Atop the list of items that Republican voters focused on during the 2016 election was the Supreme Court. With Justice Antonin Scalia’s death, the new president would have at least one opportunity to nominate a jurist to the highest position in the land. This factor was enough to motivate some right-leaning skeptics to vote for the GOP nominee.
Justice Anthony Kennedy’s announcement that he would retire by the end of July 2018 set off a frenzy among Republicans and Democrats alike. Placing two new justices on the court is a considerable advantage for any president. But however monumental the act, both parties have been so caught up in their respective ideologies that they simultaneously view a Kavanaugh confirmation as either securing the future for conservative good or bringing an end to even the most basic of freedoms.
Regardless of how the hearings proceed, neither viewpoint is entirely on base.
Paramount in the minds of seemingly a large majority of Americans is just how legal abortion will be impacted. While this is certainly a legitimate question, the answer isn’t nearly as wide-ranging as hoped, and feared, by the competing political entities. It’s almost as if there is a not insignificant group within both the pro-life and pro-choice crowds that remains convinced of immediate action once Kavanaugh is sworn in and seated. As if the justices have been anxiously waiting for a chance to reconsider one of the most controversial and politically charged court rulings of all time. But arriving at the point of re-evaluation is an actual process. Meanwhile, too many in the electorate gloss over pre-confirmation statements regarding Roe given by current justices and also Kavanaugh as nominee.
During Neil Gorsuch’s confirmation hearings, he described Roe v. Wade as “the law of the land.” During an August meeting with Sen. Susan Collins, R-Maine, it was reported that Judge Kavanaugh stated agreement with Chief Justice John Roberts, also nominated by a GOP president, that Roe was “settled law.”
Naturally, these declarations mean something different to each observer depending on their personal opinion. Some are disappointed that Kavanaugh views the 1973 decision as precedent. Others see rulings as set in stone but only until they’re overturned, as in the case of Plessy v. Ferguson and the subsequent ruling in Brown v. Board of Education. Frankly, why would nominees pronounce anything other than a law-abiding position while they’re being scrutinized by those who cast the votes? In light of what has been said, we can’t be absolutely certain of the direction that current or future justices may take on the abortion issue.
When conservatives view the legalization of abortion, they are quick to point out its obvious immorality. Though it’s been rationalized away to be seen as a routine part of women’s healthcare, the facts have always pointed to it being nothing more than state-sanctioned murder. Right-leaning voters who are eager to see it overturned will focus mostly on the evil that they see. But in the clinical setting of a courtroom, jurists will only look at settled law and the cases brought before them. From a purely legal standpoint, Roe is a garbage decision. While the likelihood exists that it may be reconsidered and one day overturned, it is not definite.
On the other hand, abortion supporters are caught up in what they’ve known for so long that they refuse to believe the future could hold anything different. If overturned, the issue would go back to the states. America already has some of the most permissive abortion laws in the developed world. Fewer than half of all states have 20-week abortion bans. Despite their protestations, females in the United States are allowed to single their unborn children out for destruction and have plenty of time in which to do it. A post-Roe society, whereby states make all their own decisions on abortion, would not look much different than our present reality.
Viewing a Kavanaugh confirmation as having any sort of immediate finality on abortion within the United States is to dismiss the truth. His appointment to the court means neither proof that it will be reconsidered nor assurance that it will go a certain direction. Once confirmed, the new justice will take a seat next to those who either lean Left or have been neutral in their feelings about the decades-old decision.
The emotional reactions to what might occur on a Kavanaugh court are expected. However, if both sides take a sober look at the issue, they’ll see that it does not quite line up with the future they are in a hurry to envision.
Kimberly Ross (@SouthernKeeks) is contributor to the Washington Examiner’s Beltway Confidential blog and a senior contributor at RedState.com.
