Newest U.S. Supreme Court justices waver on whether Roe precedent means law guaranteeing abortion rights settled

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Abortion rights advocates holding a picture of Associate Justice Brett Kavanaugh demonstrate in front of the US Supreme Court in Washington on December 1.Jose Luis Magana / The Associated Press

During his confirmation to the Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was “established law”, calling the court cases “confirming precedent at the latest”. which cannot be reversed incidentally.


Amy Connie Barrett told senators during her Senate confirmation hearing that laws cannot be undone by personal beliefs alone, including her own. “It’s not Amy’s law,” she quipped.

But during this week’s historic Supreme Court hearing on Mississippi legislation that cannot completely nullify a woman’s right to an abortion, two new justices struck a markedly different tone, ending decades in the courtroom. Lines of inquiry were drawn, widely seen as part of the will of old decisions on access to abortion services.

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Roe v Wade goes before US Supreme Court as Mississippi abortion case begins

The disconnect is raising new questions about the essence, purpose, and theater of the Senate confirmation process that some people have been horribly broken up with. And it’s creating tough politics for Collins and another Senate Republican who supports abortion rights, Sen. Lisa Murkowski of Alaska, as the nation faces a potential disclosure of the law.

“I support Roe,” Collins said Wednesday as he plunged into the elevator shortly after arguments in court. Maine Republicans voted to confirm Kavanaugh, but opposed Barrett’s nomination, as it drew too close to the 2020 presidential election.

Murkowski declined a hallway interview Thursday at the Capitol and has not provided further public comment. She opposed Kavanaugh and supported Barrett, both nominees most narrowly confirmed in the divided Senate.

The court’s decision on the Mississippi case may not be known until June, but the results of the week’s arguments are reviving concerns that the judicial branch, like other civil institutions in the country, is being deeply politicized, and that Congress The Senate – in particular – should perform better in its constitutional role advising on and giving consent to presidential candidates.

“It’s not that senators are nave and overly trusting,” said Duke University law professor Neil Siegel, who has served as a special counsel for Senate Democrats, of which Joe Biden was senator. That problem is primarily that we are deeply polarized, and the Constitution enrolls and confirms federal judges, including through a political process.”

Confirmation hearings before the Senate Judiciary Committee are case-intensive, after-hours sessions that typically drag on for several days as a senator grills presidential candidates one after another on their approach to legislation.

Kavanaugh’s hearing in 2018 exploded amid surprising allegations that he sexually assaulted Christine Blasey Ford when she was a teenager at a house party decades ago, a claim she vehemently denied.

The abortion debate has been front and center in confirmation hearings, but senators focused as Republican Donald Trump nominated three conservative judges during his presidency, potentially turning the nine-member court away from centrists and liberals.

The long debate over the legal precedent set by the landmark cases of Rowe v. Wade and Planned Parenthood v. Casey suddenly became very real-life questions for American women as Republicans aimed to roll back abortion access. arrived for.

Kavanaugh has repeatedly told senators, under the grilling of Democrats and Republicans, that women’s right to abortion has been reaffirmed.

“The Supreme Court has recognized the right to abortion—reaffirming it multiple times—since the 1973 Roe v. Wade case,” he told Sen. Lindsey Graham, R.C.

Diane Feinstein, D-Calif., Kavanaugh emphasized the “importance of the job” under previous court rulings and referred to 24 weeks of pregnancy as “a woman has a constitutional right to obtain an abortion before viability”. questions under Mississippi law, which would reduce the limit to 15 weeks.

After his assurances during the two-hour meeting, he won over Collins, who is not on the panel.

Yet during this week’s court hearing, Kavanaugh read a long list of court cases that overturned previous precedents and questioned why the court could no longer do the same with abortion.

“If you think about some of the most important cases, the most consequential cases in the history of this court, there is a string of cases where the cases have defied precedent,” he said.

Kavanaugh said during the court hearing that the abortion debate is “difficult” and perhaps the court should throw it up to the states to decide — essentially eliminating federal protections.

The senators said the justices could simply submit a line of questioning, reflecting their own reading of the law, rather than forcing state and federal government attorneys to respond.

But Sen. Amy Klobuchar, D-Min., who had intense exchanges with Kavanaugh and Connie Barrett during the confirmation battle — and voted against both — said what she heard from the court was about her expectation. Was.

“I’m not a little surprised,” said Klobuchar.

Barrett had told senators that Roe v. Wade does not fall under the category of a “super precedent”, which legal scholars have described as cases that are so settled that there is no call to see them again.

Yet as an Orthodox Christian, he insisted that one’s own views did not play a role. “It’s not Amy’s law,” she told the senators. “It is the law of the American people.”

This week, Barrett pressed lawyers to explain why women can’t give up children for adoption now that states have safe haven laws in place. “Why haven’t you addressed the safe haven laws and why they don’t matter?”

When asked about the disconnect between the Senate hearings and the court’s arguments, Sen. Richard Durbin, D-Ill., and now chairman of the Judiciary Committee, acknowledged that the hearing has its limits, but that the trial will continue until the court issues its decision. Didn’t, till then avoided the decision.

Perhaps not since Ruth Bader Ginsburg told senators during her confirmation hearing in 1993 that the decision to have a child is “central to a woman’s right, her dignity” on her views as the nominee. Is. It is now the criterion for the nominees to keep their views close.

“We can’t ask for an affidavit,” Durbin said. “I believe individuals and their life experience are more predictive of the outcome of future affairs than they do to a committee.”

Texas Republican Sen. John Cornyn, a former judge, brushed off the distinction between what he said at the committee hearings as a fact of life in politics.

“I’ve seen a lot of confirmation conversions, where people basically disapprove of things they’ve done and said in the past to confirm, but once we’ve got a confirmation, basically There’s nothing we can do about it,” said Cornyn, who voted to confirm both Kavanaugh and Barrett.

“I don’t think they’re a sham,” he said. “I think there are useful discussions, but obviously there are no results associated with voting that differ from what you said at the hearing.”

Our Morning Update and Evening Update newsletters are written by Granthshala editors, giving you a brief summary of the day’s most important headlines. ,


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