What Republican-appointed Supreme Court Justices Have Said About Roe v. Wade

Washington – A draft opinion leaked and published late Monday suggests the Supreme Court could overturn its nearly five-decade ruling establishing the constitutional right to abortion, a move that, if final, would be a watershed in rights advocates’ decades-long struggle against the law. abortion to nullify the historic decision Roe v. Wade.

This ruling in the case involving a Mississippi Abortion Act it would come from a Supreme Court that, thanks to three appointments by former President Donald Trump, boasts a conservative majority of 6-3. The draft opinion obtained and published by Politico was written by Judge Samuel Alito, and it is not clear if and which judges would join him.

While the Supreme Court confirmed the authenticity of the document, stressed that it “does not represent a court decision or the final position of any member on the issues at stake”.

But the emergence of the draft opinion prompted scrutiny – and in some cases fierce criticism – of the conservative wing of the Supreme Court, and in particular judges Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three were contacted for the Supreme Court by Trump and, during confirmation hearings, answered multiple questions from Democratic skeptics about their views on Roe v. Wade and whether they would vote to overturn the decision.

Here’s what the judges appointed by the Republican presidents said about the Supreme Court’s abortion decisions:

Chief Justice of the Supreme Court John Roberts

Supreme Court Chief Candidate John Roberts speaks during the third day of his confirmation hearings on Capitol Hill in Washington, DC on September 14, 2005.

Chuck Kennedy / MCT / Tribune news service via Getty Images

During his confirmation hearing before the Senate Judiciary Committee in 2005, Roberts spoke about the 1992 Planned Parenthood v. Casey, who reaffirmed Roe’s central position and said states cannot place an undue burden on the right to abortion before fetal viability.

“One way of looking at it is that the very decision Casey, who applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the court, empowered to respect under the principles of stare decisis,” he said. at the time. “And that would be the body of law that any judge dealing with a matter under his care would begin, not simply the decision in Roe v. Wade, but its reaffirmation in the Casey decision.”

Roberts reiterated his commitment to the doctrine of stare decisis, or fidelity to the precedent, in a 2020 opinion, in which he joined four liberal judges in breaking down a Louisiana measure which required doctors who perform abortions to have admission privileges to nearby hospitals.

The legal doctrine of stare decisis requires us, in the absence of special circumstances, to treat similar cases in the same way. Louisiana law places as severe a burden on access to abortion as Texas law does, for the same reasons. Therefore Louisiana law cannot stand up to our precedents, “she wrote.

justice Clarence Thomas

On April 23, 2021, Judge Clarence Thomas sits during a group photo of the judges at the Supreme Court in Washington, DC.

ERIN SCHAFF / POOL / AFP via Getty Images

Thomas was not shy about his views on past Supreme Court decisions on abortion and during oral arguments in the Mississippi courtroom brawl, which includes a law banning abortion after 15 weeks, he noted that the right to an abortion abortion does not explicitly appear in the Constitution.

“I understand we’re talking about abortion here, but what’s confusing is that if we’re talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about.” I’m talking because it’s written. It’s there, “he said.” What specifically is the law here we’re talking about? “

Thomas went further in a dissenting opinion on the Supreme Court decision on the Louisiana abortion law.

Past court decisions on abortion, he wrote, “have created the right to abortion without an iota of support from the text of the Constitution. Our records of abortion are grossly wrong and should be nullified.”

judge Samuel Alito

The judicial commission of the Senate concludes the hearings for the appointment of Alito
Supreme Court nominee Judge Samuel Alito leaves the courtroom after concluding his attendance at the confirmatory hearings at the Capitol on January 12, 2006 in Washington, DC

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During his 2006 confirmation hearing before the Judiciary Committee, Alito called Roe an “important precedent of the Supreme Court” that had been reaffirmed but repeatedly challenged at all levels of the courts.

“The Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think when a decision is challenged and reaffirmed it reinforces its value of stare decisis,” he said.

Judge Neil Gorsuch

Neil Gorsuch confirmation hearings for the United States Supreme Court Associate Justice.
Supreme Court candidate Neil Gorsuch testified on the third day of his confirmatory hearings before the Senate Judicial Commission on March 22, 2017.

Ricky Carioti / The Washington Post via Getty Images

Gorsuch’s comments to the judiciary during his confirmation hearing in 2017 echoed those of Alito. He then told senators that “all the precedents of the United States Supreme Court deserve the respect of the precedent, which is quite a lot. It is the anchor of law. It is the starting point for a judge.”

Speaking of Roe, Gorsuch said, “The addiction interest considerations are important there, and all the other factors that go into analyzing the precedents must be considered. It is a precedent of the United States Supreme Court. It was reaffirmed to Casey. in 1992 and in many other cases. So a good judge will regard it as a precedent of the Supreme Court of the United States worthy of treatment of the precedent like any other. “

Judge Brett Kavanaugh

Dr. Christine Blasey Ford and Supreme Court Nominee Brett Kavanaugh Testify on Senate Judiciary Committee
Judge Brett Kavanaugh testifies before the Senate Judiciary Committee during his Supreme Court confirmation hearing on Capitol Hill on September 27, 2018.

JIM BOURG / Getty Images

Appointed to replace Judge Anthony Kennedy, given the favorable vote of the Supreme Court, the future of Roe v. Wade was a key issue during Kavanaugh’s confirmation hearings.

He told the judicial commission that Roe is “credited as a precedent” who is “entitled to respect according to the principles of stare decisis.”

“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most importantly, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992,” he said. “I know that when that case came up, the Supreme Court didn’t just reassert it in passing. The court specifically looked into all the factors of stare decisis in considering whether to quash it and the joint opinion of Judge Kennedy, Judge O’Connor, and Judge Souter have analyzed these factors at length. “

Kavanaugh’s views on Roe were crucial in gaining the support of Senator Susan Collins of Maine, a Republican who advocates for abortion rights. When Collins announced her support for Kavanaugh’s appointment in 2018, she said he is the “first Supreme Court candidate to express the view that the precedent is not just a practice and a tradition, but is rooted in Article III. of our own Constitution “.

“He believes the precedent ‘is not just a judicial policy … it is constitutionally required to pay attention and pay attention to the rules of precedents,'” he said in the Senate almost four years ago. “In other words, the precedent is not a goal or an aspiration; it is a constitutional principle that must be followed except in the most extraordinary circumstances.”

But following the Politico report which indicated that Kavanaugh and Gorsuch had voted to overthrow Roe, Collins said that if the draft opinion is the final decision and the reporting is accurate, “it would be completely inconsistent with what Judge Gorsuch and the judge. Kavanaugh said in their hearings and in our meetings in my office. “

Justice Amy Coney Barrett

Senate holds confirmation hearing for Amy Coney Barrett as Supreme Court Justice
Supreme Court-appointed Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmatory hearings on Capitol Hill on October 14, 2020.

/ Getty Images

Barrett, like other judges before her, refused to take a position that Roe had been decided correctly, but referred to the concept of “super precedents”, which she defined as “cases so well resolved that no political actor and no person seriously push for their overcoming “.

Barrett told the judicial commission that questions he was addressing about Roe indicate the decision “does not fall into that category” of super-precedents, and noted that scholars “across the spectrum say that doesn’t mean Roe should be overruled. , but descriptively it means that it is not a coincidence that everyone has accepted “.

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