Almost immediately after Justice Anthony Kennedy announced his retirement from the Supreme Court last month, attention turned to one particularly divisive question over the last four decades: How would his replacement vote on abortion rights cases?
Brett Kavanaugh, a federal appeals court judge who was nominated by President Donald Trump on Monday to succeed Kennedy, is a solidly conservative jurist — and most likely not as much of a moderate on social issues as Kennedy, a crucial swing vote, was.
But Kavanaugh's record of public statements and legal decisions on abortion rights is relatively thin.
That makes it difficult to say with certainty whether he would vote to overturn Roe v. Wade, the landmark 1973 ruling that established a constitutional right to abortion. At the same time, some of his statements and decisions provide a rough — if necessarily incomplete — sketch of his general views on the issue.
"My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law," Kavanaugh said in his remarks from the East Room of the White House on Monday night. If confirmed, Kavanaugh — who paid tribute to his family in his speech, especially his two daughters — would be one of six men on the nine-justice court.
Kavanaugh's track record
In his confirmation hearing in May 2006, Kavanaugh was asked by Sen. Chuck Schumer, D-N.Y., if he considered Roe v. Wade to be an "abomination."
"If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court," Kavanaugh said, referring to the legal principle of stare decisis. "It's been decided by the Supreme Court."
But when Schumer pressed Kavanaugh for his personal opinion of Roe, Kavanaugh did not directly answer, instead saying that the Supreme Court had upheld Roe "repeatedly" and that it would not be "appropriate" to share his own views.
In his time on the bench, Kavanaugh has not written or commented on abortion in any great detail. But last October, he took part in a high-profile court fight involving a pregnant undocumented teenager who wanted to obtain an abortion.
The appeals court ruled that the teenager could temporarily leave government custody for an abortion procedure. In his dissent, Kavanaugh said the Trump administration conceded that the teen had a right to an abortion, but he argued that the court was wrong to conclude she had the right to "an immediate abortion on demand."
He said delaying the procedure until she could be released to a U.S. sponsor would not impose an undue burden on the abortion right — a position that some conservative activists have since criticized as insufficiently hard-line. (Karen LeCraft Henderson, one of Kavanaugh's more conservative colleagues, wrote in a separate dissent that the teenager had no right to an abortion at all because she was not a citizen.)
The looming political fight
Kennedy's retirement set up what is likely to be a bitter political fight over abortion heading into the fall midterm elections.
Abortion rights advocates, who issued dire warnings after Kennedy announced his departure, blasted Kavanaugh's nomination on Monday night.
"There's no way to sugarcoat it," said Dawn Laguens, the executive vice president of Planned Parenthood Federation of America. "With this nomination, the constitutional right to access safe, legal abortion in this country is on the line."
"We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so," Laguens said, referring to Trump's promise during the 2016 presidential campaign to nominate "pro-life justices" whose votes would undo Roe "automatically."
But opponents of abortion rights, many of whom saw Kennedy's retirement as a once-in-a-generation chance to reshape the ideological thrust of the court, praised the nomination.
"We thank President Trump for delivering on his campaign promise by choosing another Gorsuch-like nominee," said a statement from March for Life, a group that opposes abortion rights.
The political divide was on stark display outside the Supreme Court ahead of Trump's announcement. Groups of people holding yellow "Abortion is Murder" signs stood next to others holding signs like "Protect Roe/Don't criminalize abortion" and "Civil rights are on the line."