Kavanaugh’s abortion views under new scrutiny

Brett Kavanaugh’s views on abortion are under fresh scrutiny following his days-long, heated confirmation hearing before the Senate Judiciary Committee.

Democrats and outside groups pounced on previously unreleased emails from the Supreme Court nominee’s time in the White House counsel’s office, as well as his dodges on questions about legislation, contraception and Roe v. Wade.

Kavanaugh, if confirmed, is expected to tilt the court to the right by giving conservatives a fifth vote in cases on crucial issues like abortion.

{mosads}Democrats have tried to make his views on women’s health care central to their argument for opposing Kavanaugh. And they got fresh ammunition this past week that they’re hoping to use to put new pressure on two GOP lawmakers who have been supportive of abortion rights — Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) — as Kavanaugh’s nomination heads into a crucial stretch.

Adam Green, co-founder of the Progressive Change Campaign Committee (PCCC), said Kavanaugh “showed his cards” about his willingness to overturn Roe if he’s confirmed.

“Susan Collins and Lisa Murkowski want their legacies to be as independent-minded moderates,” Green said. “But if they support Kavanaugh, their legacies will be jailing thousands of women because they didn’t have the fortitude to stand up to a disgraced president who made clear his nominee would overturn Roe.”

Democrats need to persuade at least two Republicans to vote against President Trump’s nominee, and moderates Collins and Murkowski are seen as potential swing votes.

The key point of attack for Democrats is a 2003 email in which Kavanaugh appeared to challenge the view that the landmark 1973 abortion case is settled law. He recommended cutting a paragraph from a draft op-ed that called Roe “widely accepted … settled law of the land.”

“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,” he wrote in the email.

Kavanaugh defended his language, telling senators on the Judiciary Committee that he thought the viewpoint of legal scholars had been overstated and he was merely striving for accuracy.

But when Sen. Dianne Feinstein (Calif.), the committee’s top Democrat, pressed him to say whether he believes the case is settled law, he refused, citing judicial independence.

Brian Fallon, a spokesman for Demand Justice, called Kavanaugh’s email a “direct violation” of the guidelines Collins has outlined for a Supreme Court nominee.

“There is no way she can credibly vote for him without being exposed as a giant hypocrite,” Fallon said.

After Collins held a one-on-one meeting with Kavanaugh before his confirmation hearing, she said he assured her that he agreed that Roe is settled law. Murkowski confirmed that Kavanaugh gave her the same assurance during their meeting.

Senate Minority Leader Charles Schumer (D-N.Y.) seized on the email as proof that Kavanaugh would be the “deciding vote” on a potential case to scale back or overturn established abortion rights.

“That’s an email from Judge Brett Kavanaugh … explaining that Roe v. Wade is only settled law until a majority of the court decides it isn’t,” Schumer said.

Kavanaugh also drew criticism for evading certain questions during the hearing, with Democrats saying they believe he was being mindful of assurances he previously gave to Collins and Murkowski.

“I think he’s more trying to avoid that in order to give senators like Sen. Murkowski and Sen. Collins some room to believe that he will protect Roe and that they could be surprised later on when he doesn’t,” Sen. Sheldon Whitehouse (D-R.I.) told MSNBC’s “The Beat,” when asked about Kavanaugh’s sidestepping direct questions on upholding or overturning Roe.

The nominee also sparked a firestorm after referring to birth control as “abortion-inducing drugs.”

The remark came when Sen. Ted Cruz (R-Texas) asked him at the hearing about his opinion in a case — Priests for Life v. U.S. Department of Health and Human Services — where Kavanaugh dissented from the D.C Circuit’s decision not to rehear a challenge religious employers brought against the Affordable Care Act’s contraception coverage requirement.

“This is a an emergency, all-hands-on-deck moment for women across America,” said Bob Bland, co-president of Women’s March. “We know Brett Kavanaugh is against abortion, and now we know he thinks birth control is abortion.”

Kavanaugh’s comment also caught fire with Senate Democrats.

“Newsflash, Brett Kavanaugh: Contraception is NOT abortion,” Sen. Elizabeth Warren (Mass.) quipped on Twitter. “Anyone who says so is peddling extremist ideology – not science – and has no business sitting on the Supreme Court.”

Ian Samuel, an associate professor at the Indiana University Maurer School of Law in Bloomington, said Kavanaugh’s comment about birth control was certainly a misstep, but doubted it’s enough to change anyone’s mind.

“You are already engaging in an amazing suspension of disbelief if you believe Kavanaugh when he says Roe is settled law,” Samuel said.

Anti-abortion groups pushed back against critics who said Kavanaugh’s comment signaled his personal views on abortion.

Douglas Johnson, a senior policy adviser at National Right to Life, said Kavanaugh was merely characterizing a claim made by the plaintiffs in the case before him.

“He’s not taking a position and neither did any of the other judges in the case,” Johnson said. “This is another attempt on the part of some to manufacture an issue.”

Progressive groups are now committing more resources to help Democrats in their effort to win over Collins and Murkowski.

PCCC, NARAL Pro-Choice America and Demand Justice announced after the 2003 email surfaced that they were placing new ads in newspapers in Alaska and Maine. NARAL separately said it would purchase an additional $500,000 in TV and digital ads calling on Collins to oppose Kavanaugh.

“Any senator who claims to care about women and our reproductive freedom should need no further evidence to publicly oppose this nomination,” said Ilyse Hogue, the president of the NARAL. “A vote to confirm Kavanaugh is a vote to end Roe.”

Collins initially appeared skeptical that the 2003 email implied Kavanaugh didn’t believe that Roe was “settled” law. She told reporters Thursday that, while she hadn’t read the email, based on what she had been told, it appeared Kavanaugh was “merely stating a fact,” which is that three justices on the Supreme Court at the time would vote to overturn it. 

“If that’s the case then, and it’s not expressing his view, then I’m not sure what the point of it is,” she said.

Asked about the email later on Thursday following a closed-door lunch, Collins demurred, saying she had been busy and hadn’t had time to read it.

The Hill reached out to a spokeswoman for Collins on Friday about whether the senator still believed Kavanaugh thought Roe was “settled law,” given the 2003 email. The spokeswoman did not respond.

But on Saturday evening, her office flagged comments Collins made after reading the email, where she told reporters that it was “obvious” Kavanaugh was editing an op-ed.

“It’s obvious to me that he was editing an op-ed piece and he said something that is accurate, which is not all legal scholars would agree that Roe v. Wade was precedent, binding precedent, and note the word that he says not every or not all legal scholars would agree with that,” Collins said Friday, according to a transcript provided by her office.

“He also points out the obvious that a precedent can be overturned but in fact, as he told me, he believes that in order to overturn a precedent it would have to be grievously wrong,” she continued.

A spokeswoman for Murkowski said on Friday that the GOP senator will review the email over the weekend. Before it was released, Murkowski appeared skeptical that Kavanaugh’s confirmation would automatically lead to Roe being overturned.

“I do think that there are people who have been made to fear that if Judge Kavanaugh is nominated, that the day he joins the bench, that Roe vs Wade is going to be overturned,” she told the Anchorage Daily News. “That is just not possible.”

Peter Sullivan contributed. Updated 8:35 p.m.