Earlier today, reading an email from FactCheck.org https://mailchi.mp/factcheck/factcheckorg-weekly-update-tqvivpiak8?e=2e45e37b21
I clicked a link that led here: http://www.aei.org/wp-content/uploads/2017/12/From-the-Bench.pdf
It’s from the 2017 Walter Berns Constitution Day Lecture to the American Enterprise Institute, given by Brett M. Kavanaugh
Fourth is the Court’s power to recognize unenumerated rights. A few months after he joined the Court in 1972, Justice Rehnquist faced an oral argument about the constitutionality of a state law prohibiting abortion in the case of Roe v. Wade. Rehnquist, along with Justice Byron White, ultimately dissented from the Court’s seven-two holding recognizing a constitutional right to abortion.
Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion even where the mother’s life was in jeopardy would violate the Constitution. But otherwise he stated the states had the power to legislate with regard to this matter.
In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition. The 1997 case of Washington v. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right.
[Emphasis added]
I’ll assume Kavanaugh approves of Rehnquist restrictions of what unenumerated rights the courts could recognize (the only disagreement I can imagine Kavanaugh having is that he might think Rehnquist’s restrictions aren’t strict enough).
I happen to have a good bit of insight into what the “nation’s history and tradition” said and actually did about abortion at the time Roe v Wade was adjudicated. I was in my second year of Yale Medical School at the time, and a few months after the decision was handed down I started my rotation on the Obstetrics and Gynecology service. The professors were relieved, and hoped they’d seen the end of botched abortion cases. What the laws were just before Roe v Wade varied. I believe Connecticut had one of the most restrictive laws on abortion, but it was available on demand in New York, a ninety minute train ride from New Haven. But even at Yale-New Haven Hospital, a woman could get an abortion IF someone powerful was pulling strings for her. An older OB-GYN professor, a longtime member of the Connecticut inner circle of good old boys, told my group of medical students on the OB-GYN rotation a story. He said that for years, he’d get occasional phone calls from his old friends that would start in a peculiar tone of voice that he’d learn to recognize. He said they’d start out saying something like, “David, (his name, no relation) you know I hate to eat crow…” and he’d finish the sentence for them, “But your daughter’s pregnant and needs an abortion. Right?” He said he could almost hear their jaws drop over the phone.
THAT has been the nation’s history and tradition as long as abortions became safe under medical conditions. It’s a tradition of ugly hypocrisy. The daughter or mistress of a man with influence or money could get a safe, private abortion, despite whatever pretense daddy or sugar daddy maintained in public. A woman without connections or much money was often stuck in a situation desperate enough that she had to take a chance on some back-alley abortion that would likely still be expensive just because it was illegal, and that could leave her dead or with an infection that would make her sterile.
Abortions have been common all along. As I remember, Ronald Reagan was shocked to learn that in some years abortions outnumbered live births. Laws prohibiting abortion were no more effective than Prohibition was at preventing alcohol consumption in the 1920’s. The big difference, that forced people and legislatures to confront the failure of Prohibition, was that supplying the demand for illegal alcohol required major logistical support. It took caravans, shiploads, even train loads of booze to keep the speakeasies supplied. Maintaining the supply chain was what “filled the land with vice and crime”. Meeting the demand for illegal abortions, in contrast, required only a private room, some medical instruments, and somebody who knew how to do the procedure – or thought he knew. Available abortions, legal or not, have long been part of the nation’s “history and tradition”.
Hypocrisy about abortion has also been a part of our “history and tradition”. All along, if ‘Little Orphan Annie’ needed an abortion, ‘Daddy Warbucks’ might give her a stern lecture but he’d have no trouble or hesitation in finding her a good doctor. In contrast, a girl without money or resources wouldn’t just get grounded by Daddy Warbucks, she could end up deathly ill. I’m convinced the seven justices in the majority on Roe v Wade saw this as untenable discrimination against the poor and powerless.
But William Rehnquist didn’t see it that way. And Brett Kavanaugh admires him for it.