During questioning from pro-abortion Democrat Dick Durbin of Illinois, Jude Brett Kavanaugh defended a ruling he issued saying the Trump administration did not have to help an illegal immigrant get an abortion.
The Supreme Court nominee, as a judge on the D.C. Circuit heard the case of Garza v. Hargan. In that case, American Civil Liberties Union sued the Department of Health and Human Services for declining to facilitate an immediate abortion for an unlawful-immigrant minor in federal custody.
The district court ruled for the ACLU but on appeal, Judge Kavanaugh and another judge reversed — agreeing with the Trump administration that it did not have to provide an immediate abortion and ordering the district court to give the minor time to find a sponsor so that the government did not have to facilitate the abortion.
When the full D.C. Circuit later vacated that decision and ordered the government to facilitate the abortion immediately, Judge Kavanaugh dissented, stating that the majority had “badly erred” in adopting a “radical extension of the Supreme Court’s abortion jurisprudence.”
As Sarah Pitlyk, a former law clerk to Judge Kavanaugh and special counsel for the Thomas More Society, which is a leading pro-life legal group, has explianed:
He again endorsed the Trump administration’s position that it did not have to facilitate an immediate abortion on demand. In his opinion, Judge Kavanaugh emphasized the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion.”
During his questioning, Durbin complained that Kavanaugh made it more difficult for the illegal immigrant to abort her baby because she was getting close to a 20-week abortion ban in the state of Texas. But Kavanaugh defended the decision, saying he based it on the parental consent requirements the Supreme Court has upheld and wanted to ensure she had good counseling before ending her baby’s life.
“Senator, the Garcia case involved first and foremost a minor and it’s important to emphasize she was a minor. She is in an immigration facility in the United States. She is from another country and she does not speak English,” Kavanaugh explained. “For me the question is what is the precedent? The precedent on the Supreme Court is that there is no case on the exact point. So you do what you do on all cases. What is the closest of body of law on point? The parental consent decisions on the Supreme Court where they repeatedly upheld such laws.”
“I’m not making the policy decision. My job is to decide whether that policy is consistent with law,” Kavanaugh continued. “What do I do? The most analogous precedent has the parental consent precedent. The policy is being made by others. I’m deciding what policies are consistent with Supreme Court precedent.”
“And the parental consent cases of the Supreme Court recognized that there could be some delay because of the parental consent procedures,” he explained.
The decision is ultimately important because the ACLU and abortion advocates were pushing to create a so-called right to abortion for illegal immigrants. In part because of Kavanaugh, they did not get their wish.