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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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.


The taxpayers did not pay for her abortion. It was privately paid for by concerned citizens.. Listen to “Roe v Kavanaugh”, Dahlia Lithwick’s Amicus podcast, which gives all the details on this case.

Anonymous Rebec...

Her legal status is not the issue.


1. She is not an illegal immigrant. She legally asked to be here, and is waiting for her sponsor. (If she snuck in illegally she could have just gotten an abortion. Stop trying to screw over people who obey the law.)
2. Nothing here says tax money is paying for her abortion. When a child under 18 was abused and is pregnant, usually charities pay, nonprofit agencies use grant funds (which do not come from taxes), and/or clinics waive their fees.
3. So the next time you need medical help, you want the government to require an IRS audit first to make sure you paid all your taxes?


You are a sick poppy! Who in the hell you thing you are to make or forced your opinions on others! You have forgotten that this is a free country and you Repugs are taking it to the laundry!

Keep your religions ideas to yourselves and let others make their wishes!


She came here not knowing that she was pregnant.
While I don't buy it, it is possible. I'm sure she very much suspected that she was and then she comes here? Why? To get an abortion and free to boot. Where do you think the money was going to come from? Taxpayers of course. She wasn't going to pay.


You are familiar with the Johnson amendment or do you not, the Johnson amendment that the government can't fund an abortion except for cases where the females impregnation is either rape, incest, or a dangerous pregnancy. she may be illegal, but guess what, if you're getting tax refund, YOUR NOT A TAX PAYER, you pay $35k per person per year to feed and house them in prison, multiply that by the number of prisoner, then moan again about a single abortion procedure.


American taxpayers were never GOING to 'pay for her abortion'--ever heard of the Hyde Amendment? American taxpayers don't pay for elective abortions, ever, it's the law. Since you have a such strong opinion on this, why don't you know that?

Sponsors were found who paid for her procedure.


Contrary to popular perception, many Pro-Choice voters are actually Anti-Abortion. These voters simply believe that the "mother" or citizen has better judgement than a male politician running for re-election pandering for votes. The mother also has to bear all of the longterm hardships, not the politician holding his finger up to the wind. These are the very same politicians that passed the Patriot Act without ever reading it or knowing what was in the law.


Really well stated,..thoughtful and concise,...great response!


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