Supreme Court nominee Brett Kavanaugh avoided drawing a line in the sand on landmark healthcare issues—such as the legality of the ACA—in the same way his predecessors also declined to comment during the confirmation process on cases that they could end up litigating.
Kavanaugh was questioned on several healthcare-related issues on his second day before the Senate Judiciary Committee; notably the Affordable Care Act and abortion rights. Critics of Kavanaugh have expressed concern that his confirmation—which would notably skew the court to the right—could lead the court to overturn precedent on those matters.
Wednesday's hearing was no less contentious than its opening day, with many of the senators questioning Kavanaugh dealing with interruptions from protesters, the majority of which spoke on healthcare issues.
Sen. Sheldon Whitehouse, D-R.I., asked if Kavanaugh would uphold consumer protections in the ACA, and Kavanaugh demurred.
“I can’t give assurances on a specific hypothetical,” Kavanaugh said.
.@SenWhitehouse: "In my office, you told me you could provide no assurance to me that you would uphold a statute requiring insurance companies to provide coverage for pre-existing medical conditions. Is that still true, in public?"— Alliance for Justice (@AFJustice) September 5, 2018
Kavanaugh wouldn't answer. #WhatsAtStake pic.twitter.com/lNRWHqRI5V
By declining to take an official stance on certain issues, Kavanaugh said he was following the "Ginsburg standard"—named after current Justice Ruth Bader Ginsburg—as have many of his predecessors. In her 1993 confirmation hearings, Ginsburg declined to offer “previews” of how she might rule on certain cases, as it would undermine the judicial process.
Kavanaugh has weighed in on the ACA before, however. In 2011, as a D.C. federal court judge, he dissented on a ruling that upheld the law, dodging the legality of the ACA itself but instead arguing that the Republican-led lawsuit should have been dismissed as the court did not have jurisdiction on the matter.
Though Kavanaugh said he was sticking to her "standard," Ginsburg did affirm her personal support for abortion rights in her confirmation hearings, while later appointees Samuel Alito, John Roberts, Sonia Sotomayor, Elena Kegan and Neil Gorsuch did not elaborate on their own abortion views, ABC News reported.
Ranking member Dianne Feinstein, D-Ca., asked Kavanaugh directly where he stands on Roe v. Wade—the 1973 landmark decision that established the constitutional right to privacy extended to abortion—and he said the ruling is an “important precedent of the Supreme Court” that has been reaffirmed in a number of cases since, notably Planned Parenthood v. Casey in 1992.
“I understand the importance of the issue. I understand the importance that people attached to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh said. “I don’t live in a bubble—I live in the real world, and I understand the importance of the issue.”
Roe v. Wade is "settled as a precedent of the Supreme Court entitled the respect under principles of 'stare decisis,'" Brett Kavanaugh tells @SenFeinstein, referring to the doctrine of following judicial precedent. "It has been reaffirmed many times over the past 45 years." pic.twitter.com/US0AZVgxGY— PBS NewsHour (@NewsHour) September 5, 2018
Groups in opposition to Kavanaugh’s confirmation, such as Planned Parenthood, warned that merely noting the Roe decision’s long history as precedent doesn’t necessarily mean it could not, or would not, be overturned on his watch.
Abortion rights activists have been among Kavanaugh’s loudest opponents. Planned Parenthood’s advocacy arm launched a $6 million ad campaign in tandem with the start of Kavanaugh’s hearings, with television spots to air in Washington, D.C., and Alaska, which is home to Sen. Lisa Murkowski, a crucial Republican swing vote.
Kavanaugh was also questioned on his dissent in a case where an immigrant teen was granted an abortion after the Department of Health and Human Services sought to block her access. It’s the only abortion case he’s ruled on to date.
Kavanaugh argued that the government’s request—that the young woman, referred to as Jane Doe, be transferred to an immigration sponsor to discuss her options before undergoing the procedure—did not constitute an undue burden on access. His ruling was overturned by the full D.C. Circuit Court, and in his dissent to that decision, Kavanaugh argued that he had originally ruled in line with Supreme Court precedent.
“I did my level best in an emergency ... to follow precedent,” he told senators on Wednesday. “I always try to do be as careful as I can in following precedent of Supreme Court.”