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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Anonymous

You’re so fucking stupid. I hope you get hit by a car and run over. The world needs fewer cunts like you.

Anonymous

Throughout all of this debate over the last 25 years by the ultra right "moral" majority; no one seems to have read the Holy Bible that actually (believe it or not) authorizes abortions (called in modern translations miscarriage by an ordained Rabbi in the temple with a administered poison the woman drinks to call her to miscarry. Hey I didn't write the bible. Chapter and Verse you say - Genesis and Leviticus (2 separate passages). The reason for the authorized miscarriages is due to adulatory, rape out of wedlock fornication (otherwise - sin). The idea was probably that no child should be brought to full term and allowed to live due to acts of sin. They probably thought the child would be born accursed by God. What amazes me is I wonder how many women had abortions due to being impregnated by Trump and never came forward. In this world of vast, vast overpopulation, we are worried about the life of a child that isn't wanted even over a fully grown woman. Believe me, if my soul had been given a choice to be aborted rather than to be born into the family I was born into, I would have gladly said "abort me". I'm sure some of you reading this want me dead as you are so full of "morality"; yet you don't support medicare, planned parenthood that helps with 97% cases of female problems like cervical cancer, etc. This is the same "moral" right that is allowing 2551 children to be permanently scarred for life mentally due to their separation and incarceration and even having to represent themselves in a court of law. This is the same "moral" right that wanted the ACA reversed destroying health care for over 40 million people. Yea, they are SOOOO PRO LIFE. So what happens when a child is born into a life with a crack addicted Mother or abusive Mother/Father?! Any of these right white folks willing to adopt a poor black child from a 14 year old girl that was 99% most likely forcibly impregnated by date rape, etc. Just because a young girl or woman perhaps dressed, or how she acted gives no excuse for her to be attacked. In my experience, that seems to be 90% of the cases at least. The government doesn't care about people's lives, with GMO approval, use of carcinogens in chemicals, dangerous pharmaceutical drugs being pushed on people while other people trying to get clean are being denied natural alternatives. They are not pro-life, they are PRO-DEATH for any lower-class or even now middle class individual as resources are running scarce or money can be made. They want older people over the age of 60 to die horribly in pain while the rich get treated because they can. There is nothing Holy or Spiritual denying a woman their personal rights.

Anonymous

Thank you for such a realistic view of what is happening. May I copy and post? Stevenmia@aol.com. Steve in Atlanta.

Anonymous

It’s not a woman’s (or man’s) right to end the life of another, even her own child’s life. An embryo in the womb has its own unique human DNA, different from their mothers. In this particular Bible passage you speak of, those who kill their child in the womb are considered cursed and sinful. It is not authorizing abortions in any way, but rather condoning them. I would also like to mention how you conveniently left out how the Bible repeatedly mentions that life begins at the moment of conception. On a side note, your comment was quite racist, sexist, and your Bible reference was just straight up wrong—said like a true feminist. I would expect more of this so called “tolerant” left.

Anonymous

Could Not have said it better myself

AOphelianonymous

I 100% agree with the long comment. And to the person arguing that the Bible verse is condoning not approving~ It's the same!!! If my daughters were raped, they'd immediately take the plan B. IMMEDIATELY!!! And if for any reason it didn't work yes, get an abortion. I don't care what you "conservatives" prefer because not one single fuck of you is going to provide her the therapy she'd need, the health insurance, the copays to see an ObGyn monthly, the maternity clothing as her belly grows, and the cost of child birth, and follow up care... nor will you be there to explain in some future to that human being that his/her mother could not parent him/her as they are products of rape. You are so arrogant to think you know what a rape victim endures. My daughter was a rape victim. She failed one semester of college because she was devastated~ without a pregnancy. She told me she wanyed to crawl out of her skin. I had to get her therapy and extra aytemtion & love ad she was 3 hrs away in college and I had to tend to my career and tounger children. And the mother fucker who raped her got away with it cuz he's white.

AOphelianonymous

I 100% agree with the long comment. And to the person arguing that the Bible verse is condoning not approving~ It's the same!!! If my daughters were raped, they'd immediately take the plan B. IMMEDIATELY!!! And if for any reason it didn't work yes, get an abortion. I don't care what you "conservatives" prefer because not one single fuck of you is going to provide her the therapy she'd need, the health insurance, the copays to see an ObGyn monthly, the maternity clothing as her belly grows, and the cost of child birth, and follow up care... nor will you be there to explain in some future to that human being that his/her mother could not parent him/her as they are products of rape. You are so arrogant to think you know what a rape victim endures. My daughter was a rape victim. She failed one semester of college because she was devastated~ without a pregnancy. She told me she wanted to crawl out of her skin. I had to get her therapy and extra attention & love as she was 3 hrs away in college and I had to tend to my career and younger children. And the mother fucker who raped her got away with it cuz he's white.

Susan

Thank you sooo much for this truthful reply -- it needed to be said and you did it beautifully!

Michael

No civil rights for illegals. Defund Planned Parenthood. Defund ACLU. Defund SPLC. Use the tax payers money for hungry, homeless children and vetrans, not criminals. Being anti-illegal in not, in and of itself racist. What race is "illegal" ?. Tide is turning, Progressives, allow me to throw you an anchor.

Kathy

Perfect.

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