Kavanaugh Slammed Roe v. Wade in 2017 Speech: Was a “Freewheeling Judicial Creation of Unenumerated Rights”

National   |   Steven Ertelt   |   Jul 12, 2018   |   12:23PM   |   Washington, DC

The text of a speech Supreme Court nominee Judge Brett Kavanagh gave in 2017 has people on both sides of the abortion debate wondering if it’s an indication that he would be open to overturning Roe v Wade.

The pro-life movement has always condemned the infamous abortion case as one where a Supreme Court essentially invented a so-called right to abortion out of thin air. The text of Cavanaugh speech, which was mostly about former Supreme Court Justice William Rehnquist and the issue of assisted suicide, has Kavanaugh essentially agreeing with that assertion.

The SCOTUS nominee called Roe a “freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”

Here’s the text of the speech in context:

In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition. The 1997 case of Washington v. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right.

Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973—as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But 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. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.

One conservative commentator at Hot Air provided his take on the quote.

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What makes the passage “Roe-skeptical” isn’t his claim that the Court “created” the right to abortion, it’s his cautiously pejorative references to that process. It wasn’t just that judges created a right in Roe, Kavanaugh says, it was that it was part of a “freewheeling” judicial trend at the time. It’s hard to imagine a judge, particularly a conservative judge, ever using “freewheeling” as a compliment to describe a turn in jurisprudence. More significantly, Kavanaugh doesn’t merely say that Roe involved judges creating an unenumerated right; he says they created a right that was “not rooted in the nation’s history and tradition.” That is, he’s contrasting the ruling in Glucksberg, with which he obviously agrees, with the ruling in Roe, going so far as to suggest that it’s impossible to reconcile the two.

Whether the quote is evidence that Judge Kavanaugh would overturn Roe if confirmed to the Supreme Court is a serious question but his quote should provide additional comfort — beyond his already sterling pro-life record on cases LifeNews has previously covered — for pro-life people wondering if he’s open to overturning the case that ushered in an era of 60 million abortions.

Kavanaugh has taken the pro-life side in important cases and has very strong pro-life Bona fides — prompting leading pro-life groups to praise him for a sterling pro-life record and this quote adds to the list of positive criteria pro-life advocates can consider. Trump applauded Judge Kavanaugh as someone who would apply the Constitution as written but Planned Parenthood launched a fierce attack the Supreme Court nominee, claiming he would “wreak havoc” on abortion. Looks like the abortion company might be right.