Following the leak of a draft opinion of the U.S. Supreme Court indicating that the institution is set to overturn Roe v. Wade, the landmark 1973 ruling making abortion legal throughout the U.S., more attention has been given to three specific justices who have likely endorsed that opinion — and what they said during their confirmation hearings just a few years ago.
The draft order says it represents the majority opinion of the High Court. With all three liberal bloc justices likely to vote against it — and reports indicating conservative Chief Justice John Roberts was also unlikely to support completely dismantling the established precedent — the remaining five conservative bloc members are the most likely to potentially upend Roe.
Three of those conservative justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were confirmed in the past five years, under former President Donald Trump. Amid criticism and examination of how detrimental such a ruling could become, renewed scrutiny has been given to those three justices in particular, as their appointments directly led to the possibility of Roe being officially overturned later this year.
All three justices, as nominees at the time, gave answers indicating they would give deference to the nearly 50-year-old precedent protecting abortion rights. Their private conversations with lawmakers, too, are inconsistent with what appears to be their ruling on dismantling Roe.
In 2017, Gorsuch was nominated by Trump, who had himself promised only to select anti-abortion nominees to the Supreme Court. Gorsuch sought to assure senators tasked with approving him that he would not take the issue of abortion lightly, telling them during his hearings that he would have “walked out the door” had the former president demanded he overturn Roe.
In an exchange with Sen. Dick Durbin (D-Illinois) during those same hearings, Gorsuch was asked whether he agreed with specific findings from Roe, including the idea that, for the purposes of the 14th Amendment’s interpretations, a fetus is not a person.
“Do you accept that?” Durbin asked.
“That is the law of the land. I accept the law of the land, senator, yes,” Gorsuch responded.
In 2018, Kavanaugh also described Roe in similar terms. In private discussions with Sen. Susan Collins (R-Maine), she said that the nominee had told her that the case and others like it protecting abortion rights were “settled law.”
Kavanaugh tweaked that language a little bit during his hearings, but what he did say seemed to match what Collins suggested: that he believed Roe was mostly settled precedent.
“It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis,” Kavanaugh said. He added:
The Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.
And while Barrett tried to avoid calling Roe a super-precedent — a type of precedent that is seen as untouchable, in terms of how much harm it could cause if reversed — she herself acknowledged that her opinion on its status “doesn’t mean that Roe should be overruled.”
Taken together, these statements imply that the three justices, when they were nominees being considered by the Senate to serve on the nation’s highest court, would take a cautious approach to changing Roe’s abortion protections, if they took any action on the matter at all. Instead, all three appear to have eagerly signed on to a draft order (authored by Justice Samuel Alito, another anti-abortion member of the conservative bloc) to undo the decades of precedent at the very first opportunity that presented itself.
Several lawmakers have spoken out against the draft order, stating that, if it indeed becomes the opinion of the Supreme Court when it comes to abortion rights, it was done so erroneously and without consideration of precedent, as those justices had promised.
Collins herself has expressed disappointment in confirming Kavanaugh specifically, noting that her private conversations with him did not indicate he’d upend Roe.
“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said in a statement this week.
Speaker of the House Nancy Pelosi (D-California) and Senate Majority Leader Chuck Schumer (D-New York) blasted the draft opinion as wrongly decided. They also described the conservative justices who comprised the majority in the decision as liars.
“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation,” Pelosi and Schumer said in a joint statement.
We’re not backing down in the face of Trump’s threats.
As Donald Trump is inaugurated a second time, independent media organizations are faced with urgent mandates: Tell the truth more loudly than ever before. Do that work even as our standard modes of distribution (such as social media platforms) are being manipulated and curtailed by forces of fascist repression and ruthless capitalism. Do that work even as journalism and journalists face targeted attacks, including from the government itself. And do that work in community, never forgetting that we’re not shouting into a faceless void – we’re reaching out to real people amid a life-threatening political climate.
Our task is formidable, and it requires us to ground ourselves in our principles, remind ourselves of our utility, dig in and commit.
As a dizzying number of corporate news organizations – either through need or greed – rush to implement new ways to further monetize their content, and others acquiesce to Trump’s wishes, now is a time for movement media-makers to double down on community-first models.
At Truthout, we are reaffirming our commitments on this front: We won’t run ads or have a paywall because we believe that everyone should have access to information, and that access should exist without barriers and free of distractions from craven corporate interests. We recognize the implications for democracy when information-seekers click a link only to find the article trapped behind a paywall or buried on a page with dozens of invasive ads. The laws of capitalism dictate an unending increase in monetization, and much of the media simply follows those laws. Truthout and many of our peers are dedicating ourselves to following other paths – a commitment which feels vital in a moment when corporations are evermore overtly embedded in government.
Over 80 percent of Truthout‘s funding comes from small individual donations from our community of readers, and the remaining 20 percent comes from a handful of social justice-oriented foundations. Over a third of our total budget is supported by recurring monthly donors, many of whom give because they want to help us keep Truthout barrier-free for everyone.
You can help by giving today. Whether you can make a small monthly donation or a larger gift, Truthout only works with your support.