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. 

View comments (92)
Read the Terms of Use

geo smith

I am 76 yrs old had two friends die because of the coat hanger aboration that some girls took in the 50 @ 60's

Anonymous

And... One of the reasons that Roe was passed in the first place was because they wanted to lower back street abortion practices because they were unsafe. After Roe, backstreet abortions rose significantly. It didn't work out the way they planned...

Linda Bond

Kavanaugh has other faults too.

George Vreeland Hill

A week delay is fair in the Brett Kavanaugh confirmation hearings and the right thing at this time.
If Brett Kavanaugh is cleared, then the Democrats and #metoo supporters have to shut up about it all.
If cleared, then the nonsense has to stop.
The Dems have to stop whining which is something they have been doing since election night.
If cleared, then move on.
Accept the fact that Kavanaugh will be a Supreme Court Justice.
That is how this country works.
We elect leaders to make decisions.
President Trump made Kavanaugh his choice.
Also, let Trump do his job.
He was elected President of the United States no matter how any of us feel about it.
This two party against each other is making a laughingstock out of us all.
The resist movement has proven to be nothing but a chaotic mess.
It all has to stop.
Real fast.

George Vreeland Hill

Anonymous

Amen

Anonymous

she already had the abortion. it was all another leftist ruse.

Anonymous

In case you all didn't read his dissent, which based on most comments that you haven't.  Kavanaugh stated:

"To review: Jane Doe is 17 years old.  She is a foreign citizen. Last month, she was detained shortly after she illegally crossed the border into Texas. She is now in a U.S. Government detention facility in Texas for unlawful immigrant minors. She is 15-weeks pregnant and wants to have an abortion. Her home country does not allow elective abortions.

All parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow. All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States. One question before the en banc Court at this point is whether the U.S. Government may expeditiously transfer Jane Doe to an immigration sponsor before she makes the decision to have an abortion. Is that an undue burden on the abortion right, or not?

Contrary to a statement in the petition for rehearing en banc, the three-judge panel’s order did not avoid that question.  The panel confronted and resolved that question."

First of all, she was here illegally as many have stated that she was not.  She was underage, which legally is seen as a non-person which the other dissenting judge pointed out (which was the crux of the problem) and if you look at the first order, they were delaying 2 WEEKS AT MOST for them to get her a sponsor.  That is not an "undue burden."

Anonymous

I'm sorry, restrict women from making decisions about her body, that is bullshit. There is another person that needs looking after when you become pregnant, you are growing a person, there is a human being in there and abortion is murder. And anyone who thinks different is heartless, so she wanted to have an abortion because she wanted to go to school and have a career, then she should have used protection and prevented the pregnancy to begin with or she could have given the child up for adoption. People are too quick to get an abortion like its no big deal, it's murder plain and simple. The only reason you should be able to have an abortion is medical reasons, if it will kill you to be pregnant then that the only acceptable reason. I don't understand how people can be so supportive of ending a life of someone before they even have a chance. Its so sad.

Anonymous

Quick question.. Husband and I are arguing about when a human life begins. I was taught in medical school it begins at conception. He is saying it isn't human until birth. What is the general consensus out there?

Anonymous

A woman must have the right to make full decisions pertaining to her body.

Pages

Stay Informed