Judge Brett Kavanaugh's Troubling Record On US Abortion Rights

Photo: Bill Clark/Getty Images.
If confirmed to the Supreme Court, Judge Brett Kavanaugh could have the power to reshape reproductive rights in the United States. And based on his role in a major case last autumn – the only decision on his record about abortion rights – Judge Kavanaugh appears all too willing to disregard both women’s health and Supreme Court precedent in order to empower the Trump administration to prevent young women from controlling their own bodies.
The case began when a 17-year-old young woman (identified as “Jane Doe” in court) was detained in a federal shelter after entering the United States alone across the southern border. While in federal custody, she learned that she was pregnant and informed shelter staff that she wanted an abortion.
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But the Office of Refugee Resettlement (the same agency responsible for recent family separations at the border) had other ideas. Even though Jane completed all legal requirements for minors to obtain an abortion, the ORR refused to allow her to receive medical treatment. Jane was only able to get an abortion after a full federal appeals court issued a court order.
That order overturned an initial decision from a three-judge panel which included Kavanaugh, who sided with the government in their efforts to prevent Jane from getting an abortion. Kavanaugh voted to block Jane’s abortion for at least 11 more days while the government tried to place her with a sponsor, even though she was already 15 weeks pregnant.
In doing so, Judge Kavanaugh neglected the consequences that further delay could have on Jane’s health. While later abortions remain extremely safe, the possibility of complications from the procedure increase with each passing day. Judge Kavanaugh also neglected the well-documented mental, physical and socioeconomic harm caused to women by forcing them to carry an unwanted pregnancy to term.
When the full D.C. Circuit Court of Appeals reversed Judge Kavanaugh’s decision days later, he wrote separately to express his disagreement — and disregarded Supreme Court precedent in the process. The Court’s 1992 decision in Planned Parenthood v. Casey held that the government may not impose an “undue burden” on a woman’s right to access abortion care. And just two years ago in Whole Woman’s Health v. Hellerstedt, the Supreme Court recognised that government-inflicted waiting times for women seeking an abortion can contribute to an undue burden. Judge Kavanaugh failed to cite Whole Woman’s Health as binding precedent, and only recognised Roe v. Wade and Casey as “precedents we must follow.”
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While he professed to follow Casey, Kavanaugh’s opinion in fact would have hollowed it out. Here are some of the government actions directed against a young woman alone in the United States that didn’t rise to the level of an undue burden for Judge Kavanaugh: The government forced Jane to cancel multiple doctors’ appointments. Staff at her shelter forced Jane to attend “counselling” with a religiously-affiliated, anti-abortion fake health centre. Overriding Jane’s wishes, staff members contacted her mother and informed her of Jane’s pregnancy. These are all heavy-handed tactics to steamroll the will of a young woman.
Even though the government was effectively holding Jane hostage, Judge Kavanaugh didn’t think she had suffered an undue burden. In reality, what the government put Jane through was not just an undue burden, but an absolute burden on her ability to make her own choices about her pregnancy. As D.C. Circuit Judge Patricia Millet wrote in her opinion in favour of Jane, “The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.”
The rest of Judge Kavanaugh’s opinion raised even more worry about where he stands on reproductive rights. He repeatedly and pejoratively referred to abortion without a government veto as “abortion on demand.” Without a veto, he reasoned, the government would be “facilitating abortion.” However, the government wasn’t being asked to “facilitate” anything because Jane (with the help of a court-appointed guardian) had already arranged her own medical appointments, transportation, and payment. Kavanaugh also ignored a core Supreme Court holding from Casey that government abortion restrictions must “inform the woman's free choice, not hinder it.”
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Judge Kavanaugh’s thinking in Jane’s case is not new. He had previously praised the dissenting opinion in Roe. And promptly after Kavanaugh dissented in Jane Doe’s case, he made it to the president’s short list to fill a Supreme Court vacancy — a list of judges who, Trump promised, will overturn Roe “automatically.”
In Jane’s case, Judge Kavanaugh hollowed out Supreme Court precedent to the point of absurdity, arguing that government officials barring the doors so a pregnant teenager cannot access abortion care is somehow not an undue burden on her bodily autonomy. He was willing to do that as a lower-court judge bound to follow Supreme Court precedent. Those who care about reproductive rights and personal liberty should shudder at how far he might be willing to go if the United States Senate gives him the power to change that precedent.
Joel Dodge is a staff attorney for judicial strategy at the Center for Reproductive Rights, working on innovative legal strategies to advance the current reproductive rights framework. Before joining the Center, he was an associate at Stroock & Stroock & Lavan LLP, where he worked on a wide range of civil litigation and pro bono matters.
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