The US Supreme Court overturned Roe v. Wade, the 1973 landmark decision that legalized abortion across the country.
Dobbs v. Jackson Women’s Health Organization, the case at the center of the court’s decision, challenged Mississippi’s ban on abortion after 15 weeks
Among the Supreme Court’s 6-3 conservative majority are the three justices appointed by the former president, Donald Trump, all of whose views on abortion rights sparked concerns at the time of their selections. Here is what those justices said during their confirmation hearings about overturning precedents, particularly in relation to Roe v. Wade.
Amy Coney Barrett (sworn in Oct. 27, 2020)
During her confirmation hearings in October 2020, Amy Coney Barrett was asked by Senator Amy Klobuchar, a Minnesota Democrat, about an article she once wrote about “super precedents,” and why she didn’t consider Roe v. Wade to fall under that category.
Barrett said the scholarly definition of a “super precedent” that she was using in her article referred to cases “so well-settled that no political actors and no people seriously push for their overruling.”
“And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category,” Barrett said.
She added a caveat: “Scholars across the spectrum say that doesn’t mean that Roe should be overruled.”
Brett Kavanaugh (sworn in Oct. 8, 2018)
During Justice Brett Kavanaugh’s confirmation hearings in 2018, Senator Dianne Feinstein, a California Democrat, asked whether he believed Roe is “settled precedent.”
”I understand the importance of the precedent set forth in Roe v. Wade,” Kavanaugh said. “Roe v. Wade held, of course, and [SCOTUS] reaffirmed in Planned Parenthood v. Casey, that a woman has a constitutional right to obtain an abortion before viability, subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden on the woman’s right to obtain an abortion.”
In the 1992 Casey decision, justices reaffirmed Roe but created a new standard by which to judge laws restricting abortions — whether those laws imposed an “undue burden” on people seeking abortions. It was a narrow 5-4 decision, written by two of the court’s conservatives, Justices Anthony Kennedy and David Souter, and one of the liberals, Justice Sandra Day O’Connor.
Kavanaugh added that the Supreme Court had reaffirmed Roe “many times.”
”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 prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992,” Kavanaugh told Feinstein in 2018.
“And as you well recall, Senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor, and Justice Souter, at great length went through those factors. That was the question presented in the case.”
That was not always Kavanaugh’s stated opinion. In 2003, when he was a White House counsel and the staff secretary for George W. Bush’s administration, Kavanaugh wrote in an e-mail that the Supreme Court could overturn Roe.
”I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” he wrote.
Neil Gorsuch (sworn in April 10, 2017)
When Neil Gorsuch was questioned about Roe v. Wade during his confirmation hearings in 2017, he appeared to affirm its status as precedent.
“A good judge will consider it as precedent of the United States Supreme Court, worthy of treatment as precedent, like any other,” Gorsuch said at the time, speaking further about the important role precedents play in upholding the US justice system.
“Once a case is settled, it adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue,” Gorsuch said. “We move forward.”
He did, however, dodge Senator Feinstein’s question about whether he considered Roe v. Wade as having “super precedent.”
“It has been reaffirmed many times, I can say that,” Gorsuch said.
When Senator Lindsey Graham, a South Carolina Republican, asked if Trump had asked him to overturn the landmark abortion decision, Gorsuch said no.
“I would have walked out the door” if he had, Gorsuch said. “It’s not what judges do.”