Supreme Court nominee Brett Kavanaugh challenged the framing of Roe v. Wade as “settled law of the land” when he was a White House attorney during the George W. Bush administration, according to documents from his tenure that were leaked to the New York Times.
During his confirmation hearings, which were in their third day when the report was published Thursday, Kavanaugh did not say how he would rule on Roe, the Supreme Court decision that made abortion legal nationwide, but said that the ruling had been “reaffirmed many times.”
But in an email written in 2003, Kavanaugh took issue with a line in a draft opinion piece that said “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
Kavanaugh suggested deleting the phrase and wrote, “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.”
The email did not state whether that was his personal belief about abortion. Sen. Susan Collins, R-Maine, a centrist who supports abortion rights, said Kavanaugh told her in a meeting that he believed Roe was “settled law.”
“He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said that it is settled law,” Collins said told reporters.
Abortion rights groups and Democrats have raised concerns that with the current Supreme Court makeup, in which four justices may decide to overturn Roe, that Kavanaugh would cast a deciding fifth vote. They stake their fears in promises President Trump made during his campaign in which he said he would be “putting pro-life justices on the court.”
Such a decision would allow each state to determine the extent of abortion’s legality.
