Kavanaugh says "the Constitution is therefore neither pro-life nor pro-choice"

[In It to Win It]

in his concurrence.

https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

Kavanaugh says:

On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.

In arguing for a constitutional right to abortion that would override the people’s choices in the democratic process, the plaintiff Jackson Women’s Health Organization and its amici emphasize that the Constitution does not freeze the American people’s rights as of 1791 or 1868. I fully agree. To begin, I agree that constitutional rights apply to situations that were unforeseen in 1791 or 1868—such as applying the First Amendment to the Internet or the Fourth Amendment to cars. Moreover, the Constitution authorizes the creation of new rights—state and federal, statutory and constitutional. But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution—state legislation, state constitutional amendments, federal legislation, and federal constitutional amendments.

I'm curious what you all think. In the majority opinion, as far as I remember, it states that this decision of abortion is left to the people's representatives. Correct me if I'm wrong but of what I read, it didn't specifically say that issue is for states -and states alone- to decide but the people's representatives, which obviously could be Congress. Given this opinion, would the Court strike down such an abortion rights law passed by Congress?

[J_William_Ryan]

1. If Congress were to enact Federal law codifying the right to privacy,

where the states cannot ban abortion in violation of the right to privacy, one fails to see on what grounds such a law could be challenged.

Congress has before enacted Federal legislation codifying and defending citizens’ rights, such as the Civil Rights Act of 1964, which was upheld by the Supreme Court.

Clearly Congress has the authority to enact such a measure.

[AlexSFCA]

6. it can easily (and likely) be overturned by SC on 5th amendment grounds

fetal personhood. A case like that would outlaw abortion nationwide. And that is the end game of the pro forced birth movement. Alito didn’t just terminated stare decisis as doctrine so that blue states are used as loopholes.

[Polybius]

18. 10 Amendment perhaps?

They will come up with something.

[In It to Win It]

23. I was thinking legislation would be made

pursuant to the 9th amendment. Congress would be enforcing the 9th amendment.

But I think you’re right that they will think of something, and I think that would likely be the 10th amendment.

[Zeitghost]

2. It sounds like Kavanaugh is saying

He would not strike down a federal law protecting abortion rights. I would suspect Roberts, Gorsuch and possibly others would join him. Conservative institutionalists tend to favor and support legislative action.

[In It to Win It]

5. I suspect Roberts would not strike down

a federal law protecting rights each. From his partial concurrence, it seems he wanted to punt the question anyway. This seems like a case he really didn't want and wasn't ready for the court to answer a question of a complete overturning of Roe.

[Thomas Hurt]

7. Unless of course he "changes his mind' like he did for Dobbs.

[Zeitghost]

9. He didn't change his mind on Dobbs

He never made any claims that he would uphold Roe or Casey.

He was basically asked if he enjoyed the hot weather we are having and responded by saying it's 95° and sunny outside right now. It was a non-answer.

Future Justice Ketanji Brown Jackson made similar comments on Heller and McDonald and I have no doubt she would vote for overturning both. It's just how Justices answer such hypotheticals, they can't make definitive statements on potential future cases.

[In It to Win It]

15. I agree with this

Their answers were vague and not really answers.

The answer to if they believe Roe was settled law was something like “it is the law of the land and I respect the law of the land.”

All that ever meant to me was “sure, it is and you will respect it while it is still the law of the land but it is the law of the land until you change that.”

[OnDoutside]

11. I believe you are correct, but of course they've already lied in their

own confirmation hearings about Roe being settled law. That said, the next push from Democrats should be to codify Roe v Wade, thus putting it up to Kavanaugh and his SC buddies. If they then strike that down, then it's full tilt at reshaping the SC itself.

Above all, the filibuster has to go.

[Zeitghost]

13. Roe was settled law

And they resettled it. "Settled Law" is not some special legally binding protection all judges are sworn to uphold. It's simply the current state of things.

And no, the filibuster needs to stay, it's an important protection and ending it would only come back and bite us next time the Republicans take the Senate. Like packing the court and other hair-brained ideas some of us on the left have. It's not like these things are tools only we can use. They will eventually be used against us and it will be sooner rather than later.

[In It to Win It]

14. As it has with SCOTUS Justices

[Polybius]

19. So does that mean they wouldn't strike down a law banning abortion nationwide too?

Yikes.

[In It to Win It]

21. Yup

There is also a chance that can happen but we forge ahead anyway

[Zeitghost]

24. They would likely not strike it down

They will largely defer to the legislature on anything not specifically coded in the Constitution, especially Roberts who is a very strong supporter of legislative power. It's why he came down in support of the ACA.

[Yo_Mama_Been_Loggin]

3. Go home Kavanaugh

You're drunk again

[tirebiter]

4. By a 2 to 1 margin

Americans are prochoice. That needs to be born out in elections that do not address the subject directly. Evidently we must overwhelm the opponents into a lack of power to deny this truth that we hold natural. Natural being what is obvious or what Thomas Jefferson referred to as God or self evident. It ain’t necessarily written down. It is discovered.

[OnDoutside]

12. Can you imagine what the RWNJs would do if THEY had a 2-1 majority?

Prochoice needs to get its house in order and frame this properly. If they do, this period will have been the high watermark for RWNJs.

[LeftInTX]

8. In other words, he saying that there is no constitutional right to abortion

It's like saying, "There is no constitutional right to eat a Kit Kat Bar, each grilled cheese, take Viagra or purchase alcohol.

Actually purchasing alcohol is similar analogy because there are numerous counties which prohibit sale of alcohol.

[In It to Win It]

10. On a nationwide basis

Congress is our only shot because adding seats to the Court appears to be out of reach. On a national basis, the next step in this fight is Congress and truthfully, it seems like the only step.

It's either we:

1) get enough Senators, while maintaining control of the House, to pass an abortion rights law leaving the filibuster intact. That is a really high bar and also appears to be out of reach in the short term.

or

2) We get just enough Senators that would be willing to nuke the filibuster, all else being equal, and pass an abortion rights law.

After that, we're playing defense, hoping the Court doesn't strike down the law. Kavanaugh is suggesting, or rather, explicitly saying that he would not strike down federal legislation on the issue because the Constitution is silent, not explicitly prohibiting Congress from doing anything.

[Yo_Mama_Been_Loggin]

27. Boofer boy unable to purchase alcohol?

That would be a major crisis in his life.

[LeftInTX]

29. LOL...send him to a dry county...

https://en.wikipedia.org/wiki/Dry_county

60 years ago, Tallahassee Florida was in a dry county. It was dry to the point that my dad kinda made a stink about it when we visited my grandparents there.

In 2010, we were in Angelina County in east Texas. Hubby wanted to "buy a can of beer" to take with us fishing. He couldn't find any after trying several gas stations. So we went to Wal Mart and we couldn't find beer. Hubby says, "I think we're in a dry county". Since that time, the county is no longer dry.

When I moved to Texas in the early 80's, we had something called "Blue Laws". Stores were closed on Sunday...ugh...no shopping. The Texas "Blue Laws" were repealed in the 1985.

Prohibited sales:

clothing, furniture, kitchen utensils, diapers, stoves, refrigerators, air conditioners, electric fans, washers, dryers, radios, televisions, cameras, hardware, power-driven hand tools, jewelry, silverware, watches, clocks, luggage and musical instruments.

These laws were horrible because Sunday was "shopping day" for most working Texans. I was single at the time and it really sucked and I felt like I had "lost an entire day".

Blue Laws BTW have been challenged in the Supreme Court and have been found constitutional https://en.wikipedia.org/wiki/Blue_laws_in_the_United_States
https://www.chicagotribune.com/news/ct-xpm-1985-08-26-8502250721-story.html

[sakabatou]

16. I would not trust a word that comes out of his mouth.

[Midnight Writer]

25. I'm with you. They will say whatever benefits them and do whatever benefits them.

[FBaggins]

17. The fight doesn't have to be at the state level, but it probably will be

There's no shot at passing such a law nationally while the filibuster stands... and the law will fall with the next republican majority/president if the filibuster isn't there to keep it from happening.

[tirebiter]

28. The fight will be on all levels

All 50 states and national, coincidentally will be battlefields. City councils, county supervisors, everywhere. They’re in it to win. That’s just a hint at what we will be facing.

[leftyladyfrommo]

20. Kavanaugh doesn't care about the constitution.

All he cares about are his rightwing ideologies

These people have never have been appointed. The are completely unqualified. And stupid.

[lindysalsagal]

22. Gee-the rapist has no opinion on abortion.....

Like I give one shit.

[gldstwmn]

26. Brett Kavanuagh is neither a rapist nor not a rapist.

See how that works?