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Despite reference to settled law, ‘all bets are off’ for Kavanaugh on abortion

In just 12 days, President Trump's Supreme Court pick will face contentious hearings before the U.S. Senate. Where does nominee Brett Kavanaugh stand on key issues? Lisa Desjardins and CNN Supreme Court analyst Joan Biskupic join Judy Woodruff to analyze Kavanaugh’s judicial record and recent statements on the politically charged topic of abortion, including whether Roe v. Wade is 'settled law.'

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  • Judy Woodruff:

    It's one of the biggest decisions a president can make. And, in 12 days, Mr. Trump's pick for the Supreme Court will face a contentious confirmation hearing.

    In the run-up, Brett Kavanaugh has been making the rounds, meeting with U.S. senators to ask for their support.

    We want to take a look at where Kavanaugh stands on some of the key issues in question.

    Tonight, we begin with the most politically charged, abortion.

    Here to help us walk through his record and what he's been saying to senators, our Capitol Hill correspondent, Lisa Desjardins, and Joan Biskupic, a Supreme Court biographer and an analyst for CNN.

    Hello to both of you.

    So, it looks as if Judge Kavanaugh has been busy in the last few weeks, Lisa, because you have been following this very closely, talking to senators, trying to win them over.

    What do we know about what he's been saying himself to them about his record on abortion?

  • Lisa Desjardins:

    We have learned a lot in the past two — past four — three days, rather.

    Today, he had six meetings alone. And I think the person who best described what he's been telling senators on abortion is Susan Collins. She met with him on Tuesday. Let's listen to what she said he told her.

  • Sen. Susan Collins, R-Maine:

    We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at his nomination hearing him, in which he said that it was settled law.

  • Lisa Desjardins:

    Now, this seems to be a kind of a mantra for recent Supreme Court nominees. And it's something that Kavanaugh is sticking to.

    We hear Democrats and Republicans alike say this is what he's telling them.

  • Judy Woodruff:

    And so, hearing this, Democrats, who are inclined not to support him, most of them, what are they saying?

  • Lisa Desjardins:


    They say that it doesn't matter if it's settled law. The question is whether he's willing to overturn it. Chuck Schumer himself said it's settled until it's unsettled.

    And we also hear Democrats pointing to something about Justice Gorsuch. Justice Gorsuch use the same standard, saying that he saw Roe as settled law. But Democrats like Chris Coons today point out that Justice Gorsuch recently voted to overturn a 41-year precedent, a court case from the Supreme Court in 1977, about labor law, that in that venue is seen sort of as a Roe v. Wade of labor.

    Gorsuch did vote to overturn that. So Democrats are concerned that, whether it's settled law, these justices could be willing to overturn them.

  • Judy Woodruff:

    So, Joan Biskupic, to you.

    As somebody who's been watching the court for a long time, watching these nomination processes, first of all, when a nominee to the court speaks about something being settled law, is that something we take to the bank?

  • Joan Biskupic:



  • Joan Biskupic:

    It sounds nice. It is nice.

    And justice is — judicial nominees repeatedly say it. But it's just sort of stating the obvious, frankly, that if you have a precedent from 1973, which is when Roe v. Wade made abortion legal nationwide, of course it was settled. And then, in 1992, the court reaffirmed that.

    But as Lisa just mentioned, the Supreme Court has overturned precedent, four-decade-old precedent. And I think what he's doing, what we have seen through the years is a nominee sort of trying out some lines.

    When he meets with a senator, might experiment with what would be said. And we could see how Susan Collins received that quite positively.

    And it was interesting that he referred to Chief Justice John Roberts, because Chief Justice John Roberts did talk about the importance of precedent and of Roe v. Wade being settled, but he also said when — I think Senator Specter being among the many senators who questioned him on Roe back in 2005, said, I don't want to talk about what would change over the years. I don't want to talk about individual cases that might come up.

    And, just for the record, we do have a ruling — we have two rulings on abortion from Chief Justice John Roberts, one in 2007, and then more recently, where he did undercut the right.

  • Judy Woodruff:

    Well, let's talk a little bit, because you have been looking very closely at this, poring over — you and other journalists poring over Judge Kavanaugh's — first of all, his rulings.

    What has he written in opinions that tell us anything about his view on reproductive rights?

  • Joan Biskupic:


    Well, Judy, he sits on the U.S. Court of Appeals for the D.C. Circuit, which usually doesn't handle these kinds of individual rights. But he did rule last October in a case that involved a young pregnant migrant who had crossed the border, was being held in detention.

    And the Trump administration didn't want to allow her to get the abortion that she wanted immediately. He dissented from his — the majority on the court that said, no, Trump administration, you're putting up an undue burden before this young woman. And they ruled in a way that allowed her to have the abortion.

    He dissented, saying the government has an interest in fetal life here. He didn't say that he would overturn Roe. He said Roe is settled law. But he stressed that it wouldn't have been a burden on this woman to have waited and gotten a sponsor, the government was right to try to make her wait and consider it.

  • Judy Woodruff:

    And I want to come to something else.

    But before I do, Lisa, this is something that Democratic senators in particular have been talking about.

  • Lisa Desjardins:

    Right. I think that's right.

    This is a big issue for everyone. And I think when you look at the lay of the land, there are three Democratic senators that are key votes here. Of course, the margin in the Senate is very close. And these three senators voted for Justice Neil Gorsuch, so we're watching them carefully.

    On abortion, it's interesting. All three of these senators have states that either have right now an abortion trigger law, so that if Roe v. Wade was overturned, automatically, abortion would be illegal in their state. That's North Dakota with Heitkamp.

    Or, in the case of West Virginia, there's a ballot measure that would say this, that abortion is illegal in the state. So there's conservative-leaning states on abortion.

    But talking to their offices, it's interesting. They're saying to me that they are getting more pressure from their voters on other things. For example, Heitkamp says her farmers are worried about tariffs.

  • Judy Woodruff:

    That's interesting.

  • Lisa Desjardins:

    And there's other senators who say the pressure on Kavanaugh is not about abortion, but about Trump himself, do you support the president or no?

  • Judy Woodruff:


    I do want to come back to you, Joan Biskupic, though, on this other aspect of Kavanaugh's record. And that is, what has he written in articles? What has he said in speeches about Roe v. Wade that we can glean something?

  • Joan Biskupic:

    He has talked about his judicial heroes.

    The first one when he was a young law student was former Chief Justice William Rehnquist. And he cited Rehnquist's dissent in Roe v. Wade back in 1973.

  • Judy Woodruff:

    Opposing the majority.

  • Joan Biskupic:

    Yes, right.

    Now, he — again, he didn't say, I agree with it, but he was holding him up as a hero. And he's done the same with the late Justice Antonin Scalia, who was also an opponent of abortion rights.

    I think what we will see beginning on September 4, when the hearings begin, is a man who again expresses regard for precedent, talks about what is settled, talks about how it's a jolt, as Chief Justice John Roberts had said, to society when precedent is overruled.

    But I think, once he gets up there in a lifetime position, all bets are off.

  • Judy Woodruff:

    But there's little doubt that they're going to be asking him about these two things, the case about the immigrant, the young woman who was pregnant…

  • Joan Biskupic:


  • Judy Woodruff:

    … and about the — certainly praising Justice Rehnquist in dissenting in Roe.

  • Joan Biskupic:

    That's right. They will ask him. Then they will ask him again. Then they will ask him again.


  • Joan Biskupic:

    And right now, Judy, I bet what he's doing is rehearsing his answers to try to satisfy senators enough to get the majority vote.

  • Lisa Desjardins:

    And I know one office where the senator is listening to the audio of that Garza case on that young migrant abortion case, because we have audio of that. That's something they're studying.

    How — what did he himself say verbally? And how did he say it?

  • Judy Woodruff:

    Well, as we — as you said, Lisa, abortion will not be the only issue to come up, but it certainly is going to receive, we assume, a fair amount of attention from these senators.

    And we will be talking about other issues of import, as we look at the Kavanaugh nomination in days to come.

    Joan Biskupic, Lisa Desjardins, thank you both.

  • Lisa Desjardins:


  • Joan Biskupic:

    Thank you.

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