Five U.S. Supreme Court justices reportedly voted initially after oral arguments in December to overturn the landmark cases Roe v. Wade and Planned Parenthood v. Casey. That news comes on the heels of a leaked draft majority opinion that dispenses with the constitutional right to an abortion altogether.
Although the high court said Tuesday that the draft opinion is not the “final position of any members on the issues in the case,” the news has shaken the legal community to its core and produced a heavy torrent of outrage and recriminations on social media.
While many abortion rights advocates have responded to the leak with calls to action, others describe a situation at once too little and too late or a sort of fait accompli from the still-simmering outcome of the 2016 presidential election—which allowed Donald Trump to nominate Gorsuch, Kavanaugh, and Barrett.
At the same time, some high-profile elected officials, from both major parties, have said the draft opinion evidences that certain justices either lied or misled senators during their confirmation hearings. Here’s how the five reported votes to overturn Roe and Casey discussed abortion rights precedents during their vetting before the U.S. Senate.
Justice Samuel Alito circulated the lengthy first draft of the opinion that aims to overturn decades of law and precedent on abortion access. But the conservative justice was singing a markedly different tune during his confirmation hearings in January 2006.
“Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman’s right to an abortion, do you agree with that statement today, Judge Alito?” then-Pennsylvania senator Arlen Specter asked the then-judge.
Alito responded that he made the 1985 anti-abortion statement from the “vantage point” of a “line attorney” working for the Reagan administration’s Department of Justice–framing it as a “correct” formulation of the administration’s policy at the time.
“Today if the issue were to come before me,” Alito continued, “The first question would be the question that we’ve been discussing and that’s the issue of stare decisis. And if the analysis were to get beyond that point, I would approach that question with an open mind.”
Pressed further by Sen. Dick Durbin (D-Ill.) on his commitment to the idea of Roe as “settled law.”
Alito responded at length:
Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So, it’s been on the books for a long time. It has been challenged in a number of occasions. And I discussed those yesterday. And the Supreme Court has reaffirmed the decision–sometimes on the merits; sometimes, in Casey, based on stare decisis. And I believe when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis. For at least two reasons…
Justice Clarence Thomas was also asked about his thoughts on Roe during his confirmation hearings in September 1991–specifically because it was decided while he was a student at Yale Law School.
Responding to Sen. Patrick Leahy (D-Vt.), Thomas said: “The case that I remember being discussed most during law school was Griswold. But I did not spend a lot of time debating all the current cases.”
Incredulous, Leahy asked: “I am sure you are not suggesting that there wasn’t any discussion at any time of Roe v. Wade?”
Thomas replied again: “Senator, I cannot remember personally engaging in those discussions.”
When questioned by then-senator Joe Biden about whether the 14th Amendment contains a right to privacy, Thomas answered in the affirmative. Biden then asked if that right could be extended to provide a right for a woman to have an abortion if she so chooses.
To which Thomas replied: “I think that the Supreme Court has made clear that the issue of marital privacy is protected, that the state cannot infringe on that without a compelling interest, and the Supreme Court, of course, in the case of Roe v. Wade has found as a fundamental interest a woman’s right to terminate a pregnancy.”
Justice Neil Gorsuch offered similar verbiage when asked by Durbin about Roe during his confirmation hearings in March 2017.
The tactic used by the Illinois senator this time around was to ask Gorsuch to explain a passage from a book he wrote on euthanasia that reads: “the intentional taking of human life by private persons is always wrong.”
“How could you square that statement with legal abortion?” Durbin asked.
“Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment,” Gorsuch replied.
“Do you accept that?” Durbin pressed.
“That’s the law of the land,” Gorsuch answered. “I accept the law of the land, senator, yes.”
During another exchange with then-senator Al Franken, Gorsuch described Casey, the 1992 case that upheld Roe, as “settled law.”
“It is absolutely settled law,” he told the since-retired Minnesota senator. “Senator, Casey is settled law in the sense that it is a decision of the U.S. Supreme Court.”
During Justice Brett Kavanaugh’s September 2018 confirmation hearings, he described Roe in various ways including as “precedent on precedent” and “important precedent,” adding that the circumstances in which the justices overturn longstanding precedent should be “rare.”
Under intense questioning by Sen. Dianne Feinstein (D-Calif.), Kavanaugh said Roe was “settled as a precedent of the Supreme Court” and that it is “entitled the respect under principles of stare decisis.” He also said that “as a judge” he would respect the Roe precedent.
“And 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,” he continued. “When that came up, the Supreme Court didn’t reaffirm it in passing.”
Kavanaugh went on to explain that Casey very carefully and explicitly reaffirmed Roe under the plurality opinion by then-Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter.
Justice Amy Coney Barrett, the newest seated member of the nation’s high court, was also repeatedly grilled on how she might vote in abortion rights cases during her October 2020 confirmation hearings.
Once again, Roe took center stage. For her part, Barrett offered perhaps the most honest answers about her legal views out of any of the reported five votes who are said to be in favor of overturning Roe.
Sen. Amy Klobuchar (DFL-Minn.) referenced a law review article in which Barrett made a distinction between precedent and “super-precedents” in the context of stare decisis. This same article was later noted by Sen. Josh Hawley (R-Mo.) as reason to believe that Barrett would vote to overturn Roe.
Klobuchar asked the eventual justice why she didn’t think Roe was a super-precedent.
Barrett replied that the term: “define[s] cases that are 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 in that category.”
Alito’s draft opinion directly endorsed this reasoning:
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
Thus, Alito wrote, “It is time to heed the Constitution and return the issue of abortion to the people’s selected representatives.”
[image via Jonathan Ernst-Pool/Getty Images]
Have a tip we should know? [email protected]