President Biden’s Supreme Court nominee Ketanji Brown Jackson called the high court’s landmark 1973 decision in Roe v. Wade recognizing a constitutional right to abortion “settled law,” noting it has been repeatedly reaffirmed by the court and “relied upon.”
Under questioning from Sen. Dianne Feinstein (D-Calif.), Jackson was asked if she agreed with statements that Justices Brett Kavanaugh and Amy Coney Barrett made about abortion law precedent during their confirmation hearings.
Kavanaugh, during his hearing, said Roe “is settled as a precedent of the Supreme Court” and had been “reaffirmed many times” over the intervening decades, most prominently by the court’s 1992 decision in Planned Parenthood v. Casey, Feinstein noted.
Feinstein also said that Barrett, in her 2020 confirmation hearing, vowed to “obey all the rules of stare decisis” — the legal principle of general deference to past decisions — and that she had “no agenda to try to overrule Casey.”
Jackson replied that she agreed with the statements by Kavanaugh and Barrett.
“Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” she said. “They have established a framework that the court has reaffirmed, and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle.”
“It provides and establishes predictability, stability, it also serves as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon whether they’re workable, in addition to whether or not they’re wrong, and other factors as well,” she said. “So I agree with both of those statements that you read.”
The Supreme Court is expected to decide in coming months the lawfulness of Mississippi’s 15-week abortion ban, which poses a direct clash with Roe, which bars states from prohibiting abortion before a fetus is viable, typically around 24 weeks.
A tense Supreme Court hearing in the case in December suggested the conservative-majority court is willing to place new restrictions on abortion.
During oral arguments, Barrett said stare decisis was not an “inexorable command” and added: “There are some circumstances in which overruling is possible.”
Kavanaugh, who along with Barrett and Chief Justice John Roberts is considered a key vote, seemed somewhat sympathetic to Mississippi’s argument that abortion is a matter best left to the states.