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Kavanaugh Files: Abortion Rights

Editor’s Note: This is one of a series of stories examining what Democrats are saying about Supreme Court nominee Brett M. Kavanaugh and what Kavanaugh’s record shows on these issues.

Advocates for abortion rights are concerned that Judge Brett Kavanaugh could become the deciding vote in a future case to potentially overturn Roe v. Wade, the 1973 Supreme Court decision that recognized a woman’s right to an abortion.

After all, Donald Trump, in a 2016 presidential debate against Hillary Clinton, said “I am pro-life” and “the justices that I’m going to appoint will be pro-life.”

When Trump nominated Kavanaugh in July, House Democratic Leader Nancy Pelosi said that “Judge Kavanaugh’s comments make abundantly clear that he will expansively rule against women’s reproductive rights and freedoms and move to destroy Roe v. Wade.”

To support her claim, Pelosi referred to flattering comments Kavanaugh made about former Chief Justice William Rehnquist, who wrote a dissenting opinion in the landmark case. In addition, she mentioned a ruling Kavanaugh made last year in the case of an immigrant minor, who was in the country illegally, in federal custody, and who wanted to get an abortion.

Those issues came up in Kavanaugh’s confirmation hearings, in which he also faced questions about whether or not he truly believes Roe v. Wade is “settled law.”

Here, we review the specific points raised by the Democrats and the facts in each case.

‘Praised’ Rehnquist’s Dissent

What Democrats are saying: “Just last year, Judge Kavanaugh praised the dissent in Roe v. Wade,” Sen. Kamala Harris said on Sept. 4. The same day, Sen. Chris Coons said of Kavanaugh, “you’ve recently praised Justice Rehnquist’s dissent in Roe v. Wade.” And back on July 12, Pelosi said that “he gave a speech, not probably well-known but praising Chief Justice Rehnquist for his dissent in Roe v. Wade.”

What Kavanaugh’s record shows: Kavanaugh did call Rehnquist his “first judicial hero” in a September 2017 lecture at a Constitution Day event for the American Enterprise Institute. He said Rehnquist, who was one of only two justices who dissented in Roe v. Wade, “brought about a massive change in constitutional law and how we think about the Constitution.”

And as a law student, Kavanaugh said, he often found himself agreeing with Rehnquist’s opinions, or at least recognizing when he made compelling arguments.

“In class after class, I stood with Rehnquist. That often meant in the Yale Law School environment of the time that I stood alone,” Kavanaugh said. Although, “to be sure, I do not agree with all of his opinions,” he said.

After that, Kavanaugh went on to highlight five areas where he said Rehnquist “applied his principles and where he had a massive and enduring impact on American law.”

One of those topics was “the Court’s power to recognize unenumerated rights,” which Kavanaugh covered in five paragraphs:

Kavanaugh’s Constitution Day lecture, Sept. 18, 2017: A few months after he joined the Court in 1972, Justice Rehnquist faced an oral argument about the constitutionality of a state law prohibiting abortion in the case of Roe v. Wade. Rehnquist, along with Justice Byron White, ultimately dissented from the Court’s seven-two holding recognizing a constitutional right to abortion.

Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion even where the mother’s life was in jeopardy would violate the Constitution. But otherwise he stated the states had the power to legislate with regard to this matter.

In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition. The 1997 case of Washington v. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right.

Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973 — as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.

However complementary his remarks were, Kavanaugh never explicitly said he agreed with Rehnquist’s dissent in Roe v. Wade. But it isn’t clear that he disagreed with it, either

Garza v. Hargan

What Democrats are saying: “Last year, you drafted a dissent in Garza v. Hargan. And that’s a case where a young woman in Texas, I believe, was seeking an abortion,” Sen. Dianne Feinstein said on Sept. 4. “In that dissent, you argued that even though the young woman had complied with the Texas parental notification law and secured an approval from the judge, she should nevertheless — nonetheless be barred.”

What Kavanaugh’s record shows: About a month after Kavanaugh’s lecture on Rehnquist, he was part of a three-judge panel that ruled on a case involving a 17-year-old immigrant who illegally entered the U.S. without her parents, and after being told she was pregnant, sought to have an abortion.

In lieu of parental consent, she obtained permission from a local judge to have the abortion, as required in Texas, where she was being held in a federally funded immigration shelter.

But the Office of Refugee Resettlement of the Department of Health and Human Services, which assumes responsibility for unaccompanied minors who come to the U.S., would not permit her to leave the facility to undergo the procedure.

With the help of Rochelle Garza, a court-appointed guardian, “Jane Doe” or “J.D.,” as the minor was identified in court documents, filed a lawsuit in the U.S. District Court for the District of Columbia, where Judge Tanya Chutkan ordered federal officials to allow her to have the abortion, “promptly and without delay.”

The government appealed the decision to the D.C. Circuit Court of Appeals, arguing that it should not have to “facilitate” the abortion, and that the girl should first be transferred from HHS custody to an adult sponsor before ending her pregnancy.

In a 2-1 ruling, the judges’ panel, including Kavanaugh, sided with the government. (Judge Patricia Millett dissented.)

The decision, which was unsigned, said: “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.”

HHS was given another 11 days to find a sponsor for the pregnant teen. If a sponsor could be found to take custody of the minor, she would be allowed to have the abortion. But if no sponsor could be found, the case would go back to the District Court.

So, the girl wasn’t necessarily “barred” from having an abortion, as Feinstein said. Instead, the panel ruled that she should be placed with a sponsor before having one.

In response, Jane Doe’s lawyers (from the American Civil Liberties Union) asked that the case be considered by the full appeals court, which, by a vote of 6 to 3, overturned the panel’s ruling and paved the way for her to get the abortion.

In his dissenting opinion, Kavanaugh said that the majority got it wrong.

Kavanaugh dissent, Garza v. Hargan, 2017: The en banc majority has badly erred in this case. The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and 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, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.

Kavanaugh said the government was “merely seeking to place the minor in a better place when deciding whether to have an abortion.”

It was even possible the minor — who would have been 16 or 17 weeks pregnant at the end of those 11 days — would have been allowed to have the abortion if a sponsor had not been found, he said. (Texas outlaws abortions after 20 weeks.)

Notably, Kavanaugh didn’t go as far as Judge Karen Henderson, who said unauthorized immigrant minors don’t have the right to an elective abortion.

But at the start of the confirmation hearings, Feinstein, the ranking Democrat on the Senate Judiciary Committee, said she still was wary of Kavanaugh’s argument.

“If adopted, we believe [it] would require courts to determine whether a young woman had a sufficient support network when making her decision, even in cases where she has gone to court,” Feinstein said. “This reason we believe, I believe, demonstrates that you are willing to disregard precedent,” she said of Kavanaugh, who, according to news reports, told Republican Sen. Susan Collins in August that Roe v. Wade was “settled law.”

He told Feinstein the same thing on Sept. 5.

“Senator, I said that it’s settled as a precedent of the Supreme Court entitled the respect under principles stare decisis,” Kavanaugh said, referring to the legal term for letting prior rulings stand. “And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood versus Casey in 1992,” he said.

2003 Email

What Democrats are saying: “Judge Kavanaugh has been pretending he would not overturn Roe v. Wade by hiding behind the idea that it’s ‘settled law’ and ‘precedent,'” Sen. Patty Murray said on Sept. 6. “That’s what he has been saying in his hearings, so far, and he’s hoping that will fool women across the country into thinking their rights and freedoms are safe. We know that is not true. A ruling even as important as Roe is settled law and precedent only until someone like Judge Kavanaugh and four other ideological justices on the Supreme Court vote to overturn it. This new document confirms our worst fears.”

What Kavanaugh’s record shows: One day after reaffirming that he thinks Roe v. Wade has been “settled as a precedent,” the New York Times reported that it had obtained an email from March 2003 in which Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” That email is the document that Murray referred to in her remarks.

At the time the email was sent, Kavanaugh was working in the George W. Bush administration, and he was responding to an email that included a draft of an op-ed written to defend some of President Bush’s judicial nominees. The original draft included the line, “First of all, it is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Feinstein asked Kavanaugh about the email on Sept. 6 — the same day the Senate Judiciary Committee released it to the public along with other documents.

“This has been viewed as you saying that you don’t think Roe is settled,” Feinstein said, after reading part of the email aloud. “So please, once again, tell us why you believe Roe is settled law, and if you could, do you believe it is correctly settled?”

Kavanaugh said he was only questioning the accuracy of the op-ed’s language.

“The broader point was simply that I think it was overstating something about legal scholars,” he told Feinstein. “And I’m always concerned with accuracy and I thought that was not quite accurate description of legal — all legal scholars, because it referred to all.” (The draft actually said “legal scholars across the board,” not “all legal scholars.”)

Kavanaugh went on to again tell Feinstein that “Roe v. Wade is an important precedent of the Supreme Court” that has “been reaffirmed many times.” However, he avoided answering whether the case was correctly decided, as she had asked.

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“Just last year, Judge Kavanaugh praised the dissent in Roe v. Wade."
Senate confirmation hearing
Tuesday, September 4, 2018