WASHINGTON, D.C., September 5, 2018 (LifeSiteNews) – Today, Judge Brett Kavanaugh explained in detail his legal reasoning in the one case in his record directly intersecting with abortion law, in response to questioning from Sen. Dick Durbin, D-IL.
Last year, as a D.C. Circuit Court judge, Kavanaugh dissented in Garza v. Hargan, concluding there was no “right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” Pro-lifers celebrated his decision, though some lament that he based it partly on the theory that delaying her abortion didn’t constitute an “undue burden.”
Critics argue he should have joined a bolder opinion by Judge Karen LeCraft Henderson, which recognized the illegal immigrant had no right to abortion at all; defenders say he was merely operating within the framework that both sides of the suit agreed on.
On Wednesday, Durbin challenged Kavanaugh on the grounds that the girl had satisfied all of Texas’s prerequisites to obtaining an abortion, including an ultrasound and securing a judicial bypass to parental consent requirements. He also objected that the “clock was ticking” before she would be locked out by the state’s 20-week abortion ban.
“It’s important to emphasize that it was a minor,” Kavanaugh began. “So she’s in an immigration facility in the United States, she’s from another country, she does not speak English. She’s by herself. If she had been an adult, she would have a right to obtain the abortion immediately.”
The government wanted to instead transfer the girl to an immigration sponsor with whom she could consult about the decision, he recalled. So because there was no Supreme Court precedent on the question specifically pertaining to illegal immigrants, he consulted the closest analogue available, which were the Supreme Court’s past rulings on parental consent generally.
“They’ve repeatedly upheld parental consent laws over the objection of dissenters who thought that’s going to delay the procedure too long, up to several weeks,” Kavanaugh explained, specifically quoting Planned Parenthood v. Casey’s admission that “minors benefit from consultation about abortion.” He added that the purpose of the Texas judicial bypass statute was not germane to the question before the court at the time.
“Precedent’s not like a cafeteria” where he could pick and choose what to follow, Kavanaugh stressed. “I did my best in an emergency posture. I had two days.”
He also stressed that while he ultimately sided with the Trump administration, he also “made clear [the transfer to a sponsor] had to happen very quickly,” and “specifically said the government cannot use this as a ruse to somehow prevent the abortion” entirely.
Conservative Review senior editor Daniel Horowitz expressed disappointment with Kavanaugh’s answer. “If we can't even have a nominee who can publicly say there is no right for 7.2 billion people to break into the world and demand an abortion – putting Roe aside – i dont [sic] know the purpose of us engaging in this business,” he said.
Conservatives hope and liberals fear he would provide the long-awaited fifth vote in a variety of long-running judicial controversies, particularly overturning Roe v. Wade and allowing states and Congress to directly vote on whether abortion should be legal.
Kavanaugh’s thin record of abortion-related statements and rulings does not conclusively reveal his position. He expressed significant deference to the doctrine of stare decisis (respecting judicial precedent) Tuesday, but also praised the late Chief Justice William Rehnquist in a 2017 speech for recognizing that Roe was an example of “freewheeling judicial creation of unenumerated rights.”