Watching Supreme Court nominee Brett Kavanaugh testifying before the Senate Judiciary Committee, legal analyst Rebecca Buckwalter-Poza noticed something curious: In his exchanges with Democratic legislators, Kavanaugh seemed incapable of mentioning Roe v. Wade, the landmark 1973 abortion decision, without also mentioning Planned Parenthood v. Casey, the lesser known but equally important 1992 ruling on how individual states could (and could not) regulate abortion.
Asked, for example, by Sen. Dianne Feinstein of California, the committee’s ranking Democratic member, how he viewed “a woman’s right to choose” to terminate a pregnancy, Kavanaugh made a point of quickly turning from Roe to Casey, which he called “precedent upon precedent.”
Kavanaugh cited Casey again when questioned later that day by Dick Durbin, Democrat of Illinois, about his dissent in Garza v. Hargan, the case of a 17-year-old undocumented immigrant seeking an abortion in Texas. In his only abortion-related opinion, Kavanaugh wrote that the young woman needed to find an immigration sponsor in order to fulfill a parental consent requirement, despite that requirement having been waived by a lower court judge.
“Precedent is not like a cafeteria,” Kavanaugh said when questioned about that dissent, which appeared to have improved his standing with the conservative groups that have largely guided Trump’s judicial appointments. And those appointments have proceeded apace even as other aspects of Trump’s agenda have faltered.
Buckwalter-Poza, who successfully sued President Trump for blocking Twitter users, seized on this exchange, which she identified as key to Kavanaugh’s strategically unclear views on reproductive rights. “Contra Kavanaugh’s claim he can’t offer any hints or forecasts, his fondness for bringing up Casey does just that,” wrote Buckwalter-Poza, who obtained her law degree from Yale and provides legal analysis to the Daily Kos, a liberal political site. “If Kavanaugh’s confirmed, states will have free rein to eliminate abortion access via increasingly draconian laws.”