The Supreme Court nominee will probably be vague on abortion rights. But even vague answers can speak volumes.
Brett Kavanaugh says Roe v. Wade is settled law.
In a meeting last week, he apparently told Sen. Susan Collins (R-ME) that he agreed with Chief Justice John Roberts, who referred to Roe as “settled law” during his 2005 confirmation hearings.
Collins promised that she would vote against any nominee who opposed the 1973 decision that established the constitutional right to an abortion. As one of the few pro-abortion rights members of a Republican caucus with a razor-thin majority in the Senate, she’s a pivotal figure in the confirmation process, and she seemed satisfied with Kavanaugh’s answer. But to reproductive rights advocates, “settled law” is far from reassuring.
In fact, they say it’s one of several dog whistles conservatives have used to signal opposition to abortion rights. Roe is highly popular, and in his confirmation hearings, Kavanaugh is unlikely to answer questions about the landmark abortion decision directly. Instead, advocates say, he’ll use terms that might sound innocuous to average Americans but that let anti-abortion groups know he’s on their side as they fight to overturn Roe. “They know that to achieve their ultimate aims, they have to do it in secret,” Ilyse Hogue, the president of NARAL, told Vox.
“The vast majority of Americans believe in the rights enshrined in Roe,” Hogue said. In a recent poll, 71 percent of American voters said they don’t want to see Roe overturned. Even a majority of Republicans — 52 percent — say the decision should stand. So if Kavanaugh were to say publicly that he opposes Roe, it would put senators in a difficult position — a vote to confirm him would be a vote against an overwhelmingly popular decision. This is especially true for Collins and Sen. Lisa Murkowski (R-AK) — moderate Republicans who have been public about their support for abortion rights, and who are seen as the probable swing votes on Kavanaugh’s confirmation.
As Irin Carmon notes at the Cut, “the judicial nominees of Republican presidents in particular have historically said as little as possible about abortion in their hearings.” Instead, she predicts, “Kavanaugh’s hearings will be full of doublespeak.”
In particular, NARAL and other reproductive rights groups are watching his language for what they say are tacit signals of his true beliefs — signs to the right that he will side with them on the issue of abortion. One of these, they say, is the phrase “settled law.”
“The United States Supreme Court decides what settled law is,” said Steve Kerrigan, the national day of action coordinator for NARAL, in an interview last week. Just because Kavanaugh says something is “settled law,” Kerrigan argues, doesn’t mean he wouldn’t vote to unsettle it.
“A lot of terms like ‘settled law’ or ‘respecting precedent’ are troubling,” Gretchen Borchelt, the vice president for reproductive rights and health at the National Women’s Law Center, told Vox. “They don’t actually tell you his views, and they’re code words for people who want to see that precedent be overruled.”
“He’s not saying he agrees with that settled precedent,” Borchelt said. “He’s just acknowledging that those decisions exist, and that’s really not enough for somebody who’s going to be in the position of being able to change that law.”
Even some abortion opponents say “settled law” doesn’t mean much. Steven Aden, the chief legal officer of the anti-abortion group Americans United for Life, notes that when it comes to Roe, “we don’t know what Judge Kavanaugh said; we know what Sen. Collins said he said.” If he did use the term “settled law,” Aden said, Kavanaugh was “simply stating a truism that the Supreme Court has stated several times that Roe is the precedent that it will go by in determining the existence and scope of the right to abortion.” However, “a future court with a different makeup of justices could unsettle it.”
“Constitution,” “constitutionalist,” “originalist,” and “textualist”
The term “settled law” has gotten a lot of attention due to the Collins meeting, but it’s not the only one reproductive rights activists are watching out for. They say that seemingly anodyne references to the Constitution and its interpretation can also be signals to the right of opposition to abortion.
Many anti-abortion advocates see Roe as a departure from the framers’ original intent in drafting the Constitution. They believe that in arguing for a right to an abortion stemming from a constitutional right to privacy, the justices in the majority in 1973 were engaging in an overly creative interpretation of the law. Because of this, anti-abortion advocates often praise those who adhere to the Constitution “as written,” or who ascribe to “constitutionalist,” “originalist,” “textualist,” or “strict constructionist” points of view.
Abortion rights groups say that terms like “constitutionalist,” “originalist,” and “textualist,” though they sound like broad philosophical ideas, now function as code for opposition to Roe. They point to examples in comments made by anti-abortion advocates.
“What we must look for in a judge is someone committed to the law and the Constitution as written,” wrote Mario Diaz, Esq., on the website of the conservative group Concerned Women for America, in advance of the confirmation hearings for Justice Neil Gorsuch. Of Gorsuch, Diaz wrote, “you can say he is ‘pro-life,’ for he is a constitutionalist.”
In a July podcast, Aden appeared to speak even more explicitly about using discussion of constitutional approaches as a stand-in for questions about Roe. “Because we can’t ask and get answers to the question, ‘Would you overturn Roe,’” he said, “the next best proxy analogue to that is, ‘How true are you to the document, to the Constitution itself?”
“Everyone would say that the Constitution ought to be followed,” he went on, “but only a true originalist, textualist, would say, ‘What matters is what the Constitution said in its original obligation, as the framers of the Constitution intended it.’”
And after the Gorsuch hearings, Travis Weber, vice president for policy at the Family Research Council, told Religion News Service that “we do have a lot of confidence in his judicial philosophy of originalism, and trust he is going to apply that,” noting that an originalist would find “no right to an abortion” in the Constitution. (Weber did express concern that Gorsuch did not explicitly say whether he would overturn Roe.)
Aden told Vox that abortion rights advocates are “missing the point” when they talk about coded language. What he meant in the podcast, he said, was that “the point should be the judicial approach, the judicial philosophy of the candidate” — and he says the entire philosophy is important, not just Kavanaugh’s potential vote on Roe.
“I think what every American should want is a Supreme Court justice who doesn’t want to impose his own subjective values on the text,” he said, “and that’s what I think we have in Judge Kavanaugh.”
Whatever the interpretation, Americans are much more likely to hear talk of originalism or “settled law” during Kavanaugh’s confirmation hearing than they are to hear explicit commentary on reproductive rights. Using vague language has “been proven to work to get on the Supreme Court,” Borchelt said. Chief Justice Roberts called Roe “settled law,” and both Collins and Murkowski voted to confirm him. “Since he joined the Court, he has voted to restrict access to abortion every chance he’s had,” Borchelt said.