Is Roe v. Wade, the 1973 Supreme Court decision ensuring abortion rights, the “settled law” of the United States?
Judging from the draft opinion leaked Monday night, former President Donald Trump’s nominees to the high court sure don’t think so.
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But that’s not the answer they gave during their confirmation hearings, when all three Trump-appointed justices attempted to reassure Congress and the public that pro-choice advocates had nothing to fear.
“That is the law of the land. I accept the law of the land, Senator, yes,” soon-to-be Justice Neil Gorsuch intoned when asked about Roe.
“It’s not the law of Amy!,” then-nominee-to-be Justice Amy Coney Barrett told senators repeatedly to underscore that she couldn’t simply undo laws because she didn’t like them personally or they went against her religious views.
During his confirmation hearings, Justice Brett Kavanaugh told Democratic senators exactly what they wanted to hear: that Roe is “settled as a precedent of the Supreme Court.”
But so much for all that. A gaping chasm opened up on Monday between those cautious assurances during Senate confirmation hearings, and the strident, bombastic language in the draft opinion that now appears set to demolish the federal protection for access to abortion in the U.S.
“That is the law of the land. I accept the law of the land, Senator, yes,” soon-to-be Justice Neil Gorsuch intoned when asked about Roe.
“Some people will be enraged and will feel that they were misled during the Senate confirmation hearings” if the leaked draft does eventually become the court’s final decision, Jens David Ohlin, vice dean at Cornell Law School, told VICE News.
And little wonder. You don’t have to look far to see where the justices, then nominees trying to win confirmation, expressed themselves in very different terms from those used in the leaked draft.
Of course, none of Trump’s three nominees to the Supreme Court said precisely what they were going to do about abortion. But they damn sure tried to give the impression that abortion rights advocates had nothing to worry about, while carefully avoiding getting pinned down on their exact intentions.
The draft is clear, however, about how they seem to feel now: Authored by conservative Justice Samuel Alito, the document thunders that “Roe was egregiously wrong from the start.”
Compare that to Kavanaugh’s reaction when Democratic Sen. Dianne Feinstein of California pressed him: “Have your views on whether Roe is settled precedent or could be overturned, and have your views changed?”
Kavanaugh replied: “Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”
Gorsuch insisted that precedent “has a lot of value,” in response to a question from Senator Feinstein.
He continued to elaborate: “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”
Kavanaugh replied: “Senator, I said that it is settled as a precedent of the Supreme Court.
Kavanaugh famously managed to convince Republican Sen. Susan Collins to support his nomination despite her concerns about the future of abortion protections.
Collins emerged from a two-hour meeting with Kavanaugh to say she’d talked to the nominee “at great length about precedent and the application of stare decisis to abortion cases,” using the legal term for deferring to past precedent.
“We talked about whether he considered Roe to be settled law,” Collins told reporters after the meeting. “He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said that it was settled law,” Collins said. “We had a very good, thorough discussion about that issue.”
Collins went on to vote for Kavanaugh.
But she might have been better advised to listen to Trump himself, who promised on the campaign trail that he’d appoint justices to the Supreme Court who would overturn Roe vs. Wade.
In 2016, Trump said his victory in the election would mean that overturning Roe “will happen, automatically,” because he’d appoint justices who would get the job done.
“I am pro-life, and I will be appointing pro-life judges,” Trump said.
In this case, at least, Trump wasn’t telling one of the tens of thousands of lies he famously racked up during his presidency.
His Supreme Court nominees, however, are apparently another story.
