Supreme Court of USA.
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OriginalDumbMan Democratic Sen. Dick Durbin asked Gorsuch about a line in his book on euthanasia and how it might relate to abortion.
Durbin: There is a statement which you made in that book, which has been often quoted, and I want to make sure that I quote it accurately here today. … And I quote, “The intentional taking of human life by private persons is always wrong.” …
How could you square that statement with legal abortion?
Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment, and the book explains that.
Durbin: Do you accept that?
Gorsuch: That is the law of the land. I accept the law of the land, senator, yes.
Kavanaugh: Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.
And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors. That was the question presented in the case.
To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it. In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe.
That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as Glucksberg and other cases. So that precedent on precedent is quite important as you think about stare decisis in this context.
Barrett said that if a question about overturning Roe or Casey or any other case comes before her, “I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors. And I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.”
