The judge made this statement during an exchange with Sen. Ted Cruz (R-TX) regarding “the foundations of the unenumerated rights doctrine.” The term “unenumerated rights” refers to rights, such as the right to an abortion, which are not explicitly named in the Constitution’s text, but which the Supreme Court has held to be implicit in that text.
According to Kavanaugh, “all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test” to determine the scope of these unenumerated rights.
“Glucksberg” means Washington v. Glucksberg, a 1997 Supreme Court decision holding that the Constitution does not protect a right to physician-assisted suicide. According to Chief Justice Rehnquist’s opinion for the Court in Glucksberg, the question of which unenumerated rights are protected by the Constitution should be answered by asking which rights are “deeply rooted in this Nation’s history and tradition.”
We don’t have to guess, however, whether Judge Kavanaugh thinks that a constitutional right to abortion is grounded in this Glucksberg test, because he’s already answered that question. As law professor Jim Oleske points out on Twitter, Kavanaugh said in his 2017 speech to the conservative American Enterprise Institute that “even a first-year law student could tell you that the Glucksberg’s approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe vs. Wade in 1973, as well as the 1992 decision reaffirming Roe, known as Planned Parenthood vs. Casey.”
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For what it’s worth, Kavanaugh’s statement that “all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test” is incorrect. As law professor Jamal Greene first pointed out on Twitter, Glucksberg was “explicitly disavowed in Obergefell,” the Supreme Court’s 2015 marriage equality decision.
According to Obergefell, Glucksberg “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”
Kavanaugh’s apparent endorsement of Glucksberg as the sole test for determining unenumerated rights, in other words, threatens a whole lot more than the right to an abortion. It also suggests that he believes that a wide range of Supreme Court decisions governing sex, romantic relationships, and intimacy were wrongly decided.
Judge Kavanaugh appears to be telegraphing his belief that Roe, Obergefell, and the Supreme Court’s decision in Lawrence v. Texas, which provides that the government cannot prosecute consenting adults for having sex, were not correctly decided.
