What's at Stake If Brett Kavanaugh Ascends to the Supreme Court - Pacific Standard

What's at Stake If Brett Kavanaugh Ascends to the Supreme Court

It's about Roe v. Wade, as well as the myriad protections supporters say flow from the 1973 Supreme Court decision.
Author:
Publish date:
Supreme Court nominee Judge Brett Kavanaugh appears before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill on September 4th, 2018, in Washington, D.C.

Supreme Court nominee Judge Brett Kavanaugh appears before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill on September 4th, 2018, in Washington, D.C.

The Senate hearing to approve a new judge to the Supreme Court got off to a chaotic start on Tuesday morning. Protesters—sitting in seats reserved for the public—kept interrupting proceedings, while Democratic members of Congress called for a halt to the hearing, saying they needed more time to consider the nominee, District Judge Brett Kavanaugh. (The lawmakers' effort failed.)

One central issue for both public protesters and Democrats is how Kavanaugh will rule on Americans' right to obtain an abortion. Some protesters held signs saying so, while others dressed as characters from the dystopian television series The Handmaid's Tale, handing out a statement that said they feared Kavanaugh would "end abortion care as we know it in America." In her opening speech, Senator Dianne Feinstein (D-Washington) spoke about seeing the fates of women who obtained abortions before it was legal nationwide. The statistics, she said, were "horrendous."

Pacific Standard has reported extensively on what Kavanaugh's appointment to the Supreme Court would mean for Roe v. Wade, the 1973 Supreme Court decision that ensured Americans' legal right to abortion, as well as other health and privacy rights, for which some experts argue Roe v. Wade acts as a precedent. Get caught up on the key takeaways below.

1. Kavanaugh Is Widely Expected to Work Against Roe

Kavanaugh has reportedly reassured Senator Susan Collins (R-Maine), a Republican who supports abortion rights, that he sees Roe v. Wade as "settled law," which some have taken to suggest he would not push to overturn it. However, the Supreme Court experts I contacted—some of whom supported and some of whom opposed the Roe decision—expected that Kavanaugh would vote in a way that would roll back federally protected abortion rights. Kavanaugh was one of several then-frontrunners for the Supreme Court seat who has "a history of commitment to textualism, to the original text of the Constitution," Mat Staver, founder of the pro-life legal non-profit Liberty Counsel, told me in July. "I think anybody who has committed to originalism, when they come to an issue such as abortion or same-sex marriage, will conclude that it is not supported in the Constitution." Staver expected that a textualist would return the question of abortion rights to the states.

2. If Abortion Rights Go Back to the States, It'll Create a Patchwork of Laws, With Some States Protecting Access and Others Restricting It

Check out our map, below, of what laws go into effect if Roe v. Wade is overturned.

3. Reversing Abortion Protections Could Affect Other Health Privacy Rights Too

Pro-choice legal scholars argue that Roe v. Wade is not only important to people seeking abortions, but to a variety of other health and privacy rights, especially during pregnancy. "Women are already arrested for being pregnant and engaging in some conduct allegedly risky to a fetus and for pregnancy losses," Dorothy Roberts, a family law professor at the University of Pennsylvania, said. "So certainly if Roe is overturned, those [arrests] would only increase because it would give prosecutors more leeway, more legal leeway, to make pregnancy a crime."

The stakes help explain why Kavanaugh's hearing has been so contentious. As I'm writing this, it's been six hours since the hearing began and Kavanaugh hasn't even yet had a chance to talk—his time has been so far pushed back by objections from the public and senators.

Related