Opinion

Why Roe V. Wade Shouldn’t Disqualify Judge Kavanaugh

Getty Images/ Alex Wong and Tim Sloan/AFP

Font Size:

I was recently asked to sign a three-page letter from a group of law professors to Senators Susan Collins and Lisa Murkowski “strongly urging” the senators to vote against Judge Brett Kavanaugh’s confirmation to the Supreme Court because Judge Kavanaugh would allegedly vote to overturn the Court’s 1973 decision in Roe v. Wade that there is a constitutional right to abortion.

The letter is addressed to Senators Collins and Murkowski because Republicans control the Senate by a razor-thin margin, and Collins and Murkowski are Republicans who, as the authors of the letter say, “have long-supported the right to choose.”

I didn’t sign the letter for a variety of reasons. I will mention the three most important: First, it is not as clear as the authors of the letter seem to think that Judge Kavanaugh would vote to overturn Roe. Indeed, the letter itself frequently equivocates about his position on the precedent, asserting, for example, that he “potentially” would provide the “critical fifth vote” for reversing Roe.

Second, if senators start voting against nominees on the basis of how the nominee might vote in a single case, no nominee would ever be confirmed because no one agrees with someone else about everything.

Third (and most importantly, as far as I’m concerned), it’s not at all clear that Roe shouldn’t be overruled.

Note that I didn’t say that Roe should be overruled. I simply said that it isn’t clear that it shouldn’t be.

To make the point another way, Roe is the sort of precedent that Justice Oliver Wendell Holmes Jr. famously called a “hard case.” This is because there is so much uncertainty about when life begins. In fact, in Roe itself, the Court expressly refused to “resolve the difficult question of when life begins,” a position to which the Court has adhered ever since.

The title of Harvard Law School Professor Laurence Tribe’s classic book on abortion, “Abortion: The Clash of Absolutes,” well describes the dilemma, given that abortion directly impacts two fundamental rights: life and liberty.

The law professors’ lengthy letter to Senators Collins and Murkowski says nothing about the life of the unborn child.

If the unborn child is a “life,” then there cannot be a constitutional right to an abortion because — to invoke the political theory on which the Constitution is based—“the fundamental law of nature” is the preservation of life, and “when all cannot be preserved, the safety of the innocent is to be preferred.” There certainly can be no more innocent a life than that of an unborn child.

But if the unborn child is not a “life,” then there must be a constitutional right to an abortion because a woman’s right to “liberty” — to freely direct the course of her life — surely includes the childbearing decision.

Of course, what this means for Judge Kavanaugh is that, if he is confirmed to the nation’s highest court, and a case involving abortion is heard by the Court, he will need to answer the question that Roe expressly refused to answer — namely, the question of when life begins.

Obviously, this is no easy task. But it seems to me that Judge Kavanaugh is smart enough, experienced enough and endowed with the requisite integrity to consider the question with an open mind. He has pledged to do so. Senators Collins and Murkowski should take him at his word and vote to confirm him to the Supreme Court. The rest of the senators should vote to confirm him, too.

Scott Douglas Gerber is Visiting Professor of Political Theory at Brown University and Professor of Law at Ohio Northern University. His ninth book, “The Art of the Law: A Novel,” will be published in October.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

PREMIUM ARTICLE: Subscribe To Keep Reading

Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign Up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
BENEFITS READERS PASS PATRIOTS FOUNDERS
Daily and Breaking Newsletters
Daily Caller Shows
Ad Free Experience
Exclusive Articles
Custom Newsletters
Editor Daily Rundown
Behind The Scenes Coverage
Award Winning Documentaries
Patriot War Room
Patriot Live Chat
Exclusive Events
Gold Membership Card
Tucker Mug

What does Founders Club include?

Tucker Mug and Membership Card
Founders

Readers,

Instead of sucking up to the political and corporate powers that dominate America, The Daily Caller is fighting for you — our readers. We humbly ask you to consider joining us in this fight.

Now that millions of readers are rejecting the increasingly biased and even corrupt corporate media and joining us daily, there are powerful forces lined up to stop us: the old guard of the news media hopes to marginalize us; the big corporate ad agencies want to deprive us of revenue and put us out of business; senators threaten to have our reporters arrested for asking simple questions; the big tech platforms want to limit our ability to communicate with you; and the political party establishments feel threatened by our independence.

We don't complain -- we can't stand complainers -- but we do call it how we see it. We have a fight on our hands, and it's intense. We need your help to smash through the big tech, big media and big government blockade.

We're the insurgent outsiders for a reason: our deep-dive investigations hold the powerful to account. Our original videos undermine their narratives on a daily basis. Even our insistence on having fun infuriates them -- because we won’t bend the knee to political correctness.

One reason we stand apart is because we are not afraid to say we love America. We love her with every fiber of our being, and we think she's worth saving from today’s craziness.

Help us save her.

A second reason we stand out is the sheer number of honest responsible reporters we have helped train. We have trained so many solid reporters that they now hold prominent positions at publications across the political spectrum. Hear a rare reasonable voice at a place like CNN? There’s a good chance they were trained at Daily Caller. Same goes for the numerous Daily Caller alumni dominating the news coverage at outlets such as Fox News, Newsmax, Daily Wire and many others.

Simply put, America needs solid reporters fighting to tell the truth or we will never have honest elections or a fair system. We are working tirelessly to make that happen and we are making a difference.

Since 2010, The Daily Caller has grown immensely. We're in the halls of Congress. We're in the Oval Office. And we're in up to 20 million homes every single month. That's 20 million Americans like you who are impossible to ignore.

We can overcome the forces lined up against all of us. This is an important mission but we can’t do it unless you — the everyday Americans forgotten by the establishment — have our back.

Please consider becoming a Daily Caller Patriot today, and help us keep doing work that holds politicians, corporations and other leaders accountable. Help us thumb our noses at political correctness. Help us train a new generation of news reporters who will actually tell the truth. And help us remind Americans everywhere that there are millions of us who remain clear-eyed about our country's greatness.

In return for membership, Daily Caller Patriots will be able to read The Daily Caller without any of the ads that we have long used to support our mission. We know the ads drive you crazy. They drive us crazy too. But we need revenue to keep the fight going. If you join us, we will cut out the ads for you and put every Lincoln-headed cent we earn into amplifying our voice, training even more solid reporters, and giving you the ad-free experience and lightning fast website you deserve.

Patriots will also be eligible for Patriots Only content, newsletters, chats and live events with our reporters and editors. It's simple: welcome us into your lives, and we'll welcome you into ours.

We can save America together.

Become a Daily Caller Patriot today.

Signature

Neil Patel