With scant abortion record, nominee’s views are elusive
One ruling, a lone speech are only big Kavanaugh reveals.
Twice in the past year, Brett Kavanaugh offered glimpses of his position on abortion that strongly suggest he would vote to support restrictions if confirmed to the Supreme Court.
One was in a dissent to the U.S. Court of Appeals for the District of Columbia Circuit in the case of a 17-yearold migrant seeking to terminate her pregnancy. The other was a speech before a conservative group in which he spoke admiringly of Justice William Rehnquist’s dissent in the 1973 Roe v. Wade case that established a woman’s right to abortion.
Yet the big question about Kavanaugh’s view on abortion remains unanswered: whether he would vote to overturn Roe. He’ll almost certainly decline to answer when he is asked directly at his confirmation hearing. Decades of Kavanaugh’s writings, speeches and judicial opinions, reviewed by The Associated Press, reveal a sparse record on abortion.
That leaves the migrant case, known as Garza v. Hargan, and the Rehnquist speech as focal points for anti-abortion activists who back President Donald Trump’s nominee and for abortion rights advocates who say Kavanaugh has provided ample clues to justify their worst fears.
“This is the rhetoric from the anti-abortion groups being used by a potential Supreme Court justice, and that really gives us pause,” said Jacqueline Ayers, the national director of legislative affairs for Planned Parenthood Federation of America.
Democrats have been casting Kavanaugh as a threat to abortion rights as they face the difficult task of blocking his nomination in a Senate where Republicans hold a narrow majority. Abortion is perpetually a contentious issue for court nominees, and the stakes are particularly high this time since Kavanaugh would be replacing Anthony Kennedy, who has voted to uphold abortion rights.
Much of the debate in the Garza v. Hargan case centered on the 1992 Planned Parenthood v. Casey decision, which prohibited regulations that created an “undue burden” on women seeking an abortion. Appellate judges had to determine whether officials created such a burden by not releasing the Central American teen so she could get an abortion.
The girl, identified in filings as Jane Doe, was 15 weeks pregnant when the case came before Kavanaugh. The law in Texas, where she was being held, bars abortions after 20 weeks.
In arguing that a lower court was right to approve an immediate abortion, Judge Patricia Millett said entering the U.S. illegally “does not mean that an immigrant’s body is no longer her ... own” and among the penalties for crossing the border illegally should not be “forcing a child to have a baby.”
In his dissent, Kavanaugh accepted that the Roe v. Wade precedent applied to the teenager and he didn’t accept the government’s contention that it could stop the teen from having an abortion in the U.S.
His main complaint about the majority’s ruling was, he said, that it created “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
Still, Kavanaugh faced some conservative criticism for not taking a firmer anti-abortion stance like his colleague, The nomination of
Brett Kavanaugh to the Supreme Court is a divisive issue, and these types of controversial stories receive special treatment. We always try to present as much information as possible so that readers can use those facts to reach their own conclusions. To do that, we rely on a variety of sources that represent multiple points of view. Today’s story, for example, includes excerpts from Kavanaugh’s writings and speeches, as well as comments from groups on both sides of the abortion debate and another judge who disagreed with Kavanaugh. Karen Henderson, who stated unambiguously that an immigrant in the U.S. illegally has no right to an abortion.
Conservatives had no complaints about the speech Kavanaugh gave at the American Enterprise Institute last year in which he heralded Rehnquist as “my first judicial hero” and spoke admiringly of his dissent in Roe v. Wade.
A 7-to-2 majority in Roe v. Wade struck down a Texas law criminalizing abortion, citing an implied right to privacy in the 14th Amendment. Rehnquist’s dissent said the court had created a right “completely unknown” to drafters of the amendment.
Rehnquist also pushed to reverse Roe in Casey. The court ended up reaffirming abortion rights in a 5-4 decision instead, with Kennedy joining the majority.