Kavanaugh ruling hints at approach on abortion
WASHINGTON — Judge Brett 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.
Anti-abortion activists say they are assured, without specific evidence in his writings, that President Donald 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 District of Columbia 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 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 anti-abortion 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 District 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.