DANIEL VAUGHAN: Judge Brett Kavanaugh on the issue of abortion

July 13, 2018

Brett Kavanaugh is one of the most brilliant legal minds in America. He’s also easily one of the most respected judges on any bench in the country — and his nomination to the Supreme Court was a fantastic choice by President Donald Trump.

This is largely because Kavanaugh has sat on the D.C. Circuit Court of Appeals for the last 12 years. This extremely powerful court is often colloquially referred to as the second most powerful court in the land, because it has direct jurisdiction over all the federal agencies in Washington.

And because of that jurisdiction, the judges who preside over the court wield enormous power in shaping the scope of power that federal agencies have over all Americans.

I previously wrote that the First Amendment and administrative law were the most critical issues facing the successor to Justice Anthony Kennedy, and Kavanaugh is imminently qualified and thoroughly experienced to reduce the amount of power federal agencies have over Washington and the country as a whole.

Law professor Jonathan H. Adler provides the best argument for Kavanaugh on this front, along with defenses of Kavanaugh’s opinions in the Obamacare cases.

Attorney Ken White — famed because of his work with Popehat.com — has the best evidence for why Kavanaugh has an impressive history of expanding and protecting free speech rights under the First Amendment.

But where I’d like to focus today is on the topic of abortion.

The reason Kavanaugh’s record here is sparse is due to the jurisdiction of the D.C. circuit. He wouldn’t get the chance to handle any of the abortion cases that arise in the states; Kavanaugh has only had jurisdiction in D.C., where the workload comprises mostly of cases involving government agencies.

Moreover, as a circuit judge, Kavanaugh didn’t hear every case on the D.C. circuit, because they rotate three-judge panels to spread the workload out.

However, he did rule on one case that touched on the issue of abortion: Garza v. Hargan. You may remember the case from headlines. In 2017, a 17-year-old girl, referred to as  “Jane Doe” due to her minor status, was caught illegally crossing the border into the United States.

After being sent to an illegal immigrant holding facility for minors in Texas, she requested the government give her leave to get an abortion. She was 15 weeks pregnant at the time of her arrest.

Due to the broad reach and nature of the abortion right created in Roe v. Wade and upheld in Planned Parenthood v. Casey, everyone involved in Garza v. Hargan presumed Jane Doe had the right to an abortion. They were all constrained by that precedent.

The question was whether or not the federal government was required to facilitate her request for an abortion on demand.

The trial court ruled that the government was indeed required to facilitate the minor’s request for an abortion on demand. The government appealed the trial court judgment, arguing that under current law, all the government had to do was either deport the girl or give her over to a sponsor in the United States to handle the abortion question.

This is when Judge Kavanaugh came into the picture. On appeal, he ruled on a three-judge panel that the government couldn’t be forced to facilitate an abortion when the government could either deport her or give her to a sponsor in the U.S. In the decision, Kavanaugh wrote:

The Government argues that this process by which a minor is released from HHS custody to a sponsor does not unduly burden the minor’s right under Supreme Court precedent to an abortion. We agree, so long as the process of securing a sponsor to whom the minor is released occurs expeditiously.

But the case didn’t end there. Jane Doe appealed the decision and requested an en banc hearing before the entire D.C. circuit. At that hearing, the liberals on the circuit overruled Kavanaugh, and said that the federal government could be forced to provide an abortion on demand for an illegal immigrant caught at the border.

Kavanaugh strongly dissented that decision, saying that the majority’s argument is “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”

He also took the panel to task for dropping a massive life decision on illegal minors without any supervision, writing:

Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor — ordinarily a family member, relative, or friend — before she makes that decision? And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion.

I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched. After all, the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.

He further argued that the D.C. court had gone well beyond its powers, saying: “As a lower court, our job is to follow the law as it is, not as we might wish it to be.”

On the circuit, Kavanaugh was forced to follow the precedent of Roe. As a Supreme Court justice, however, he would be allowed the opportunity to subject Roe and Casey to the same robust originalist analysis he did all other cases.

That gives me hope for ending the made-up constitutional right to an abortion with Justice Brett Kavanaugh.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.