Senator Susan Collins of Maine reported that President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, had assured her that Roe v. Wade, the 1973 case affirming a woman’s constitutional right to choose abortion, was “settled law.” The implication was that Collins, who has indicated support for a right to choose, could vote for his confirmation without worrying about Roe or women’s reproductive rights.
Does it mean that? I haven’t been able to find a clear definition of the term, but in 1976, Justice John Paul Stevens wrote, “The Court seldom takes a case merely to reaffirm settled law.”
So maybe there’s a functional definition. “Settled law” means law the Court hasn’t decided to overturn just yet.
Do reproductive rights fall into that category? Consider a recent abortion-rights decision by the Eleventh Circuit. West Alabama Women’s Center v. Williamson is a challenge to a state law banning a safe, common method of second-trimester abortion, which physicians call “dilation and evacuation.” Under Supreme Court precedent, the law is flatly unconstitutional. Here’s how Ed Carnes, the chief judge of the Eleventh Circuit, explained his apparently grudging decision to follow that precedent: “Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.” For the rest of the opinion, Carnes waxed eloquent in his distaste for the challenged procedure, which he called “dismemberment abortion.” Then, between clenched teeth, he concluded, “In our judicial system, there is only one Supreme Court, and we are not it. As one of the ‘inferior Courts,’ we follow its decisions.”