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Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action

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The Future of Roe v. Wade: 3 Scenarios, Explained

Will a Supreme Court with two Trump-appointed justices overrule the right to an abortion? It’s possible, but not the most likely outcome. Adam Liptak, The Times’s Supreme Court reporter, explains.

There’s a lot of talk that the new Supreme Court, one with two Trump justices on it, might overturn Roe v. Wade. So the court can’t just wake up one morning and say, we’re overruling Roe v. Wade. I think supporters of abortion rights are right to be nervous, but they’re maybe not exactly right about how to be nervous, what to be nervous about. It’s a shorthand, sure, to say Roe v. Wade can be overruled, but that’s not the only, or even the most likely, outcome. Let me take you through the possible scenarios. Let’s call the first category the nuclear options. These are the most extreme and, therefore, least likely scenarios. The first one would flip Roe on its head. Roe says there’s a constitutional right to abortion. The court could say the Constitution prohibits abortion in the interest of protecting fetal life. That would suggest that fetal life is like any other life, so that taking it away would be murder. So if the court were to go in that very unlikely direction, abortion would be outlawed across the nation, and women could not get abortions in the United States legally. A second nuclear option would be for the court to do away with the right to privacy established in a case called Griswold in 1965. “The individual is entitled to some private sector.” That right to privacy is the foundation for Roe v. Wade. If the right to privacy goes, it would do away with the basis for Roe v. Wade and, therefore, Roe v. Wade itself and flip the issue back to the states and allow states to regulate abortion as they wish. The right to privacy has been, and could be, the foundation of many rights, so I don’t think it’s likely the court will go after the right to privacy. A second possibility, and the one everyone’s talking about, is the court could overrule Roe v. Wade. Protesters: “Ho, ho, Roe v. Wade has got to go. Hey, hey, ho, ho.” So in a post-Roe world, you still have a right to privacy. But that right to privacy does not include a constitutional right to abortion. States would be free to do what they wanted. And some advocacy groups say perhaps 22 states could make abortion illegal entirely. That’s probably not going to happen anytime soon. Protesters: “Hey, hey, Roe v. Wade is here to stay.” Chief Justice John Roberts is an incrementalist. He takes things step by step, and I don’t think his first impulse is going to be, let’s overrule Roe v. Wade when there are other ways to get from here to most of the way there. The last scenario, and the most likely one, is for the court to chip away at Roe v. Wade. The court has already upheld some restrictions on abortion. “The 5 to 4 majority upheld a ban on performing abortions in public facilities.” “The U.S. Supreme Court today upheld the nationwide ban on partial-birth abortion.” “Medication abortion is now effectively blocked in Arkansas.” Much more severe restrictions on abortion rights are a perfectly imaginable scenario when we have a new Supreme Court. Here’s how that could happen. States cannot impose an undue burden on women’s right to abortion. That’s a fairly malleable standard, and it wouldn’t be hard for the Supreme Court to keep it in place, but interpret it slightly differently and say states can impose such restrictions. A couple of years ago, the court heard a case from Texas. And had the court sustained the Texas law, the number of clinics in Texas would have dropped from about 40 to about 10. And that could rapidly diminish the ability of women to get abortions because the nearest abortion clinic, at a minimum, could be hundreds of miles away. It’s a little hard to answer exactly what life will look like in a given state because we’ll have a patchwork of laws. But what’s for sure is that women in red states, and particularly poor women in red states, will have a much harder time getting abortions as each successive abortion restriction is sustained by a court that now has a solidly conservative majority.

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Will a Supreme Court with two Trump-appointed justices overrule the right to an abortion? It’s possible, but not the most likely outcome. Adam Liptak, The Times’s Supreme Court reporter, explains.CreditCredit...Illustration by Natalie Reneau

WASHINGTON — As a White House lawyer in the Bush administration, Judge Brett Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land,” according to a secret email obtained by The New York Times.

The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee but deemed “committee confidential,” meaning it could not be made public or discussed by Democrats in questioning him in hearings this week. It was among several an unknown person provided to The New York Times late Wednesday.

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

[Read the email.]

He was presumably referring to then-Justices William Rehnquist and Antonin Scalia, along with Justice Clarence Thomas, conservatives who had dissented in a 1992 case that reaffirmed Roe, Planned Parenthood v. Casey. The court now has four conservative justices who may be willing to overturn Roe — Justices Thomas and John G. Roberts Jr., Samuel Alito and Neil Gorsuch — and if he is confirmed, Judge Kavanaugh could provide the decisive fifth vote.

Still, his email stops short of saying whether he personally believed that the abortion rights precedent should be considered a settled legal issue.

[Related Coverage: Kavanaugh Is Pressed on His Knowledge of Bush-Era Disputes]

Democrats have complained about relying on Mr. Bush’s lawyer rather than the National Archives to decide what to provide to the Senate, as one part of a larger fight over how many documents from Judge Kavanaugh’s years in the Bush administration the Senate and public should be able to vet before his confirmation vote.

A White House spokesman, Raj Shah, had no immediate comment on the disclosure of the secret files. But late on Wednesday, in the context of some of the documents, he condemned the disclosure of “committee confidential” documents as a violation of Senate rules.

Other documents provided to The Times included a document showing that in September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance at the time that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.

[Read: How The Times decides when to publish leaked news.]

On Wednesday, Senator Patrick J. Leahy, Democrat of Vermont, seemed to allude to the existence of such an email, grilling Judge Kavanaugh about whether his testimony at his May 2006 appeals court hearing that he had not seen or heard anything about the Bush administration’s warrantless surveillance program before its existence leaked the previous December was accurate.

[Read the email.]

In another document, Judge Kavanaugh expressed a critical view about some Department of Transportation affirmative action regulations, writing:

“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what is a naked racial set-aside,” he wrote, adding that he thought the court’s four conservative justices at the time would probably “realize as much in short order and rule accordingly.”

[Read the email.]

On Thursday morning, after this article was published, two Democratic senators unilaterally released several other “committee confidential” emails. Senator Cory Booker, Democrat of New Jersey, posted a series of emails about racial issues that included the affirmative action-related email obtained by The Times.

Separately, Senator Mazie K. Hirono, Democrat of Hawaii, on Thursday published a “committee confidential” email about policies for Native Hawaiians that could be of interest not only to Hawaii’s two Democratic senators but to Senator Lisa Murkowski, Republican of Alaska, a key swing vote who guards the interests of Native Alaskans.

In that email, Mr. Kavanaugh questions Native Hawaiians as a protected group like Indian tribes. He wrote that prepared testimony “needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.”

Another document obtained by The Times shed further light on the extent to which Judge Kavanaugh was viewed inside the Bush administration as playing a significant role in trying to get a disputed appeals court nominee, Charles W. Pickering Sr., confirmed.

During his own appeals court nomination, Judge Kavanaugh had distanced himself from that nomination, omitting it from a list of the major ones he worked on and telling senators that it was not one of those he “primarily” handled, and in August Democrats — based on documents they were allowed to make public — had accused him of having been misleading, while hinting that more details were in the still-confidential documents.

Judge Pickering, who retired in 2004, later told National Review that another White House lawyer, Noel Francisco, the current solicitor general, was his liaison and that he did not recall interacting with Judge Kavanaugh or knowing his name at the time.

But one of the newly obtained documents shows that when another White House lawyer, Brad Berenson, was invited to a meeting in March 2002 with two top Republican senators, he referred to both Judge Kavanaugh and Mr. Francisco as two colleagues who were “much more involved" in that nomination.

“I could probably make it, but Brett and Noel have been much more involved in the Pickering fight, which is what I assume this is about,” Mr. Berenson wrote.

[Read the email.]

In another email, analyzing a complex May 2003 ruling by a panel of three district court judges about a campaign-finance disclosure law, Judge Kavanaugh appeared to exhibit hostility to a rule that corporate and union funds could not be used to pay for issue ads that attacked or supported a specific candidate for federal office; instead funding for such ads would have to come from separate funds and be disclosed to the Federal Election Commission.

Noting that rule was arguably more expansive than another part of the regulations the panel had struck down, Judge Kavanaugh wrote that the decision by two of the judges to uphold that rule was “both strange and dangerous.” Fortunately, he added, the Supreme Court was likely to take a fresh look at the issue and would “not care” what the lower-court judges thought.

[Read the email.]

And in yet another, he offered advice for an appeals court nominee who was scheduled to meet with two Democratic senators:

“She should not talk about her views on specific policy or legal issues,” he wrote. “She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.”

[Read the email.]

Nicholas Fandos contributed reporting.

Follow Charlie Savage on Twitter: @charlie_savage.

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