Judge Brett M. Kavanaugh has only one major abortion ruling in his 12 years on the federal bench, but that forceful opinion will define the coming debate on what his elevation to the Supreme Court would mean for a woman’s constitutional right to the procedure.
Antiabortion activists say they are assured, without specific evidence in his writings, that President Trump’s second nominee 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 v. Wade.
On this, abortion rights advocates agree with their opponents, and they point to the strongly worded dissent Kavanaugh issued last fall in a case involving a pregnant immigrant teenager in federal custody.
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.”
Before his dissent, Kavanaugh fashioned what he considered a compromise to juggle competing interests in the contentious and emotional case. That decision provides 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.
Still, a majority of Kavanaugh’s colleagues on the U.S. Court of Appeals for the D.C. Circuit said his solution was hardly neutral and reversed his order.
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.
Judge Patricia A. Millett said Kavanaugh had misconstrued the meaning of an “undue burden” by allowing a further delay of the teen’s abortion that already had been put off by the government for weeks.
“There is nothing expeditious about the prolonged and complete barrier to J.D.’s exercise of her right to terminate her pregnancy that [Kavanaugh’s] order allowed the government to perpetuate,” wrote Millett, using the initials for Jane Doe, as the teen was identified in court papers.
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.”
Kavanaugh’s opinion brought expected criticism from the left. But there were conservative critics, too, who said he should have gone further, as another judge on the D.C. Circuit did, in declaring that an immigrant teen has no constitutional right to abortion.
Catherine Glenn Foster, president of Americans United for Life, said she did not agree with those critics, saying the question of the teen’s constitutional right hinged on immigration law, not abortion access.
“I can’t pretend to imagine what his position on that issue would be if he was on the high court,” she said.
During his 2006 confirmation hearing to the appellate bench, Kavanaugh said he accepted the precedential value of Roe — a statement expected of lower-court judges. In the recent teen abortion case, he referred repeatedly to “precedent,” using the word 20 times in his 10-page opinion.
But Supreme Court justices are not bound as judges on lower courts are. Foster said she feels “confident” that his conservative approach to constitutional interpretation would lead him to believe Roe and the court’s reaffirmation of the right in Planned Parenthood v. Casey were wrongly decided.
There’s another reason to expect he would take such a stance: Trump 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.
Polls show a majority of Americans are opposed to overturning Roe. Trump has insisted since nominating Kavanaugh that the two did not discuss his views on the decision.
And Vice President Pence was evasive when CNN’s Dana Bash asked if he hoped Roe would be overturned.
“Well, I do, but I haven’t been nominated for the Supreme Court,” Pence said.
Many legal battles over abortion concern state laws restricting access to the procedure. But the case before Kavanaugh and his colleagues involved a new Trump administration policy.
The pregnant Central American teenager was being held last fall in a government-funded shelter in Texas after crossing the border illegally. She had been seeking an abortion for weeks.
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.
Kavanaugh acknowledged the time pressures of most concern to the teen: “We have a couple weeks at most and I realize you’re going to say correctly that each day matters, and I understand that, completely understand that,” he said.
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.
Millett, an Obama nominee, objected in a separate opinion characterizing the majority’s proposition as an unnecessary, unconstitutional delay.
“Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason,” Millett wrote.
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.
“This idea of giving the government more time to come up with a sponsor was illusory and doesn’t recognize the fact that she’d been forced to stay pregnant against her will,” Amiri said this week. “There was no reason to delay even further.”
Four days later, Kavanaugh was overruled by the full court. In his dissent, Kavanaugh wrote that it was “not an undue burden” for the government to try to quickly transfer the teen to a sponsor. He pointed to past rulings that allow the government to take positions “favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion” and to other restrictions on abortion that impose delays such as waiting periods and parental notification.
The majority of his D.C. Circuit colleagues disagreed. In a 6-to-3 ruling, without oral argument, the case went back to a lower- court judge who ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.