Tuesday, July 10, 2018

Kavanuagh Dissent in Abortion Case Involving Detained Immigrant Teen Likely to Be Confirmation Issue


Last night, President Donald Trump nominated U.S. Court of Appeals for the D.C, Circuit Judge Brett Kavanaugh to replace Associate Justice Anthony Kennedy on the U.S. Supreme Court.  Here is a SCOTUSBlog profile of Judge Kavanaugh.  Akhil Amar in the New York Times offers a ringing endorsement of the nominee.

As outlined in Law 360 (subscription required), Judge Kavanaugh's dissent in Garza v. Hargan (2017) will likely be an issue in the upcoming confirmation hearings.  Judge Kavanaugh sharply dissented to the D.C. Circuit’s en banc decision allowing an unauthorized, unaccompanied 17-year-old immigrant in detention to have an abortion. The en banc opinion overturned a divided D.C. Circuit panel order that said the girl must be released to a sponsor before she could seek an abortion on her own, and that the government did not need to allow her abortion before then.

Judge Kavanaugh agreed with the panel opinion and the Trump administration, calling the en banc’s reversal a “radical extension of the Supreme Court’s abortion jurisprudence.”  He wrote that the en banc opinion “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.”

Judge Kavanaugh summarizes his dissent as follows:

"As a lower court, our job is to follow the law as it is, not as we might wish it to be. The three-judge panel here did that to the best of its ability, holding true to the balance struck by the Supreme Court. The en banc majority, by contrast, reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors. The majority’s decision is inconsistent with the precedents and principles of the Supreme Court – for example, the many cases upholding parental consent laws – allowing the Government to impose reasonable regulations so long as they do not unduly burden the right to abortion that the Court has recognized.

This is a novel and highly fraught case. The case came to us in an emergency posture. The panel reached a careful decision in a day’s time that, in my view, was correct as a legal matter and sound as a prudential matter. I regret the en banc Court’s decision and many aspects of how the en banc Court has handled this case."



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