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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Yeah, support the right to murder your own child. Abortion is the worst violation of human rights in the history of the world. Its' supporters will all be judged for it one day. The judgment will not be in their favor.


Abortion is not the murder of a child; it is the elimination of a fetus. A fetus is NOT a baby, no matter what you think. Just like an egg is NOT a chicken. Besides, your religious beliefs do not belong in government. Abortion is LEGAL!


Wow, I guess the person who commented missed Biology 101. You ever crack an egg and a formed chicken comes out? By the time a woman learns that she is pregnant, the fetus is anywhere from 3-4 weeks pregnant or more often more. The baby develops a beating heart at the 3rd week and a brain and spinal column at the 4th week, so by the time the woman learns that she is pregnant the circuitry is in place for pain receptors and such. It is estimated that by week 8, the spinal reflex (i.e. they can feel pain) is in place. While they ESTIMATE (keep in mind that when people use estimates that they typically use only ones that have a "positive" spin) that 66% of abortions happen before 8 weeks and 92% before 13 weeks. So in at least 26% of the abortions, as the baby is being ripped apart being sucked out with a device like a vacuum cleaner, it is feeling it happen. We won't get into the more gruesome methods for the older babies (the last 8%)...

John Howard

Great! Another life saved.


I am absolutely concerned about where my tax dollars go and I know for a fact that they go for all abortions everyday all year long, so sad. I am against aborting defenseless babies that have no voice, but oh yeah, it's become a nation where it's "only" about what is good for ourselves, without regard of those who aren't yet able to speak for themselves. God sees this and will not let this go unnoticed.


Since liberals think they are so intelligent and we Christians are not so smart, I just don't understand why these girls can't swallow a pill or learn how their reproductive organs work to prevent pregnancies in the first place.




You are a sick soul if you think I support your reasoning an illegal immigrant does not have rights here and you supporting her to kill her child.. you sicken me

Fishing bum

Just another reason why Kavanaugh should not be appointed judge. Taking away women's rights what gives him the right to make decisions on our own bodies. We really seriously have to get a huge Blue Wave this November.


The story conveniently leaves out his ruling. READ it first before spouting...


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