Brett Kavanaugh's One Abortion Case

In October 2017, I went to court to stop the Trump administration from blocking a young immigrant from obtaining an abortion. She had crossed into the United States the month before and discovered she was pregnant soon after. She never had any doubt about what she wanted to do. But the Trump administration had other plans for her. 

Her plea, which I relayed to a three-judge appeals panel, was: “Please stop delaying my decision any longer.” That panel included Judge Brett Kavanaugh, and her plea went unheeded.  

In the only abortion case heard by President Trump’s nominee to the Supreme Court, Judge Kavanaugh issued a decision that would have forced Jane to further delay her abortion, almost a full month after she first sought it. Ultimately, the full appeals court reversed his decision, ending the government’s obstruction in the dramatic case. 

While Judge Kavanaugh’s decision was cause for concern when it was issued last year, it’s taken on far more importance now, given his nomination to the high court and the clues it provides about how he might shift the course of reproductive rights in this country. Although the ACLU neither endorses nor opposes Supreme Court nominees, we do have an obligation to analyze Kavanaugh's judicial record on areas that impact core civil liberties and civil rights.  

Jane Doe, a pregnant 17-year-old unaccompanied immigrant minor who was abused by her parents in her home country, was effectively held hostage by the government to stop her from accessing abortion. The Trump administration ordered the private shelter where she was staying to prevent her from going to any abortion-related appointments. While the court battle raged, the government's obstructionism pushed Doe further along in her pregnancy against her will. She always remained resolute in her decision to terminate her pregnancy. Yet day after day, she was forced to sit in the shelter, waiting to hear whether she would be able to have an abortion or whether she would be forced to carry the pregnancy to term.   

Although we secured an emergency order from a lower court allowing Doe to have the abortion, the government appealed. Over a vigorous dissent by Judge Patricia Millett, Judge Kavanaugh wrote a decision that allowed the government to further obstruct Jane’s abortion. 

By the time of Judge Kavanaugh’s ruling, the Trump administration had already delayed Doe’s abortion by almost a month. The decision allowed the government to continue to obstruct her abortion while the government looked for a sponsor for Jane, which they had been unsuccessful in finding for the prior month and a half. As Judge Millett put it, there was no “reason to think that a sponsor” could be found in “short order.” As a result, Judge Kavanaugh’s order would force Doe to delay her abortion for “multiple more weeks.” 

Because further delay was clearly unacceptable, we asked the full court of appeals to review the case. It did so, and reversed Judge Kavanaugh’s decision, ordering the government to allow Doe to have an abortion without further delay. 

The full court largely adopted the reasoning in Judge Millett’s dissent, which explained why the panel decision written by Judge Kavanaugh ignored both the harm to Jane and binding Supreme Court precedent. She wrote that forcing Jane Doe to remain pregnant against her will sacrifices her “constitutional liberty, autonomy, and personal dignity for no justifiable government reason.” 

Judge Kavanaugh, for his part, issued his own vigorous dissent from the full court’s opinion, saying the court had “badly erred in this case,” by relying on “a constitutional principle as novel as it is wrong.” He argued that the government should be given time to place Jane with a sponsor so she could be with a family member, notwithstanding the fact that it takes weeks or months to locate a suitable sponsor, that she had already made her decision, that she had obtained a court order allowing her to consent to the abortion on her own, and that she had a court-appointed guardian looking out for her best interests. 

We are at a critical moment in history. President Trump has vowed to appoint Supreme Court justices who would overturn Roe v. Wade. Given that Judge Kavanaugh allowed the government to further obstruct Jane Doe’s access to abortion, we should all be gravely concerned about what his appointment means for the future of Roe.  

But we can’t just limit our focus to the question of whether Roe will be overturned. The right to abortion could also be eviscerated if the court upholds dangerous restrictions on abortion — even short of an outright ban. 

Indeed, Roe didn’t stop Judge Kavanaugh from giving the government a pass to keep obstructing Jane’s abortion access. The right to abortion means nothing if a woman can’t exercise it without shame, stigma, and obstacles. The Senate, therefore, has an obligation to ask Judge Kavanaugh during his confirmation hearing not just whether abortion is constitutionally protected, but how far the government can go to restrict a woman’s access. 

This is not an academic exercise. Jane’s is just one of the stories behind this critical constitutional right. Being forced to remain pregnant for weeks took an emotional and physical toll on her. If the courts weren’t there to stop the Trump administration, what would have happened to her? 

As Doe later said, “I dream about studying, becoming a nurse, and one day working with the elderly.” Every person should have the ability to make the best decision for herself as well as the chance to pursue her dreams without fear of a government official or judge getting in the way. 

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Dr. Timothy Leary

Of course Trump and his minions are against abortion. They are afraid that his presidency is going to be aborted. After the way we was canoodling with the Anti-Christ Putin it seems more likely than ever.

Anonymous

She is an illegal immigrant. Why should American tax payers pay for her abortion? If she wants an abortion, let her go back to where she came from and have her abortion. She is one of many who have no rights here, to benefits for tax paying citizens.

Anonymous

The problem is bigger than her legal status. The problem is whether the government should be allowed to restrict women from making decisions with their body- The answer is no. Save that rhetoric for something more constructive if you're actually concerned about where your tax paying money goes.

Anonymous

Show me where in this article it says taxpayers were paying for ANYTHING related to her medical care. What taxpayers DID have to pay for was the time the courts took trying to block her from having a legal safe PRIVATELY paid for medical procedure.

Anonymous

Tax payers did not pay for her abortion. Charity groups did. It cost $500. It cost way, way more than that for the government to bring her case to court and appeal. Get your facts straight.

Stephen

I have been told that, according to the Constitution, there is exactly one right restricted only to citizens. That is the right to vote.

Anonymous

1. Taxpayers didn't pay for her abortion, the procedure was paid for by donation. 2. Constitutional rights apply to everyone in the US, regardless of immigration status or whether they pay taxes, and this has been affirmed multiple times by SCOTUS. 3. You're a racist moron.

Sherry

Under title X her abortion would not be paid for by any federal funds. Do your research.

Anonymous

So you would rather have the government pay for her to have a child? Wtf is wrong with you? Abortion is legal here and there were groups willing to help her. In case you don’t know, federal money can’t be used for abortion, which I find ridiculous.

Anonymous

Yet another tool who has no idea that the Hyde Amendment means that no tax dollars go for abortion.

And that's to say nothing of the fact that she was an asylee ... which is legal under immigration law.

The ignorance amongst the Trump supporters clearly knows no bounds.

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