The Conservative majority’s decision to end the constitutional right to abortion — overturning landmark rulings such as Roe v. Wade and Planned Parenthood v. Casey — has thrown a renewed spotlight on what the judges do during their hearings. said on the subject.
Following the standard script of most nominees, they all avoided saying directly how they would rule in either case, usually insisting on expressing their belief in the importance of precedent, the legal doctrine of “stare decisis.”
Here’s a sample:
Judge Barrett questioned whether she would vote to overturn decisions protecting abortion rights, but gave no hint of how she might rule.
†What I promise is that I will obey all the rules of stare decisis, that if a question arises as to whether Casey or any other case should be overruled, I will follow the law of stare decisis and apply it as the court is articulate, applying all factors, trust, workability, being undermined by later facts in the law, just all the standard factors,” she said during her confirmation hearing in October 2020. “I promise to do that for any problem that arises, abortion or something else. I will follow the law.”
Judge Kavanaugh, repeatedly asked how he would decide Roe, declined to answer directly whether the decision was “the correct law.”
Roe v. Wade †is an important Supreme Court precedent that has been reaffirmed many times. But then planned – and this is the point I want to make that I care about. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decision factors,” he said in 2018. “So Casey is now setting precedent upon precedent. It’s not like it’s an ordinary case that was decided and never reconsidered, but Casey specifically reconsidered it, applied the stare decision factors and decided to reaffirm it. That makes Casey a precedent upon precedent.”
Judge Gorsuch, President Donald J. Trump’s first Supreme Court nominee, declined to say how he would decide on abortion.
“Roe v. Wade, ruled in 1973, sets a US Supreme Court precedent. It has been reconfirmed. The trust interest considerations are important there, and all other factors that come into play when analyzing precedents must be considered,” he told senators in March 2017. “It is a US Supreme Court precedent. It was reconfirmed in Casey in 1992 and in several other cases. So a good judge will consider it a U.S. Supreme Court precedent worthy of treating a precedent like any other.”
He added: “If a judge starts to tilt his or her hand as to whether or not they like this or that precedent, that would send the wrong signal. It would send a signal to the American people that the judge’s personal views have something to do with the judge’s work.”
At his January 2006 hearing, Mr. Alito that he would approach the issue of abortion with an open mind.
“Roe v. Wade is an important Supreme Court precedent. It was decided in 1973, so it’s been on the books for a long time,” he said.
But he stopped calling the historic ruling permanent law.
“If a settlement means it can’t be re-examined, that’s one thing,” he told senators on the Judiciary Committee. “If settled means it sets a precedent that is entitled to respect as stare decisis† and all the factors i have mentioned come into play including the reaffirmation and all that then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in this way.”
He added: “It has been challenged. It has been reconfirmed. But it is an issue that is now at all levels of litigation.”
When he appeared before the Senate Judiciary Committee in September 1991, Judge Thomas sidestepped his stance on abortion, refusing to state whether Roe had made the right decision.
“The Supreme Court, of course, in the Roe v. Wade case established an interest in a woman’s right to — as a fundamental interest, a woman’s right to terminate a pregnancy,” he said. “I don’t think I could maintain my impartiality as a member of the judiciary and comment on that particular case at this point.”
“Senator, your question to me was: did I debate the content of Roe v. Wade, the outcome in Roe v. Wade, do I have an opinion today, a personal opinion, on the outcome in Roe v. Wade,” he added: “and my answer to you is I don’t.”