Brett Kavanaugh claims abortion rights could be overturned – but there’s a big problem with his argument

In a column published Tuesday, Supreme Court Justice Brett Kavanaugh faced criticism for arguing that America's highest court had reversed itself in the past. His comments came as the Supreme Court could possibly overturn Roe v. Wade, the landmark decision upholding a woman's constitutional right to have an abortion.

Politico's Kimberly Whele accused Kavanaugh of neglecting "to point out a notable fact" about the times the Supreme Court has walked back on precedent.

She noted that during his Supreme Court confirmation hearing in 2018, then-circuit judge Kavanaugh was asked by Sen. Dianne Feinstein (D-CA) if Roe v Wade was "settled law... or can it be overturned?" Kavanaugh's response was that "it is settled as precedent under the Supreme Court. One of the important things to keep in mind about Roe v. Wade is it has been reaffirmed many times over the years, as you know.”

Kavanaugh affirmed that "as a judge" he would respect the "important precedent" of the 1974 abortion law and a woman's right to choose, claiming to understand the sensitivity around the issue. “I don't live in a bubble,” he said. “I live in the real world."

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Fast-forward three years later and Kavanaugh's response to the topic of precedent in the court system seems to have shifted. The Supreme Court heard oral argument on Dec. 1 in Jackson Women’s Health Organization v. Dobbs, the Mississippi case that abortion rights supporters fear the newly conservative court will use to overturn Roe.

Kavanaugh clearly stated, “If you think about some of the most important cases, the most consequential cases in this court’s history,” he said, “there’s a string of them where the cases overruled precedent.”

"...why, if ... we think that the prior precedents are seriously wrong ... 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... ” he posed.

As Whele wrote in her op-ed, "To understand the significance of what it would mean to wipe a constitutional right off the books altogether, two concepts are foundational. The first is stare decisis, which is Latin for 'to stand by things decided.' Although not in the actual Constitution, the court has historically abided by the assumption that, absent some special justification, its prior rulings stand."

Whele noted that when the Supreme Court has overruled prior precedents, it has done so to expand rather than restrict constitutional rights. Overturning Roe would be a stark departure from this tradition, she said.

"If he and four other justices join together to overrule Roe come June 2022, this country will indeed look vastly different when it comes to the individual constitutional rights of women against government intrusion. And that movement would be backward rather than forward, a rejection of a hallmark of America’s constitutional jurisprudence and its societal strength," Whele concluded.