Brett Kavanaugh wants to do away with legal abortion. He told us so.

Brett Kavanaugh wants to do away with legal abortion. He told us so.,

Brett Kavanaugh testifies before the Senate Judiciary Committee on Sept. 6. (Photo: Alex Brandon/AP)

wrote Buckwalter-Poza, who obtained her law degree from Yale and provides legal analysis to the Daily Kos, a liberal political site. “If Kavanaugh’s confirmed, states will have free rein to eliminate abortion access via increasingly draconian laws.”’ data-reactid=”26″>Buckwalter-Poza, who successfully sued President Trump for blocking Twitter users, seized on this exchange, which she identified as key to Kavanaugh’s strategically unclear views on reproductive rights. “Contra Kavanaugh’s claim he can’t offer any hints or forecasts, his fondness for bringing up Casey does just that,” wrote Buckwalter-Poza, who obtained her law degree from Yale and provides legal analysis to the Daily Kos, a liberal political site. “If Kavanaugh’s confirmed, states will have free rein to eliminate abortion access via increasingly draconian laws.”

has praised as “stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”’ data-reactid=”40″>In his testimony, Kavanaugh said that Casey “reaffirmed” Roe v. Wade. In the narrowest sense, that is true: A Supreme Court stocked with Nixon and Reagan appointees could have overturned Roe, but didn’t. Among those who did want to overturn Roe, and who dissented from the pro-Roe portion of Casey, was William Rehnquist, the conservative chief justice whom Kavanaugh has praised as “stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”

Demonstrators gathered outside the Supreme Court in April 1992 as the court heard arguments over a restrictive Pennsylvania abortion statute. (Photo: Greg Gibson/AP)‘ data-reactid=”51″>

Demonstrators gathered outside the Supreme Court in April 1992 as the court heard arguments over a restrictive Pennsylvania abortion statute. (Photo: Greg Gibson/AP)

openly expect Kavanaugh to curtail abortion rights, even as his opponents continue to make their case against him.’ data-reactid=”56″>The deferral to states’ rights, not the upholding of Roe, makes Casey attractive to conservative jurists like Kavanaugh. References to the case, of the kind the nominee made last week in front of the Senate Judiciary Committee, are widely seen as a kind of coded assurance to conservative supporters. Those supporters openly expect Kavanaugh to curtail abortion rights, even as his opponents continue to make their case against him.

29 percent of Americans want abortion made illegal. At issue is not whether Kavanaugh holds that belief, but whether he has stated his beliefs honestly and completely. He — and his detractors — are acutely aware that in order to gain confirmation from the full Senate, he must win over two pro-abortion-rights Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska. And although he has assured both that Roe is “settled law,” his views on Casey call into question the candor of such assurances.’ data-reactid=”59″>Those beliefs are not outside the American mainstream: 29 percent of Americans want abortion made illegal. At issue is not whether Kavanaugh holds that belief, but whether he has stated his beliefs honestly and completely. He — and his detractors — are acutely aware that in order to gain confirmation from the full Senate, he must win over two pro-abortion-rights Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska. And although he has assured both that Roe is “settled law,” his views on Casey call into question the candor of such assurances.

“Kavanaugh’s views on Casey are critically important because they could pave the way for him to curtail access to abortion without explicitly overturning Roe,” says Nan Aron of Alliance for Justice, a nonprofit that advocates for a liberal judiciary. “His record shows that he has an expansive interpretation of precedents, like Casey, that allow states to restrict abortions in many ways as long as they stop short of an ‘undue burden.’”

Garza v. Hargan, the case of the Texas teenager. Kavanaugh was the only member of a three-justice D.C. Circuit Court panel to argue against granting the 17-year-old immigrant in question access to abortion. He described her as seeking an “abortion on demand,” an intentionally incendiary phrase deployed by anti-abortion groups. More importantly, he ruled that the young woman be ordered to find an immigration sponsor, an imposition beyond all the requirements she had already met. Kavanaugh said it was his duty to “apply the precedents and principles articulated in Supreme Court decisions.”’ data-reactid=”72″>An indication of how Kavanaugh could use Casey to smother Roe is evident in his dissent in Garza v. Hargan, the case of the Texas teenager. Kavanaugh was the only member of a three-justice D.C. Circuit Court panel to argue against granting the 17-year-old immigrant in question access to abortion. He described her as seeking an “abortion on demand,” an intentionally incendiary phrase deployed by anti-abortion groups. More importantly, he ruled that the young woman be ordered to find an immigration sponsor, an imposition beyond all the requirements she had already met. Kavanaugh said it was his duty to “apply the precedents and principles articulated in Supreme Court decisions.”

His argument was obviously intended to placate anti-abortion groups who were then preparing to recommend a replacement for Anthony Kennedy, who was rumored to be on the cusp of retiring. The majority on the court easily dispensed with Kavanaugh’s meager reasoning, noting that having the young woman spend weeks searching for an immigration sponsor was the very definition of an “undue burden.”

But if he were to join the Supreme Court, Kavanaugh would become part of a five-justice conservative majority that shares his views on Casey. Those convictions were most recently made clear in dissents by Samuel Alito (appointed by George W. Bush) and Clarence Thomas (a George H.W. Bush nominee) in Whole Woman’s Health v. Hellerstedt, a 2016 involving new restrictions on abortion access Texas was seeking to impose. Thomas, in particular, returned to Casey as a standard from which the Supreme Court had deviated by preventing Texas from instituting new burdens on receiving an abortion.

Neil Gorsuch, Trump’s first Supreme Court appointee, had not yet been seated at the time of the Whole Woman’s Health decision, and his precise views on abortion are not entirely certain. However, he is widely expected to to share in the conservative interpretation of Casey, which sees the decision as allowing new burdens, as long as justification for those burdens can be provided.

wrote in an op-ed for the conservative outlet LifeSiteNews, “Precedents don’t last forever. Precedents can be wrong.” He predicted that with Kavanaugh on the court, Roe would “go the way of other discarded lies,” such as racial segregation.’ data-reactid=”88″>On this, anti-abortion activists agree. One of them, the Rev. Frank Pavone, wrote in an op-ed for the conservative outlet LifeSiteNews, “Precedents don’t last forever. Precedents can be wrong.” He predicted that with Kavanaugh on the court, Roe would “go the way of other discarded lies,” such as racial segregation.

The irony of the Kavanaugh hearings is that, despite his incessant evasions, his views are remarkably clear. There is “no question of how he would vote on abortion,” says Amanda Thayer, a spokesperson for NARAL Pro-Choice America. On this, she and Pavone might agree, even if they agree on little else. The question now is whether Kavanaugh will get the chance.

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