Bench Memos

Law & the Courts

On Judge Kavanaugh on Garza v. Hargan

Thanks to Shannen Coffin for his excellent NRO essay refuting a misguided attack on Judge Kavanaugh for “making unnecessary concessions in an illegal alien minor abortion case,” Garza v. Hargan. (I’m quoting the memo from the Judicial Action Group, which Shannen helpfully identifies as “a nonprofit group run by Roy Moore lawyer and campaign spokesman Phillip Jauregui.”) I encourage you to read the full essay, but for context here present an excerpt:

In both a panel decision rejecting the ACLU’s argument and a subsequent en banc dissent, Kavanaugh (joined by Judge Karen LeCraft Henderson in both opinions and by Judge Thomas B. Griffith in the en banc dissent) endorsed the legal position of Donald Trump’s Justice Department. He concluded that requiring the federal government to assist the teenager in getting an abortion would fail to recognize the federal government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He emphatically rejected the creation (by the majority of the D.C. Circuit, sitting en banc) of a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He scoffed at the result in the case, which forced the feds to turn over the child in the wee hours of the morning to permit her to abort her unborn child, calling it “inconsistent with 40 years of Supreme Court precedent” and a “radical extension of the Supreme Court’s jurisprudence.”

Both the Judicial Action Group memo and an anonymous memo that has been circulating in pro-life circles fault Kavanaugh for not joining Judge Henderson’s separate en banc dissent that opined that the unaccompanied alien minor being held in HHS custody did not have a constitutional right to an abortion. I’d like to add an additional rebuttal on top of the points that Shannen makes.

The Judicial Action Group contends that Henderson’s dissent “was the most principled on the issue of life” and faults Kavanaugh for not being “as constititutionally principled as Henderson on the issue.” But that contention is dead wrong: The ground of Henderson’s dissent had nothing to do with “the issue of life” and everything to do with immigration law and the principle that the Constitution’s protections do not extend to unadmitted aliens.

Specifically, Henderson opines that the alien minor, “[d]espite her physical presence in the United States, … has never entered the United States as a matter of law and cannot avail herself of the constitutional rights afforded those legally within our borders.” In short, it is from the general principle that the alien minor has no constitutional rights—not from any principle having to do with “the issue of life”—that Henderson concludes that the alien minor does not have a constitutional right to an abortion.

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