Kavanaugh hearing touches on abortion, religious liberty

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The Supreme Court building in Washington, D.C. Credit: Addie Mena/CNA.

US Supreme Court nominee Brett Kavanaugh faced a range of questions on Wednesday, the second day of his confirmation hearings, including on abortion and religious freedom.
Kavanaugh affirmed Sept. 5 that Roe v. Wade and Planned Parenthood v. Casey are “an important precedent of the Supreme Court,” and said that “being able to participate in the public square” with “religious speech” is “a part of the American tradition.”

Sen. Dianne Feinstein (D-Calif.) asked Kavanaugh in the morning about women's reproductive rights.

“As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” Kavanaugh replied. “Roe v. Wade held, of course, and it was reaffirmed in Planned Parenthood v. Casey, that a woman has a constitutional right to obtain an abortion before viability, subject to reasonable regulation by the state, up to the point where that regulation constitutes an undue burden on the woman's right to obtain an abortion.”

He said that the Roe decision “is settled as a precedent of the Supreme Court … one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”

Feinstein indicated that “how you make a judgement on these issues is really important to our vote as to whether to support you or not,” saying, “I truly believe that women should be able to control their own reproductive systems, within, obviously, some concern for a viable fetus.”

Kavanaugh replied: “I understand your point of view on that, Senator. And I understand how passionate and how deeply people feel about this issue. I understand the importance of the issue. I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision.”

“This is the point I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent. It's not as if it's just a run-of-the-mill case that was decided and never been reconsidered. It applied the stare decisis factors and decided to reaffirm it.”

“That makes Casey a precedent on precedent,” he said, which he compared to Miranda rights.

Feinstein asked, “What do you say your position today is on a woman's right to choose?”

Kavanaugh answered: “As a judge, it is an important precedent of the Supreme Court. By it, I mean Roe v. Wade and Planned Parenthood v. Casey. [It's] been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor to remember. And I understand the significance of the issue, the jurisprudential issue, and I understand the significance as best I can; I always try, and I do hear, of the real-world effects of that decision, as I tried to do all of the decisions of my court, and of the Supreme Court.”

In the afternoon, Kavanaugh  was questioned by Sen. Ted Cruz (R-Texas) about religious liberty issues.

Cruz first asked in that regard about the Ninth Amendment, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In his discussion of this amendment and its protection of unenumerated rights, Kavanaugh said that “an example of that is the old Pierce case where Oregon passed a law that said everyone in the state – this is in the 1920s – everyone in the state of Oregon had to attend, every student had to attend, a public school. A challenge was brought by parents who wanted to send their children to a parochial school, a religious school. The Supreme Court upheld the rights of the parents to send their children to a religious parochial school and struck down that Oregon law. That's one of the foundations of the unenumerated rights.”

Since Kavanaugh had mentioned religious liberty, Cruz then asked about his views on the importance of religious liberty and how the Constitution protects it.

“To begin with,” Kavanaugh answered, “it's important in the original Constitution; even before the Bill of Rights, the framers made clear in article six, 'no religious test shall ever be required as a qualification to any office or public trust under the United States'. So that was very important, in the original Constitution, that the framers thought it very important that there not be a test to become a legislator, to become an executive brand official, to become a judge … the framers understood the importance of protecting conscience, it's akin to the free speech protection in many ways … If you have religious beliefs, religious people, religious speech, you have just as much right to be in the public square, and to participate in the public programs, as others do.”

“In other countries around the world,” he said, “you're not free to take your religion into the public square.” He cited crosses being knocked off of churches in mainland China, and that “you can only practice in your own home, you can't practice, you can't bring your religious belief into the public square. And being able to participate in the public square is a part of the American tradition. I think as a religious person, religious speech, religious ideas, religious thoughts, that's important.”

Kavanaugh noted that the Supreme Court precedent has recognized that “some religious traditions in governmental practices are rooted sufficiently in history and tradition to be upheld … so the religious tradition reflected in the First Amendment is a foundational part of American liberty. And it's important for us as judges to recognize that and not – and recognize too that, as with speech, unpopular religions are protected.”

Cruz asked, of the free exercise and establishment clauses, “are they at cross purposes and intention are or they complimentary of each other?”

Kavanaugh answered that “I think in general it's good to think of them as both supporting the concept of freedom of religion … to begin with you're equally American no matter what religion you are, if you're no religion at all. That it's also important, the Supreme Court has said, that religious people be allowed to speak and participate in the public square without having to sacrifice their religion in speaking in the public square, for example, or practicing their religion in the public square. At the same time, I think both clauses protect the idea, or protect against, coercing people into practicing a religion when they might be of a different religion or might be of no religion at all. So the coercion idea, I think, comes out of both clauses as well … I think it's good to think of the two clauses working together for the concept of freedom of religion in the United States, which I think is foundational of the Constitution.”

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