During Judge Brett M. Kavanaugh’s 2006 confirmation hearing to the U.S. Court of Appeals for the D.C. Circuit, he said he accepted the precedential value of Roe v. Wade, the landmark Supreme Court ruling that legalized abortion.
It was a statement expected of lower-court judges.
But Supreme Court justices are not bound as judges on lower courts are.
Now, as President Trump’s second nominee, Kavanaugh is seen by antiabortion rights activists as an ally. Trump has said he would nominate “only pro-life” judges and predicted during the campaign that Roe would be overturned if he had a chance to make several nominations to the Supreme Court.
Antiabortion activists say they are assured, without specific evidence in his writings, that Kavanaugh could provide the long-sought final piece to a Supreme Court majority that would allow far more restrictions on abortion — and perhaps even overturn the court’s abortion rights precedents that began 45 years ago in Roe.
On this, abortion rights advocates agree with their opponents.
But during Kavanaugh’s 12 years on the federal bench, he only ruled on one major abortion case.
Last fall, Kavanaugh issued a strongly worded dissent in a case involving a pregnant immigrant teenager in federal custody in a Texas shelter. In Garza v. Hargan, the teen wanted an abortion, but the government refused.
A Texas judge had declared the 17-year-old mature enough to make the decision to terminate the pregnancy without notifying her parents, whom her lawyers said she feared. But the Trump administration was refusing to “facilitate” abortions for undocumented minors in immigration custody because of the government’s “interest in promoting fetal life.”
The teen’s lawyers from the American Civil Liberties Union went to court in Washington to try to stop the government from interfering with the teen’s plans. The case landed in the D.C. Circuit in late October after a lower-court judge ordered the government to allow the abortion to proceed.
By then the girl was in her 15th week of pregnancy and the window for the court to act was closing. Texas law bans most abortions after 20 weeks.
Kavanaugh was on the initial three-judge panel that reviewed the case on Oct. 20, and he immediately signaled his interest in a compromise.
“It seems to me in this case, if she were released to a sponsor, that would solve the government’s objection. That would allow her to be released from custody, which presumably would be a good thing, and allow her to obtain the abortion if she so chooses,” he said in oral argument.
Throughout the hearing, Kavanaugh seemed keenly interested in the role of the sponsor as a stand-in for a detained teen’s parents, “someone the minor can talk to about this major life decision and get reassurance, talk to about options, get support,” he said.
Later that day, the court issued a brief, divided ruling that allowed the Trump administration to maintain its policy at least temporarily and delayed the teen’s plans to end her pregnancy. Kavanaugh, joined by Judge Karen LeCraft Henderson, gave the government 11 days to try to find a sponsor to take custody of the girl, a step that would have removed the government from the process of “facilitating” the abortion.
Judge Patricia A. Millett, an Obama nominee, objected in a separate opinion characterizing the majority’s proposition as an unnecessary, unconstitutional delay.
Four days after Kavanaugh’s ruling, he was overruled by the full court, prompting him to write a dissenting opinion.
The controversy “was Kavanaugh’s audition for the Supreme Court,” said Fatima Goss Graves, president of the National Women’s Law Center, which supports abortion rights. “After showing his hostility to abortion, he was added to Trump’s shortlist.”
Kavanaugh’s actions throughout the Garza case provide a detailed view of how he might approach abortion issues on the high court — and offers a glimpse of a judge who said he was striving to find middle ground on divisive issues.
Kavanaugh said he had “accommodated the competing interests” by balancing Supreme Court precedent that prohibits government from placing an “undue burden” on a woman seeking an abortion while acknowledging its interest in protecting “fetal life.” It would further delay the teenager’s abortion, he conceded, but could ultimately allow her to end the pregnancy “if she so chooses” without the government’s involvement.
In his dissent, Kavanaugh accused his colleagues of creating “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” The phrase — “abortion on demand” — is part of the antiabortion lexicon.
He said the majority was shifting the law toward “a radical extension of the Supreme Court’s abortion jurisprudence.”
Brigitte Amiri, the ACLU lawyer who argued the case, said even though Kavanaugh had recognized the time constraints on the teen during oral argument, his decision did not account for the implications of additional delay.