Trump’s Nomination of Brett Kavanaugh to the Supreme Court: Is this the end of Abortion Rights and Same Sex Marriage?

By Alon Harnoy, Esq. and Maxine Wiesenfeld, Intern

On July 9, 2018, President Donald Trump announced his nominee selection for the vacant seat in the Supreme Court, which recently became open following Justice Anthony Kennedy’s announcement that he would be stepping down. His nominee, Brett Kavanaugh, Yale College and Yale Law School graduate. He was an aide to President George W. Bush, is a Federal Appeals Judge and has worked with various legal groups.

Following this appointment, a lengthy process must take place to confirm his place on the bench. Kavanaugh will need to go through an interview-like confirmation process with the Senate Judiciary Committee. The Committee then votes on whether to put him through to the Senate and the Senate will then vote on his appointment.  If there is a majority vote in the Senate, he will then be approved and appointed. This process, however, does not happen overnight. It can take weeks and even months for a nominee to go through the steps to becoming an officially appointed Justice, and sometimes they are not approved in which case the President then has to put forth a new nominee.

The big question that many in the Country are asking has to do with Kavanaugh’s political affiliations and how this will have an effect on the Supreme Court decisions that would be put out. Brett Kavanaugh is known to be a strong conservative, as one can see through his past work and writings. The worry of many is that he may shift opinions of the Supreme Court to be more conservative and possibly infringe on rights that have already been granted in the past. Some of the main concerns that people fear is the possibility of limiting abortion rights, and overturning Roe v. Wade, or otherwise limiting the decision of Obergefell v. Hodges, which recognizes the marriages of same sex couples, among similar concerns.

The next question that one may ask is whether Kavanaugh will be confirmed by the Senate, and if so, whether it would be before or after the upcoming midterm Congressional elections.  Recall that after the sudden death of the famously conservative Supreme Court Justice Anton Scalia during President Obama’s second term, Republican Senate Majority Leader Mitch McConnell blocked former President Obama’s Supreme Court nomination of Merrick Garland.  Ultimately Garland was not appointed during Obama’s term, and President Trump instead chose Gorsuch as his nominee, a selection which was eventually confirmed.

Whether and when Kavanaugh will be appointed, while we are seeing much fear among Americans, there are indicators that this should not be too much of a worry.

In terms of legal doctrine, it is important to look at the legal issue of “stare decisis”. Stare decisis is Latin for “to stand by things decided.”  Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines.

Sometimes, however, a landmark Supreme Court case does not follow precedent. Sometimes, this is a good thing, for example, Brown v. Board of Education overturning the ruling in Plessy v. Ferguson. Plessy v. Ferguson ruled that having a separate education system for blacks and whites was constitutional, as long as they were receiving the same education, in other words, separate but equal. Brown v. Board of Education, however, ruled that this segregation was not constitutional and was therefore not a precedent to be followed. Although this is an example in which a precedent case was overturned for a positive reason, many are fearful that cases involving abortion rights, such as Roe v. Wade have the potential to be overturned with this new Supreme Court nominee.  While Supreme Court cases do get overturned, Roe v. Wade is a case that was decided over forty years ago and has really changed our society to one that is more accepting of abortion and the right of privacy when it comes to situations like these. It can be seen, however, that in certain times, although a precedent may be followed, the Justices may bend them at the margins in one way or another. An example of this is seen in Planned Parenthood v. Casey, where the right to privacy set forth in Roe v. Wade was followed, but the Court decided that certain regulations involving abortion are permissible – for example requiring a minor to receive consent from a parent prior to receiving an abortion or requiring certain record keeping and filing requirements at abortion clinics. In this case specifically, the undue burden test was employed to determine whether a certain requirement for an abortion would cause an obstacle for the woman to get an abortion in the proper time before the fetus would become what was determined to be a viable fetus. This is something that many people believe to be unfair or to be bending the ideals from Roe v. Wade in a way. What is clear, however, is that the main decision from years and years ago is something that although may sometimes be altered is not something that this new potential Justice would necessarily overturn completely, rather possibly interpret a precedent narrowly while not completely overturning it. This is something that should also be thought about when discussion issues that arise in the Court surrounding LGBTQ rights. Similarly to Roe v. Wade, decisions giving more rights to LGBTQ people have changed the way our country works and has made it in some ways a more accepting and more accessible place. This has become the way of life in the United States. This too, is something else that will most likely not be something one could overturn completely.

Polls show voters oppose overturning Roe v. Wade by two-to-one margins. But virtually unfettered access to abortion is a similarly unpopular position. Polls have consistently shown that Americans prefer some restrictions on abortion rights and a 2017 survey found nearly six in ten people backing a ban on abortion after 20 weeks with exceptions if the life of the mother is in jeopardy.

Therefore, should Kavanaugh be appointed to the Supreme Court, the fundamental principles of cases such as Roe v. Wade, and Obergefell v. Hodges, which have set legal foundations protecting the dignity and respect of our private lives, are unlikely to overturned completely.

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