Supreme Court Justice Brett Kavanaugh revived hope on Monday that Roe v. Wade, the controversial Supreme Court case that legalized abortion nationwide, may one day be overturned.
Whether or not Kavanaugh would follow the legal practice of stare decisis was a central issue during his Senate confirmation. Kavanaugh affirmed the principle, indicating that he would continue to uphold court precedent. In fact, in his early days on the court, Kavanaugh voiced concern for overturning long-established precedents.
On Monday, however, Kavanaugh indicated that he may have since changed his perspective.
Writing in a concurring opinion unrelated to abortion, Kavanaugh addressed how he believes the court should handle "erroneous precedents" — and in doing so, invoked abortion.
Despite the widely held belief that the court should not overturn precedents, Kavanaugh said the Supreme Court has a long history of overturning previous court decisions, especially in high-profile cases. With regard to abortion, Kavanaugh noted the 1992 case Planned Parenthood v. Casey, though it affirmed abortion rights, overturned major parts of Roe v. Wade.
"In Casey, the Court reaffirmed what it described as the 'central holding' of Roe v. Wade," Kavanaugh explained, "the Court expressly rejected Roe's trimester framework, and the Court expressly overruled two other important abortion precedents."
Kavanaugh then wrote, "As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an 'inexorable command.'"
Still, the comments do not give definite insight as to how Kavanaugh would vote if the court revisits the central merits of either Roe v. Wade or Planned Parenthood v. Casey.
But, between Kavanaugh's comments along with the opinion of Justice Neil Gorsuch — who wrote that "stare decisis isn't supposed to be the art of methodically ignoring what everyone knows to be true" — and Justice Clarence Thomas last year, the conservative-leaning court has signaled that it is open to overturning established precedents, fueling speculation that abortion could be on life-support.