Monday, September 10, 2018

Kavanaugh provided the legal basis for his vote against Roe v. Wade

Will Kavanaugh overturn Roe v. Wade? Judd Legum in this morning’s email provides an answer. Chances are you will not like it. Stick with me on this - we start with the legal status.

Some of the rights in the Constitution are “enumerated.” That means they are written right in the text. The First Amendment, for example, enumerates “freedom of speech” as a right.

Over time, however, the Supreme Court has recognized some “unenumerated” rights. These are rights that aren’t explicitly mentioned in the text of the Constitution, but the court has ruled are there by implication. Unenumerated rights recognized by the Supreme Court include the right to travel, the right to privacy, and the right to contraception.

The right to an abortion, established by Roe v. Wade, is another unenumerated right based on the right to privacy.

The key question is: When should the court recognize an unenumerated right? In answering the question, Kavanaugh blew his cover.

Glucksberg was a Supreme Court case decided in 1997 where the court found that there was no unenumerated right to physician-assisted suicide because such a right was not “rooted in history and tradition.”

Kavanaugh was very clear that this is the test he would apply to all unenumerated rights, which include the right to abortion.

“[A]ll roads lead to the Glucksberg test,” Kavanaugh added.

To understand the significance of what Kavanaugh said to Cruz last week about Glucksberg, look to Kavanaugh’s 2017 speech at the American Enterprise Institute. In the speech, Kavanaugh said unequivocally that abortion would not qualify as a Constitutional right under the Glucksberg test.

Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973 — as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

In 2018, Kavanaugh said he would apply the Glucksberg test to Roe and other more recent cases affirming the Constitutional right to abortion. In 2017, Kavanaugh said Roe would fail the Glucksberg test.

He does not view it to be a close call. Kavanaugh says that “even a first-year law student” would understand that the Glucksberg test would invalidate Roe.

Putting it all together

  1. Abortion is an “unenumerated” constitutional right.

  2. Kavanaugh testified that all “unenumerated” rights should be subjected to the Glucksberg test.

  3. Just last year, Kavanaugh said that Roe and other recent cases establishing a right to abortion would fail the Glucksberg test.

On Twitter, Columbia law professor Jamal Greene agreed that, by embracing Glucksberg and pretending it was the court’s standard moving forward, Kavanaugh was signaling he would overturn Roe.

What Kavanaugh is describing is a radical new vision that threatens not only abortion rights but also other unenumerated rights that are not based on history and tradition.

So what can we do to derail this attack on Roe and other unenumerated rights? Legum counsels working the votes by those senators that are nominally undecided - Colllins and Murkowski come to mind.

Counting to 50

For Kavanaugh to be confirmed, he needs 50 votes. (Vice President Mike Pence would break the tie.)

The Republicans control 51 seats in the Senate. No Democrats have announced their support for Kavanaugh. If Collins and Murkowski oppose the nomination and Democrats hold firm, there will not be enough votes to confirm him to the Supreme Court.

The media has largely accepted the narrative that Kavanaugh has it in the bag. While Kavanaugh’s confirmation is the most likely outcome, this narrative was constructed by Republicans to demoralize the opposition to his nomination.

The hearings have concluded, but both Collins and Murkowski remain officially undecided.

They say they will not vote for a nominee that is hostile to Roe. Kavanaugh’s comments on Glucksberg make it crystal clear where he stands on the issue. While cynicism is comforting, there is still time to try to convince Collins and Murkowski to stand by their words.

As Jared Kuschner said in another context, get “on it”!

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