Brett Kavanaugh's Views on Overturning Roe v. Wade Appear to Have Changed

Supreme Court Justice Brett Kavanaugh appeared to signal an openness to overturning the longstanding precedent established in 1973's landmark Roe v. Wade on Wednesday as he questioned counsel.

Kavanaugh cited a number of high-profile Court decisions as the justices heard oral arguments in Dobbs v. Jackson Women's Health Organization and his comments appeared to depart from remarks he reportedly made about Roe during his confirmation process in 2018.

At that time, Kavanaugh told Senator Susan Collins (R-ME) that he agreed with Chief Justice John Roberts that Roe was "settled law" but his line of questioning on Wednesday seemed to point in a different direction.

Dobbs deals with a Mississippi law that effectively bans all abortions after 15 weeks of pregnancy and it could overturn Roe and a subsequent case in which Roe was affirmed—1992's Planned Parenthood v. Casey.

During his questions to Julie Rikelman, the attorney representing the Jackson Women's Health Organization, Kavanaugh probed the issue of overturning precedent and appeared to show a willingness to revisit Roe.

Kavanaugh was discussing the legal principle of stare decisis—meaning where a question of law has already been decided, courts should respect precedent. It is a key issue before the Court in Dobbs, and the justice cited cases where precedent has been overturned.

"If you think about some of the most important cases, the most consequential cases in this Court's history, there's a string of them where the cases overruled precedent," Kavanaugh said.

Kavanaugh cited, among other cases, Brown v. Board of Education, which found that the principle of separate but equal was not constitutional, overturning a previous Supreme Court finding in Plessy v. Ferguson.

He also mentioned Obergefell v. Hodges, which legalized same-sex marriage in the U.S., and Miranda v. Arizona, which led to police notifying criminal suspects of their Miranda rights, among other major decisions.

"In each of those cases—and that's a list, and I could go on, and those are some of
the most consequential and important in the Court's history—the Court overruled
precedent," Kavanaugh said.

Kavanaugh added that if the Court had adhered to precedent in those cases "the
country would be a much different place."

The justice went on to ask Rikelman: "I know you disagree with what about I'm about to say in the 'if'—if we think that the prior precedents are seriously wrong, if that, why then doesn't the history of this Court's practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and—and not stick with those precedents in the same way that all those other cases didn't?"

Kavanaugh's line of questioning represents an apparent departure from his position during his confirmation hearings in 2018. Collins, a Republican who eventually voted to confirm Kavanaugh, had a two-hour courtesy visit with him where she said they discussed abortion cases "at length."

"We talked about whether he considered Roe to be settled law," Collins said at the time. "He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said that it was settled law."

Chief Justice John Roberts had said at this confirmation hearings in 2005 that he considered Roe to be settled law. Roberts was until recently the crucial swing vote on the Court and may seek to bring about a compromise in Dobbs.

Critics of Kavanaugh said at the time that his remarks should not be considered the end of the matter.

Then Senate Minority Leader Chuck Schumer (D-NY) said: "Let's be clear. This is not as simple as Judge Kavanaugh saying that Roe is settled law. Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same thing as saying a case was correctly decided."