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Looking at Supreme Court candidate Brett Kavanaugh to testify before the Senate Judiciary Committee, legal analyst Rebecca Buckwalter-Poza noticed something curious: in his dealings with Democratic lawmakers, Kavanaugh seemed unable to mention Roe mentioning Planned Parenthood c. Casey, the less well-known but equally important 1992 judgment on how states could (and could not) regulate abortion.
Asked, for example, by Senator Dianne Feinstein of California, a Democratic member of the committee, how he saw "the woman's right to choose" to end a pregnancy, Kavanaugh was quick to move from Roe to Casey precedent over previous ".
Kavanaugh quoted Casey again when he was questioned later in the day by Dick Durbin, Democrat of Illinois, about his disagreement in Garza v. Hargan, the case of a 17-year-old undocumented immigrant seeking abortion in Texas. In his only opinion on abortion, Kavanaugh wrote that the young woman had to find an immigration sponsor in order to meet the requirement of parental consent, although the judge of the lower court waived this requirement.
"The precedents are not like a cafeteria," said Kavanaugh, questioned about the dissent, which appears to have improved his stance with conservative groups that have largely guided Trump's judicial appointments. And these have progressed rapidly while other aspects of his program have failed.
Buckwalter-Poza, who successfully sued President Trump for blocking Twitter users, seized this exchange, which she identified as essential to Kavanaugh's strategically unclear views on reproductive rights. "Contra Kavanaugh's claim that he can not give clues or predictions, his penchant for Casey's education is right there," wrote Buckwalter-Poza, who graduated in law at Yale and provides legal analysis to the Daily Kos, a liberal political site. . "If Kavanaugh's words were confirmed, states would be free to eliminate access to abortion through increasingly draconian laws."
Senator Kamala Harris, D-Calif., Interrogates Brett Kavanaugh on September 6th. (Photo: J. Scott Applewhite / AP)
Kavanaugh testified for two days, becoming entangled in passionate exchanges with Senators Pat Leahy of Vermont and Kamala Harris of California, both of whom routinely questioned his credibility. But his comments on Casey could be the clearest sign of how Kavanaugh would actually rule in an abortion case. According to Helene Krasnoff, Senior Director of Public Policy for Planned Parenthood, one of them should appear before the Supreme Court, along with 14 abortion-related cases. Any of them could end up in Kavanaugh's file.
Kavanaugh's comments on Casey strongly suggest that as a Supreme Court judge, he would allow states to impose onerous restrictions on abortion, restrictions that could almost completely ban the process.
In his testimony, Kavanaugh stated that Casey "reaffirmed" Roe v. Wade. In the narrower sense, this is true: a Supreme Court with appointments to Nixon and Reagan could have overthrown Roe, but she did not. William Rehnquist, the conservative chief justice whom Kavanaugh hailed as "hindering the general wave of judicial creation free of unenumerated rights that were not rooted in justice," was one of the proponents of the overthrow of Roe. in the history and tradition of the nation. "
But despite Roe's weak claim, Casey also gave States enormous latitude in creating the notion of "undue burden". Judges wrote critically that "the woman has the right to choose from it is not at all forbidden for the state to be prevented from taking steps to ensure that this choice is reflected." and informed. As long as the state restriction on abortion has not been tried by the courts to "impose an undue burden on a woman's ability" to choose to abort, this restriction was not prohibited by Roe. And among the many constraints presented in the Casey case, only one (spousal notification) was found to be "undue", while state regulations requiring informed consent, parental consent and waiting times did not were not.
Protesters gathered in the Supreme Court in April 1992 when the court heard arguments about a restrictive law on abortion in Pennsylvania. (Photo: Greg Gibson / AP)
As an abortion rights advocate at the time lamented, "the judges blew a hole big enough to pass a Mack truck." Casey and the ensuing national law led six states to a single abortion clinic.
The deferral to state rights, and not Roe's respect, makes Casey attractive to conservative jurists like Kavanaugh. The references to the case, such as the appointment made last week before the Senate Judiciary Committee, are widely regarded as a kind of coded assurance by conservative supporters. These supporters openly expect Kavanaugh to reduce the right to abortion, even as his opponents continue to plead against him.
"Justice Kavanaugh's views on women's reproductive rights are perfectly clear," Feinstein told Yahoo News. "There are no restrictions that it would consider" too heavy "to violate the Supreme Court's precedent related to women's freedom of reproduction." These views were particularly relieved when Senator Cory Booker, DN.J. an e-mail from 2003 in which Kavanaugh wrote: "I am not sure that all lawyers speak of Roe as the well established law at the Supreme Court level, because the court can always overrule its precedent.
But even without this email, Kavanaugh's repeated hints to Casey clearly show what he really believes. "He shows us exactly what he believes," Erin Matson, an abortion rights activist, wrote on Twitter. For Kavanaugh, she said, Casey "is the key to blocking access to abortion."
These beliefs are not outside the American mainstream: 29% of Americans want abortion to be illegal. The question is not whether Kavanaugh holds this belief, but he has declared his beliefs in an honest and complete manner. He – and his detractors – are perfectly aware that to get confirmation from the entire Senate, he has to convince two Republicans of the rights in favor of abortion, Susan Collins of Maine and Lisa Murkowski of Alaska. And while he has assured both of them that Roe is a "well-established law," his views on Casey question the frankness of these assurances.
"Kavanaugh's views on Casey are critically important because they could allow him to reduce access to abortion without overthrowing Roe," said Nan Aron of Alliance for Justice, a non-profit organization. . "His record shows that he has a broad interpretation of precedents, such as Casey, that allow states to restrict abortions in many ways as long as they are not subject to an" undue burden "."
Lawyer Rochelle Garza, in the center, who helped an undocumented teenager fight for an abortion in Texas, testified before the Senate Judiciary Committee on September 7, the final day of Brett Kavanaugh's confirmation hearing. (Photo: J. Scott Applewhite / AP)
An indication of how Kavanaugh could use Casey to smother Roe is evident in his dissenting opinion in the Garza v. Hargan, the Texas teenager case. Kavanaugh was the only member of a panel of three Circuit Court judges to plead against the granting of abortion to the 17-year-old immigrant in question. He described it as seeking an "abortion on demand", an intentionally incendiary phrase deployed by anti-abortion groups. More importantly, he ordered that the young woman be ordered to find an immigration sponsor, an imposition that exceeds all the requirements she had already met. Kavanaugh stated that it was his duty "to apply the precedents and principles set out in Supreme Court decisions".
His argument was obviously intended to appease the anti-abortion groups who were then preparing to recommend a replacement for Anthony Kennedy, who was about to retire. The majority of the court easily dispensed with Kavanaugh's weak reasoning, noting that asking the young woman to spend weeks looking for an immigration sponsor was the very definition of "undue burden".
But when he joined the Supreme Court, Kavanaugh would be part of a conservative majority of five judges sharing his views on Casey. Samuel Alito (nominated by George W. Bush) and Clarence Thomas (a George HW Bush nominee) in Whole Woman's Health vs. Hellerstedt, in 2016, imposed new restrictions on access to the company. ;abortion. impose. Thomas, in particular, returned to Casey as a standard to which the Supreme Court had waived by preventing Texas from instituting new charges in the event of abortion.
Neil Gorsuch, the first member of the Supreme Court appointed by Trump, had not been seated at the time of Whole Woman's health decision, and his specific point of view on abortion is not entirely certain. However, he is widely expected to share Casey's conservative interpretation, which sees the decision as a new burden, as long as these charges are justified.
Brett Kavanaugh is preparing to testify before the Senate Judiciary Committee on September 6. (Photo: Alex Brandon / AP)
"Precedent", then, takes on a whole new meaning, as a way to avoid Roe, not to protect him. The assistant to a Democratic member of the Senate Judiciary Committee described Kavanaugh's appeal as a "precedent" of dishonesty. The precedent, after all, is nothing more than a decided case, and Kavanaugh's favorable opinion of Casey suggests that he is content to accumulate new restrictive decisions on Roe until that the historic decision is finally stifled. The higher the previous anti-abortion, the earlier Roe will become weak.
On this point, anti-abortion activists are in agreement. One of them, Reverend Frank Pavone, wrote in an editorial for the conservative magazine LifeSiteNews: "The precedents do not last forever. The precedents may be wrong. He predicted that with Kavanaugh on the ground, Roe would "follow other abandoned lies," such as racial segregation.
The irony of Kavanaugh's hearings is that, despite his constant escapes, his opinions are very clear. "There is no doubt that he would vote for abortion," says Amanda Thayer, spokesperson for NARAL Pro-Choice America. On this point, she and Pavone could agree, even if they agree on few other things. The question now is whether Kavanaugh will have the chance.
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