Roe V. Wade WILL Survive Brett Kavanaugh

In an open letter to the dean of the Yale Law School, numerous alumni and a few faculty of that august institution declare that the nomination of Judge Brett Kavanaugh as a justice of the Supreme Court “presents an emergency — for democratic life, for our safety and freedom, for the future of our country.”

Really? That would be a lot of damage for one man to do. But my email inbox has been filled with similar protestations.

One of my senators, Jeff Merkley, reports that Kavanaugh “was on the hand-picked list put together by right-wing activists who want to overturn Roe v. Wade, marriage equality, coverage for preexisting conditions and more.”

Oregon Congressman Earl Blumenauer writes of Judge Kavanaugh: “Put simply:  He’s awful.”

Blumenauer goes on to assure me that I am “right to fear for Roe v. Wade, for marriage equality, and so many other rights that will come under attack.”

Senator Chris Murphy has reached all the way across the continent from Connecticut to warn me that “health care, reproductive rights, voting rights and workers’ rights are all on the line.” All three, by the way, have asked for money.

President Obama’s permanent campaign organization, Organizing for Action, emailed with Kavanaugh’s name highlighted in red, as in CODE RED.

The national Democratic Party emailed that “a vote to confirm Brett Kavanaugh is a vote to overturn Roe v. Wade and gut the Affordable Care Act.”

Another email from the Democratic Party advised that I “better believe that with Brett Kavanaugh on the bench, Roe v. Wade, affordable health care, labor unions and civil rights will all be on the chopping block.” Oh, and all of them asked for money as well.

I suspect that this barrage of doomsday declarations will scare many people into helping fill Democrat coffers. But the overturning of Roe v. Wade, with or without a Justice Kavanaugh, is about as likely as the United States winning the 2018 World Cup. (FYI — the U.S. didn’t qualify.)

Roe was widely criticized at the time, including by then-professor Ruth Bader Ginsburg who thought the case should have been resolved under the equal protection clause rather than a “penumbral” right to privacy. But it has been the law for 45 years. Because Justice Blackman, who authored the majority opinion in Roe, devised a framework of increasing state interest (and therefore diminishing private right) over the trimesters of pregnancy, several states have since sought to regulate abortion.

But while some of those regulations have been upheld by a divided court, the basic right recognized in Roe has survived now two generations.

Kavanaugh said in his comments after being introduced by President Trump that he believes strongly in precedent. His track record as a judge provides no reason to doubt him. But as we saw in the Court’s recent overruling of Korematsu v. United States (the World War II Japanese internment case), longstanding precedents are sometimes overturned. Both proponents and opponents of overturning Roe point out that Plessy v. Ferguson was the law for 58 years before it was overturned in Brown v. Board of Education.

What if the conservatives on the court view Roe as equally in need of correction, even all these years later? And the conservatives have just this term demonstrated their willingness to overturn precedent by overruling in Janus v. AFSCME the 40-year-old Abood v. Detroit Board of Education decision that allowed for mandatory public union agency fees.

But Roe is different. Korematsu had long since been dismissed as a travesty. Brown was based on the demonstrable impossibility of Plessy’s separate but equal theory, and Janus on the mistaken conclusion in Abood that it is possible to separate political from non-political public union expenditures. There were no such mistakes of fact in Roe.

An overruling of Roe would have implications far beyond abortion.

Roe is founded on the right of privacy first recognized in Griswold v. Connecticut (recognizing a right to use contraceptives). The right to privacy has since been the basis for the invalidation of anti-sodomy laws and for the recognition of a right to same-sex marriage.

While it is perhaps likely that Justice Thomas (who, in a 1998 op-ed, argued for overruling a 1798 ruling) would vote to overrule Roe, it is very unlikely that four other members of the court would agree in light of the disruption that would result. In particular, the Chief Justice, who has special concerns for the reputation and authority of the Supreme Court, would insist, as Justices O’Connor, Kennedy and Souter did in the 1992 case of Planned Parenthood v. Casey, that widespread reliance on Roe weighs heavily against overruling it.

With the passage of another 26 years, I suspect a Justice Kavanaugh would agree. Respecting such expectations, after all, is the core reason for adhering to precedent.

No doubt many others received the apocalyptic emails predicting Judge Kavanaugh’s confirmation will lead to the suppression of all our rights. They would do well to recognize that while there is always an emergency when it comes to raising political donations, Roe v. Wade and our republic will almost surely survive the confirmation of Brett Kavanaugh.