Since Justice Anthony Kennedy announced his retirement from the Supreme Court late last month, abortion activists and liberal politicians and pundits have warned that President Donald Trump’s pick will put Roe v. Wade at risk. Now that liberals have a name to put on the protest placards, the attacks are focused on the record of Trump’s nominee, Brett Kavanaugh.
Within hours of Trump’s Monday-night announcement that he had selected the D.C. Circuit Court of Appeals judge to fill the high-court vacancy, the barrage had begun. Planned Parenthood issued a press release demanding the Senate reject Trump’s nominee, claiming that:
Judge Kavanaugh has already ruled to limit access to safe, legal abortion — just last year, he used his judicial power to try and prevent a young, undocumented woman in U.S. custody from accessing the safe, legal abortion she had asked for. In fact, Kavanaugh would have allowed the government to delay the young woman’s abortion by more than one month, pushing her pregnancy into the second trimester. Fortunately, the full court on which Kavanaugh sits intervened and allowed the young woman to access the health care she needed.
Senator Kamala D. Harris likewise declared her opposition to the Trump nominee in a press release but proved more circumspect in naming abortion as the reason:
Judge Kavanaugh has consistently proven to be a conservative ideologue instead of a mainstream jurist. As recently as last year, he disregarded Supreme Court precedent and opposed the health care rights of a vulnerable young woman. That ruling was overturned by a sitting of all the judges on his court.
Behind Harris’ “health care” euphemism, however, lies the same unnamed case highlighted by Planned Parenthood — Garza v. Hargan — and the same deceptive talking points pushed by the nation’s largest abortion provider.
Unless dispelled, the Left’s false narrative of Kavanaugh’s Garza decision will quickly take hold in the public’s conscious. So let’s set the record straight.
The Garza case first made headlines in October 2017, when the ACLU filed suit against the Trump administration on behalf of Jane Doe, represented at the time by her guardian, Rochelle Garza. Doe, an unaccompanied pregnant minor from Central America illegally present in the United States, sought release from the federal shelter where she was being detained to obtain an abortion. The government, through Eric Hargan, the acting secretary of the Department of Health and Human Services, maintained it had no obligation to facilitate Doe’s abortion, stressing that Doe had the option of returning to her native country or, alternatively, being released to a sponsor.
The government maintained it had no obligation to facilitate Doe’s abortion, stressing that Doe had the option of returning to her native country or, alternatively, being released to a sponsor.
A federal trial judge ruled in Doe’s favor, finding that the government’s refusal to release a minor from custody constituted an “undue burden” on Doe’s constitutional right to an abortion. The Trump administration appealed to the D.C. Circuit, and on appeal, Judge Kavanaugh authored the majority opinion reversing the lower court’s decision. The majority opinion began by assuming an illegal alien detained at the border holds a constitutional right to an abortion under Roe and Planned Parenthood v. Casey. The Hargan majority then analyzed the government’s position — that the constitution did not require the government to facilitate Doe’s abortion, because Doe had the option of returning home or being placed with a sponsor. While no sponsor had been found to date, the government represented to the federal appellate court that it had identified a potential sponsor for Doe.
Writing for the court, Kavanaugh concluded that “so long as the process of securing a sponsor to whom the minor is released occurs expeditiously,” the government does not unduly burden the minor’s right to an abortion under Roe and Casey. The opinion then gave HHS twelve days to release Doe to a sponsor.
The ACLU immediately asked the full D.C. Circuit to reconsider the Garza holding, and without hearing argument in the case, the full court rejected Judge Kavanaugh’s view and ordered the government to immediately release Doe to obtain an abortion. Kavanaugh dissented from the full court decision, and two other circuit-court judges joined his dissent.
In his dissent, Kavanaugh criticized the majority for creating “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.” This approach, Kavanaugh explained, “is radically inconsistent with 40 years of Supreme Court precedent.”
Kavanaugh then highlighted the “wide variety of abortion regulations that entail some delay in the abortion but that serve permissible Government purposes,” “includ[ing] parental consent laws, parental notice laws, informed consent laws, and waiting periods, among other regulations. Those laws, of course, may have the effect of delaying an abortion.” Yet “the Supreme Court has upheld those laws, over vociferous dissents,” Kavanaugh wrote.
An honest reading of his dissent makes clear that Kavanaugh did not ignore Roe or Casey — he faithfully applied the controlling precedent and the “undue burden” test. Kavanaugh also did not use “his judicial power to try and prevent” a girl from having an abortion; rather, he held that the government did not unduly burden Doe’s right to an abortion by allowing the government the opportunity to expeditiously release her to a sponsor.
And there is one last detail abortion activists won’t tell you about the Garza case: It is no longer good law, because the Supreme Court unanimously vacated the full D.C. Circuit’s decision in Garza after the ACLU rushed Doe to an abortion clinic before the government had the opportunity to appeal to the United States Supreme Court. Had the justices had the opportunity to weigh in on the Garza case, they might well have vindicated Kavanaugh’s actual view of controlling precedent — and not the distorted sound bites abortion activists are peddling.