if you could, do you think it's properly regulated?"
Kavanaugh said that he was only questioning the accuracy of the language of the editorial.
"The broader point was simply that I thought it was exaggerated about lawyers," he told Feinstein. "And I'm still concerned about the accuracy and I thought it was not a perfectly accurate description of the jurists – all the jurists because it was referring to all." . ")
Kavanaugh went on to tell Feinstein that "Roe v. Wade is an important precedent of the Supreme Court "which has been" repeatedly reaffirmed ". However, as she had asked, he avoided answering correctly.
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