What's at Stake with Brett Kavanaugh, Abortion Rights, and Roe v. Wade , Explained

As Brett Kavanaugh begins the most grueling stretch of his Supreme Court confirmation hearings before the Senate Judiciary Committee—a multi-day stretch of being alternately peppered with hard questions about his fundamental beliefs (by Democrats) and praised as an infallible champion of apolitical statutory and constitutional interpretation (by Republicans)—much of the back-and-forth will focus on Kavanaugh's beliefs about abortion. Anthony Kennedy, the man Kavanaugh would replace, was the Court's longtime swing vote in cases concerning a woman's right to choose, among others. Advocates fear that replacing him with a Trump appointee could be the final step in the conservative movement's strenuous efforts to do away with Roe v. Wade for good.

Because linking Kavanaugh to the death of Roe is probably Democrats' best shot at defeating his candidacy, you can expect the nominee to say as little about the subject as possible over the next few days. Below, I'll try and fill in the gaps, answering all your most pressing questions about why Roe has been in danger for decades; what Kavanaugh has said about the subject before; and how he might go about dismantling abortion rights, should he find himself in a position to do so anytime soon.

Why is Roe so important, again?

The right to choose in this country rests primarily on two landmark Supreme Court cases: Roe, decided in 1973, and Planned Parenthood v. Casey, which came down in 1992. (There are other relevant cases that shape the contours of abortion policy, but you signed up to read an explainer, not a law review article sprinkled with hundreds of footnotes.) In Roe, a 7-2 majority found that the right to choose is protected by the fundamental right to privacy enshrined in the Fourteenth Amendment. In Casey, a messy plurality of the Court—a coalition that included Justice Kennedy—upheld what it called the "essential holding" of Roe while also weakening it a bit, allowing states to regulate abortion as long as they do not place an "undue burden" on a woman's ability to obtain one.

Wait a minute. The Fourteenth Amendment doesn't say anything about any "right to privacy."

Correct. Justice Blackmun's majority opinion relied on a "line of decisions" in which, he wrote, "the Court has recognized that a right of personal privacy, or a guarantee of certain areas of zones of privacy, does exist under the Constitution." (He cites as examples the "fundamental" rights to marry and to access contraceptives.) Abortion, he reasoned, merits the same treatment under the law. For the Antonin Scalias and Clarence Thomases of the world, who profess to believe that the only source materials relevant to the task of constitutional interpretation are the Constitution's 250-year-old words and nothing else, the reasoning in Roe is an ongoing travesty of justice.

Over the last 25 years, challenges to anti-abortion laws have mostly turned on whether a given statute creates an "undue burden" under Casey. Regardless of how the Court comes down each time, many cases yield separate opinions from the conservative justices, who write to reiterate their belief that the "undue burden" debate considers the wrong question, because the entire framework of Roe is and has always been invalid. (Justice Thomas' one-paragraph concurrence in 2007's Gonzales v. Carhart—in which Justice Scalia joined—is a representative example.) The fever dream for anti-choice activists is to get a Court with enough like-minded folks to turn those petulant objections for the record into a long-awaited majority opinion.

Right now, three sitting justices—Thomas, Alito, and Gorsuch—have a history of issuing these anti-abortion screeds in the Supreme Court reporter, and are reliable votes to overturn Roe at their earliest opportunity. Chief Justice Roberts isn't quite as extremist as that trio, but could almost certainly be convinced without much trouble. This is why Kavanaugh's position is so important: He is, in theory, the last piece to a puzzle that conservatives have been assembling for the last 45 years.

If his stance is so important, why don't senators just ask him about it during these confirmation hearings?

Because the number-one rule for these hearings is "Don't reveal anything about how you'd rule on a substantive issue that might come before you as a justice." The rationale for this strategy, which has been offered and repeated for decades by Democratic and Republican nominees alike, is that judges are supposed to be independent, and committing to a given position on the record would compromise that independence going forward. The real reason is that this is a numbers game: Most nominees make it through, and those who don't are usually rejected because they did something moronic. (Hi, Robert Bork!) Saying as little as possible is the optimal confirmation strategy.

You could see this dynamic in all of its uncomfortable glory on Wednesday, when Senator Dianne Feinstein asked Kavanaugh if he considers Roe to be settled law, or subject to potential reversal. Kavanugh replied that Roe is "settled and a precedent of the Supreme Court" and is "entitled the respect under principles of stare decisis"—the basic rule that judges decide new cases based on cases that have come before.

Feinstein stopped him to point out the obvious, which is that these are statements of fact, but ignore the reality that cases are sometimes overturned, and that his comments reveal nothing about whether he would do that here, which is the question that matters. "When the subject comes up, the person says, 'I will follow stare decisis,'" she said, referring to the nine Supreme Court confirmation processes of which she's been a part. "And then they get confirmed, and of course they don't."

Kavanaugh responded with more legally meaningless bromides, stating that he understands "the importance of the issue," and "how passionate and how deeply people feel" about it. He also made the bizarre assertion that Casey is "precedent on precedent," implying the existence of some kind of super-precedent that, to the best of my knowledge, is not a real thing. Both Kavanaugh and Feinstein knew how this conversation would go: He knew she'd ask, and she knew he wouldn't say anything of substance. She does it anyway, because she has to try; he's just trying to appear as polite and congenial as possible while also running out the clock.

In a perfect world, we would form our opinions about Kavanaugh and other Supreme Court hopefuls based on their plainly-stated judicial and legal philosophies. But since the process today functionally bars nominees from doing so, we are left to cobble together Kavanaugh's beliefs based on his record as a jurist.

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What does Kavanaugh's record say?

It's not encouraging. During his confirmation hearings for his current job—an appellate court judge on the D.C. Circuit—Kavanaugh said that he'd follow Roe as binding precedent handed down by the Supreme Court. This sounds nice, but obviously leaves open the question about what'd he do if he were on the Supreme Court himself.

In 2015, Kavanaugh dissented from an en banc D.C. Circuit holding that under Casey, the Trump administration's decision to prohibit an undocumented immigrant woman in federal custody from obtaining an abortion constituted an impermissible "undue burden." Kavanaugh's opinion asserts that the majority's position allows the government to help "facilitate" abortion, and is riddled with loaded phrases like "abortion on demand"—which, as the Washington Post notes, is a favorite buzzword in the anti-choice community. (Weirdly, this case also prompted criticism of Kavanaugh among some conservatives, who would have liked to see their Supreme Court nominee declare a more Scalia-esque hostility to Roe.)

In speeches, Kavanaugh has praised the late chief justice William Rehnquist—one of the dissenters in Roe and Casey—as his "judicial hero" for taking a more conservative view of the spectrum of unenumerated constitutional rights, which includes the right to privacy. While Rehnquist failed to convince his fellow justices to overturn Roe, wrote Kavanaugh, he "was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition."

As Drexel University law professor David S. Cohen argued to the L.A. Times, these statements are significant because they come outside the context of judicial opinions, where Kavanaugh might feel more constrained by precedent. If you're looking for a snapshot of what Kavanaugh personally believes the law to means—beliefs that would guide his decision-making process on the Court—this might be as close as it gets.

Any other clues?

Sure. Brett Kavanaugh is a lifelong Republican, and on the campaign trail, Donald Trump promised to appoint judges who would overturn Roe. He has picked his Supreme Court nominees from lists supplied to him by the Federalist Society, an organization of conservative lawyers with a decidedly anti-choice bent.

Trump can't control what Kavanaugh might do after his confirmation, and it's extremely unlikely that Kavanaugh (or any potential nominee) would provide any president with any kind of guarantee, even in private. But the involved parties have spent a lot of time here winking at one another, and they needn't speak everything out loud in order to know that favors they do will be returned in kind.

What could Justice Kavanaugh do to dismantle Roe?

As you may have noticed, the "undue burden" concept delineated in Casey is the kind of squishy, nebulous phrase that can be massaged to mean whatever a majority of justices decide it means. (In the D.C. Circuit case, for example, Kavanaugh's position rested on his subjective belief that the Trump administration had created no undue burden for the plaintiff. His colleagues just happened to disagree.) If anti-choice activists succeed in destroying abortion rights in the United States, exploiting this lingering bit of ambiguity is their easiest way of going about it.

Should Kavanugh be confirmed, you can expect to see a steady stream of 5-4 opinions in which he and his fellow conservatives determine that each successive anti-abortion law that comes before them clears the Casey bar as they set it. Casey permits the imposition of burdens, after all—just not "undue" ones. The Court may not even formally overturn Roe, and while conservatives would love that result for symbolic purposes, it isn't necessary to accomplish the ends for which they hope: It will be enough if Kavanaugh and company methodically whittle Roe's promise to a sliver, permitting this noble-sounding right to exist while holding, in practice, that nothing infringes upon it. Right now, they're closer to this victory than they've ever been.