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Ketanji Brown Jackson calls Roe ‘settled law’ on ‘terminating pregnancy’

Katie Yoder By Katie Yoder for CNA

U.S. Supreme Court nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 22, 2022 in Washington, DC. (Kevin Dietsch/Getty Images.)

Washington D.C., Mar 22, 2022 / 15:56 pm (CNA).

Supreme Court nominee Ketanji Brown Jackson called Roe v. Wade — the 1973 Supreme Court decision that legalized abortion nationwide — “settled law” during her confirmation hearings on Tuesday. She avoided the word abortion, instead referring to “the right to terminate a woman’s pregnancy.”

Jackson, the federal judge nominated by President Joe Biden to replace retiring Justice Stephen G. Breyer, made her remarks March 22 after Democratic Senator Dianne Feinstein of California asked her about abortion.

Feinstein remembered asking the three most recent Supreme Court nominees — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — about abortion during their respective confirmation heraings.

“Do you agree with Justice Kavanaugh that Roe v. Wade is settled as a precedent and will you, like Justice Barrett, commit to obey all the rules of stare decisis in cases related to the issue of abortion?” Feinstein wanted to know.

These are two terms the legal profession frequently uses: “precedent” refers to a court decision that is considered an authority when deciding similar, subsequent cases, while “stare decisis” is the doctrine that courts will adhere to precedent, according to Cornell Law School.

Both encourage the courts to consider and build upon past rulings when deciding newer cases so that they agree with, rather than contradict, each other.

“I do agree with both Justice Kavanaugh and Justice Barrett on this issue,” Jackson said. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy.”

Feinstein signaled her intent to ask Jackson about abortion on Monday. Her question comes as the Supreme Court prepares to issue a ruling this year in Dobbs v. Jackson Women’s Health Organization, a case out of Mississippi that directly challenges Roe v. Wade.

In Roe v. Wade, the court ruled that states could not ban abortion before viability — or before a baby can survive outside the womb. Nearly 20 years later, the court upheld Roe in Planned Parenthood v. Casey. The 1992 ruling said that while states could regulate pre-viability abortions, they could not enforce an “undue burden,” defined by the court as “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Roe and Casey, Jackson said, “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.”

Feinstein asked a follow-up: “Does Roe v. Wade have the status of being a case that is a super precedent and what other Supreme Court cases do you believe have that status?”

In response, Jackson called all Supreme Court cases “precedential” and “binding.”

“Roe and Casey, as you say, have been reaffirmed by the court and have been relied upon,” she said. “And reliance is one of the factors that the court considers when it seeks to revisit, or when it’s asked to revisit, a precedent.”

In a later exchange with Senator Ben Sasse, a Republican of Nebraska, Jackson said, “after Casey, the court has determined not so much that the right to terminate a woman’s pregnancy is fundamental; the right exists and it’s subject to the framework in Casey that allows for regulation so long as there is not an undue burden on the exercise of the right, pre-viability.”

Pro-life leaders have expressed concern with Jackson’s past in regards to abortion. In addition to having the support of abortion groups for her nomination, Jackson co-authored an amicus brief in 2001 in support of a Massachusetts law that created a “buffer zone” preventing pro-life sidewalk counselors from approaching women outside of abortion clinics, according to Susan B. Anthony List. Jackson’s past clients include pro-choice groups such as NARAL and the Abortion Access Project of Massachusetts.

In a letter dated March 21, a coalition of nearly 40 national and state pro-life leaders led by SBA List expressed concerns about Jackson’s record on abortion to the chairs of the Senate Judiciary Committee.

“Ketanji Brown Jackson’s record of hostility to pro-life Americans is radically out of step with the majority of the country,” Marjorie Dannenfelser, the president of SBA List said in the accompanying press release. “Her nomination fulfills Joe Biden’s promise to only appoint justices who support the Roe v. Wade regime and his party’s broader agenda of abortion on demand up to birth, without limits of any kind.”

“We urge senators to stand with unborn children and their mothers and reject this nominee,” she said.

Other Catholic and pro-life leaders have added that Jackson clerked for Breyer at the Supreme Court when he issued an opinion in Stenberg v. Carhart, which struck down a Nebraska law banning “partial-birth” abortion in 2020.

In a statement following the first day of confirmation hearings, Lila Rose, founder and president of pro-life group Live Action, commented that “there is no right to abortion in the Constitution.”

“On the contrary, there IS a right to equal treatment under the law for ALL,” she said. “Understanding that should be the absolute minimum bar for a prospective Justice on our nation’s highest Court.”


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9 Comments

  1. If Roe is “settled law” then the decision in Dred Scott v. Sanford, the 1857 Supreme Court ruling that declared that black people weren’t fully human should also be “settled law,” according to Jackson’s reasoning. The decision in Dred Scott was overruled in 1868 by the passage of the 14th Amendment. And, Roe can be overturned by the current Supreme Court. Bad decisions, even by the Supreme Court, can be overturned by future Supreme Courts or by Amendments to the Constitution. The fact that this has escaped Judge Jackson should be a red flag to the Senate when considering her nomination to SCOTUS. I pray that this Court overturns Roe and closes the open season on the unborn in the United States of America.

    • I agree that any aspect of the Constitution, or Supreme Court interpretation thereof, is subject to reversal. By either amendment or Court dispensation.
      Brown overturned settled law in Plessy v. Ferguson via SCOTUS, so Roe could be as well. However, as long as we worship at the altar of individual rights, the problem will remain. The nominee may very well be right in terms of normative interpretations of the document.

    • By the way, Dred Scott did not declare “that black people weren’t fully human.” It only said that they lacked standing to sue in federal court. And, as you stated, it was abrogated by a Constitutional amendment.

    • I concur. Dred Scott and Roe are both unjust precedents. Any human with a clear intellect should surely see the stark and essential equivalence between the two.

      A civilized society should deny any person the position of “judge” when that person lacks basic reason and common sense. A judge or a society unable to see and support such fundamental distinctions as human/non-human, slave/free, death/life, good/non-good enables descent into increased disorder, chaos, and violent civil unrest.

      • Dred Scott was NOT unjust. It may have been in error, but it was in no way unjust. The question of whether one has “standing” to sue is a question of jurisprudence. Roger Taney–the first Catholic SCOTUS justice for a very long while–is considerably smarter than ourselves I warrant. Roe on the other hand, the Opinion, is simply stupid or deranged. But if Roe is wrong, so is Griswald. We on this website might cheer, but I doubt that the Potomac talking heads will feel the same.

  2. Thank you Donna Jorgenson Farrell great answer to her ridiculous statement. It all depends on who has the most votes to bring down this draconian law once and for all. Bring America back to God by striking down Roe versus Wade. God will shower America with many blessings! God Bless You Donna Jorgenson Farrell. PRAY! PRAY! PRAY!

  3. Nominal premise proves she is totally unfit to excercise jurisprudence at any level, let alone the highest level in the land.

    But of course everybody knows that. It’s never been about “fitness to exercise jurisprudence.”

  4. Jackson said. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a “Woman’s” pregnancy. Wait A Minute! She can’t define what is a “woman”! Jackson isn’t qualified for a seat on the Supreme Court.

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