Supreme Court Nominee Brett Kavanaugh Once Said Roe v. Wade Is Not Settled Law

Photo: Sarah Silbiger/CQ Roll Call.
Leaked documents published by the New York Times Thursday show President Donald Trump's Supreme Court nominee Brett Kavanaugh once wrote that Roe v. Wade, the landmark 1973 decision that gave women the right to choose an abortion, isn't settled law.
Ever since he was nominated, Kavanaugh's record on abortion rights has troubled advocates, who believe he could reshape reproductive rights in the U.S. to the point of even ruling to overturn Roe and pave the way for abortion to be illegal once again. This is after all one of President Trump's campaign promises: to appoint conservative justices that will help reverse Roe.
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In the 2003 email exchange leaked to the Times, Kavanaugh was giving feedback on the draft of an opinion piece. At the time, President George W. Bush had nominated a conservative to an appeals court seat and his supporters were trying to convince anti-abortion advocates to submit the piece under their bylines.
The opinion piece read in part: "It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land."
Kavanaugh said that line should be deleted and replaced. "I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level," he wrote, "since Court can always overrule its precedent, and three current Justices on the Court would do so."
He didn't say whether he personally believed Roe is settled law, like many of his peers do. By "three current Justices" he was likely referring to the late Justices William Rehnquist and Antonin Scalia, who were then in the bench, and Justice Clarence Thomas. All of them dissented in Planned Parenthood v. Casey, the 1992 case that re-afirmed Roe v. Wade.
During his confirmation hearing, Kavanaugh has referred to Roe as "precedent" and has avoided to answer whether he believes women's have a right to choose an abortion.
There's unprecedented support for people in the U.S. to have access to legal and safe abortion. A Refinery29/CBS News poll found that 69% of women believe Roe v. Wade should remain the law of the land. This figure is consistent for support for Roe at the national level: Nearly 71% of American adults believe the decision should not be overturned, including 52% of Republicans.
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