Like an email scammer, offering to pay Sen. Susan Collins (R-ME) millions if she deposits thousands of dollars in a Nigerian bank, Supreme Court nominee Brett Kavanaugh reassured Collins on Tuesday that she doesn’t need to worry herself about his views on Roe v. Wade.
Collins is nominally pro-choice, and has even claimed that a Supreme Court nominee “who would overturn Roe v. Wade would not be acceptable to me.” Yet, like an Internet ad promising to “Turn Your Computer Into a Money-Making Machine!” Collins’ promise to oppose an anti-Roe nominee is hardly reliable.
But let’s take both Collins and Kavanuagh at their words. That is, let’s assume that it is actually possible for Collins to admit that Judge Kavanuagh is the fifth vote to kill Roe. And let’s also assume that Kavanuagh is telling the truth when he says that he agrees with Chief Justice John Roberts’ take on Roe v. Wade. Where does that leave us?
During his confirmation hearing in 2005, Chief Justice Roberts had a long exchange with Sen. Arlen Specter (R-PA), where Specter probed Roberts’ approach to Roe. During that exchange, Roberts said that “the importance of settled expectations in the application of stare decisis is a very important consideration” (“Stare decisis” refers to the legal principle that courts should follow prior precedents when deciding similar cases.)
Yet Roberts also refused to say how he feels that the principle of stare decisis should apply to specific cases such as Roe, instead laying out several vague principles that should guide judges in deciding whether to overrule precedent. These principles include an inquiry into whether the precedent has “settled expectations,” whether the precedent has proved to be workable, and whether subsequent decisions have eroded the basis for the original decision.
But whenever he’s been given the opportunity to apply his principles to abortion rights, Roberts has swiftly and readily revealed an eagerness to roll back reproductive freedom. Less than two years after Roberts joined the Supreme Court, the Court handed down a 5-4 decision in Gonzales v. Carhart, with Roberts joining the majority opinion. Gonzales upheld a federal ban on so-called “partial birth abortions,” and the Court’s opinion was riddled with language suggesting that the government has broad authority to ban abortions.
Among other things, Gonzales suggested that one reason a state may legitimately choose to restrict abortion rights is that “some women come to regret their choice to abort the infant life they once created and sustained.” It also held that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” a line that invited anti-abortion doctors and researchers to manufacture such “uncertainty” by offering misleading research and testimony suggesting that entirely safe abortion procedures are unsafe.
Notably, the federal law Roberts voted to uphold in Gonzales was very similar to a law the Supreme Court struck down in its 2000 decision Stenberg v. Carhart. The primary difference between Gonzales and Stenberg is that, in the seven years between the two decisions, moderate conservative Justice Sandra Day O’Connor was replaced by hardline conservative Justice Samuel Alito, giving Roberts the fifth vote he needed to reach the result he preferred.
So much for stare decisis.
More recently, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a Texas law shutting down the overwhelming majority of the abortion clinics in that state. In Hellerstedt, Texas required abortion clinics to comply with an array of expensive architectural requirements, while simultaneously requiring abortion doctors to maintain a difficult-to-obtain credential.
Writing for a bare majority of his Court, Justice Stephen Breyer explained that these regulations did little to protect the health of abortion patients, and that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” and therefore are unconstitutional.
Retired Justice Anthony Kennedy, who Kavanuagh hopes to replace, provided the fifth vote to strike down the Texas law. Chief Justice Roberts joined Justice Alito’s dissent.
Nor has Roberts been particularly keen on following precedent outside of the context of abortion. In Citizens United v. FEC, Roberts joined his fellow conservatives to overrule a 20-year-old precedent permitting restrictions on corporate election spending. In Leegin Creative Leather Products v. PSKS, the same bloc of conservative justices overruled a nearly 100-year-old antitrust precedent. Just this past term, in Janus v. AFSCME, Roberts joined a 5-4 decision overruling a 40-year-old precedent protecting union rights.
So, by all means, Senator Collins should take Judge Kavanaugh at his word when he says he will approach precedents like Roe exactly the same way Chief Justice Roberts approaches them. If she does, and if she is true to her own word, she must vote “no” on Kavanaugh.