How Roe v. Wade Has Shaped Kavanaugh’s Confirmation Battle

NEWS ANALYSIS: Abortion politics are central to the dramatic and bitter political theater currently playing out in Washington.

Brett Kavanaugh gives his opening statement after being sworn in before the Senate Judiciary Committee Sept. 4.
Brett Kavanaugh gives his opening statement after being sworn in before the Senate Judiciary Committee Sept. 4. (photo: AP photo/J. Scott Applewhite)

WASHINGTON — Early this month, as Judge Brett Kavanaugh, President Trump’s second nominee for the U.S. Supreme Court, began four days of grueling testimony before the Senate Judiciary Committee, veiled protesters stood vigil outside the room, signaling their moral outrage at the danger he posed to abortion rights.

Clothed in the distinctive flowing garments of the oppressed female characters in The Handmaid’s Tale, a television show and novel that explores a dystopian world of male domination, one activist warned of a coming “misogynistic nightmare.”

“American women may not be handmaids, but we are still living in a country where conservative politicians would mandate forced pregnancy,” the protester told reporters.

The protest marked a broad campaign, in and out of the Senate hearing, to challenge and derail Kavanaugh’s confirmation to the high court.

Well before Kavanaugh began his testimony at the Senate hearing, Senate Minority Leader Chuck Schumer, D-N.Y., vowed to “oppose Judge Kavanaugh’s nomination with everything I have” and promised that the jurist would be compelled to clarify his opinion of Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion on demand across the nation.

Democratic lawmakers believe that Kavanaugh, if confirmed, would pose a serious threat to Roe. That’s because, if Kavanaugh survives the confirmation gauntlet even after facing unprecedented accusations of sexual misconduct that date back to his high-school days, he will fill the seat left vacant after the June 2018 retirement of Justice Anthony Kennedy, the court’s “swing vote,” who often sided with its four-member liberal wing on abortion-related cases.

“This is the first time in a generation where you could have a majority on the court with close ties to the conservative legal movement, and that is why the stakes are so high,” Matthew Continetti, the editor in chief of The Washington Free Beacon, told the Register.

On Sept. 4, the first day of Kavanaugh’s hearing, Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Judiciary Committee, placed Roe v. Wade front and center, as she recalled the deaths of women from illegal abortions during the 1950s and 1960s and expressed alarm that women could face such tragic choices again.

“[H]ow you make a judgment on these issues is really important to our vote as whether to support you or not,” Feinstein told Kavanaugh in an opening statement. “I don’t want to go back to those death tolls.”


Predictable Focus

The intense focus on the future of Roe v. Wade may surprise some voters. But Feinstein’s statement was entirely predictable: Chief Justice John Roberts and Justices Neil Gorsuch, Samuel Alito and Clarence Thomas — all nominated by Republican presidents who sought to name originalist jurists (those who interpret the meaning of the Constitution as stable since the time of its establishment) — faced the same questions about whether Roe was “settled” law or vulnerable to a constitutional challenge.

“Sometimes the tactics that are used or controversies that arise may mask the fact that Roe’s future remains a primary feature of the confirmation process,” Thomas Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, told the Register. 

But the “engine” that drives the conflict “is abortion and the possibility that the court may change its position on whether the Constitution protects the right to abortion.”

In the past half-century since the high court’s legalization of abortion, said Teresa Collett, a professor of law at the University of St. Thomas, “pro-choice women, including Justices Ruth Ginsburg and Sandra Day O’Connor in Planned Parenthood v. Casey, have characterized abortion as a necessary precondition to sexual equality.”

Casey was another landmark Supreme Court decision in 1992 that upheld abortion rights, reaffirming the court’s earlier Roe v. Wade decision.

With this ideological framework in mind, said Collett, an exchange about Roe at a Supreme Court confirmation hearing is never just about access to abortion, but an opportunity to size up the nominee’s commitment to sexual equality. Likewise, when Supreme Court or appellate-court nominees come with a conservative religious profile, they will likely be framed as a danger to social progress — a strategy that backfired on Feinstein when she attacked the Catholic beliefs of pro-life jurist Amy Comey Barrett during her confirmation hearing for the federal bench last year.

“Anything in these hearings that touches on the role of men and women, the role of sex in the culture, will necessarily evoke a response that is characterized as either supportive of women rights or supportive of traditional sexual morality, including a prohibition on abortion,” said Collett.


Grilling Kavanaugh

Her remarks help explain the striking animus that inspired shouting protesters to repeatedly disrupt Kavanaugh’s testimony, as well as the aggressive interrogation by Democratic senators.

“Do you agree with Justice O’Connor that a woman’s right to control her reproductive rights affects her ability to ‘participate equally in the economic and social life of the nation’?” Feinstein asked Kavanaugh.

“As a general proposition,” he replied, “I understand the importance of the precedent set forth in Roe v. Wade.”

The nominee stressed that he could not prejudge how he would decide a particular case, but the questions kept coming.

Sen. Richard Durbin, D-Ill., targeted Kavanaugh’s dissent in a 2017 abortion case that involved an undocumented minor.

The case, Garza v. Hargan, pitted the Trump administration against the American Civil Liberties Union, and the D.C. Circuit Court of Appeals ruled that an unaccompanied minor held in custody by the Department of Health and Human Services had a constitutional right to an abortion.

In his dissent, Kavanaugh said the ruling ignored the federal government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”

Further, Kavanaugh challenged what he viewed as the creation of a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” 

Pressed by Durbin to explain his legal reasoning. Kavanaugh said he had followed Supreme Court precedent, and while there was “no case on exact point,” his dissent was based on rulings that allowed parental-consent laws regarding abortion at the state level.


#MeToo Context

But on Sept. 14, soon after the Senate hearings were completed, the confirmation process abruptly veered into unpredictable terrain. Feinstein announced that she had received a letter from Christine Blasey Ford, a California-based research psychologist, who accused Kavanaugh of sexual assault dating back to their high-school days in Maryland. Kavanaugh immediately denied Ford’s claims.

The claims triggered a decision to hold an additional committee hearing Sept. 27, where both Ford and Kavanaugh could speak directly and publicly about the allegations.

In advance of the hearing, Democratic leaders declared they believed her accusations and called for the confirmation process to be suspended, allowing time for a review of all the allegations by the Federal Bureau of Investigation.

“Not only do women like Dr. Ford, who bravely comes forward, need to be heard, but they need to be believed,” stated Sen. Mazie Hirono, D-Hawaii, after the allegations against Kavanaugh came to light.

Legal  and political analysts contacted by the Register reserved judgment regarding the truth of Ford’s claims and expressed regret that her allegations had been politicized. But they also suggested that the resulting firestorm in Washington was linked to the long-standing controversy over Roe v. Wade.

After a year of searing revelations about powerful men facing allegations of sexual harassment, the recent accusations against Kavanaugh provide an additional reason for abortion-rights supporters to double down, said Collett. “We are debating whether the relationship between men and women has become, in some ways, so toxic that legal abortion and publicly financed birth control are necessary in order to protect women’s ability to have a dignified life.”

“No doubt the #MeToo movement is fueling this surreal transformation of the confirmation process,” Gerard Bradley, a professor at the University of Notre Dame Law School, told the Register.

“But make no mistake about it: This is about abortion. Or, more exactly, it is about Roe v. Wade, for no merely political contest over regulating abortion has or could ever generate this level of drama and intrigue and bitterness.” 


Ideological Divide

One striking example of this bitterness, say analysts, is Hirono’s angry insistence that Ford’s allegations against Kavanaugh should be believed.

When The Wall Street Journal editorial page criticized Hirono’s comments and concluded that the “new American standard of due process will be the presumption of guilt,” the senator escalated her attack on the nominee during an interview with CNN.

Kavanaugh “has an ideological agenda, and I can sit here and talk to you about some of the cases that exemplify his, in my view, inability to be fair,” the senator asserted on national television.

Surveying the statements of Hirono and other lawmakers on Capitol Hill, Bradley pondered the ideological divide over abortion that has transformed the Supreme Court confirmation process into a blood sport.

The headlines “would have surprised the ‘Roe Court,’ which published that awful ruling supremely confident that it would put the matter to rest,” he said, referencing the Supreme Court justices who crafted the 1973 decision.

“It turns out that their political judgment was as catastrophically bad as was their legal judgment.”

On Sept. 28, the Senate Judiciary Committee is scheduled to vote on whether Kavanaugh’s nomination should go forward. If he prevails, the entire Senate will vote on the matter by next Thursday, if not sooner.

But even if Kavanaugh does take his place on the high court, future “nominees suspected of reversing Roe can expect to have their high-school classmates interrogated,” Bradley warned.

“Very few people 50 or over could pass this test, and none would likely want to risk taking it.”

Joan Frawley Desmond is a Register senior editor.