No one knows whether Brett Kavanaugh would vote to overturn Roe v. Wade outright or simply gut it. But even on a lower court, Kavanaugh put arbitrary obstacles in the way of someone desperate to end her pregnancy.
Shortly after his inauguration, President Donald Trump, uniquely attentive to his debt to the religious right, appointed anti-abortion activist E. Scott Lloyd to head the Office of Refugee Resettlement, despite Lloyd’s lack of relevant experience. The position gave Lloyd authority over unaccompanied minors caught crossing into the United States, authority Lloyd exploited to try to stop pregnant migrants from getting abortions.
Last year, thanks to Lloyd’s interference, a 17-year-old from Central America had to wage a legal battle to end her pregnancy. Known in court filings as Jane Doe, the girl learned she was pregnant while in custody in Texas, and was adamant that she wanted an abortion. In keeping with Texas’ parental consent law, she obtained a judge’s permission, helped by a legal organization called Jane’s Due Process. Jane’s Due Process raised money for the abortion, which was scheduled for the end of her first trimester.
But under Lloyd’s direction, the shelter where she was being detained refused to cooperate. Doe went back to court, and a federal judge ruled in her favor, issuing a temporary restraining order against the government. The administration appealed, and the case, Garza v. Hargan, went to a three-judge panel of the Court of Appeals for the District of Columbia Circuit. One of the judges was Brett Kavanaugh.
Garza v. Hargan was the only major abortion-rights case Kavanaugh ever ruled on. His handling of it offers a clue about what’s in store for American women if he’s confirmed to the Supreme Court. No one knows whether Kavanaugh would vote to overturn Roe v. Wade outright or simply gut it. But even on a lower court, Kavanaugh put arbitrary obstacles in the way of someone desperate to end her pregnancy. Thanks to Trump, he may soon be in a position to do the same to millions of others.
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It’s fitting that last week’s Kavanaugh confirmation hearings were regularly interrupted by the sound of women screaming. Again and again, protesters, most of them female, cried out for the preservation of their rights, and were arrested. Republican men were contemptuous. “What’s the hysteria coming from?” asked Sen. Ben Sasse of Nebraska.
Let me answer. It is true, as Sasse said, that protesters have claimed for many years that if Roe v. Wade is overturned, women will die. It’s a fair prediction; women died before Roe, and where abortion is illegal, unsafe abortion leads to maternal death. In the past, however, Roe has been saved. Should Kavanaugh be confirmed, it will either fall or be eviscerated.
In Garza, Kavanaugh and another judge vacated the temporary restraining order that prevented the government from hindering Doe’s abortion. Brigitte Amiri, an ACLU lawyer who represented the girl, was stunned, because it seemed clear that Doe, who’d already obtained the necessary judicial signoff, had the law on her side. “It wasn’t what I was expecting from any judge that would have read Roe v. Wade,” Amiri said of the ruling. “Conservatives, progressives, anyone.”
Indeed, a few days later, the full court reversed the panel’s decision. Kavanaugh, dissenting, wrote that “the government has permissible interests in favoring fetal life.”
By the time Jane Doe got her abortion, she was 15 weeks pregnant and needed a more complicated second-trimester procedure. On Friday, Rochelle Garza, a lawyer who served as Doe’s temporary legal guardian during the proceedings, testified at Kavanaugh’s confirmation hearings.
“She was one of the most vulnerable people in our community,” Garza said of the girl, adding, “She was an immigrant, she didn’t speak English, she was in detention, and she was being put under extreme pressure. And I felt it was unfortunate that Judge Kavanaugh did not take that into consideration.”
We shouldn’t expect a Trump nominee, however personally decent his friends say he is, to care about women’s wishes. Kavanaugh’s defenders insist that he’s the sort of judge any Republican would appoint, and they are correct. Still, it’s a particularly bitter insult that women stand to lose reproductive autonomy thanks to the minority presidential victory of a louche misogynist.
Politicians sometimes say that they are personally opposed to abortion, but believe it should be legal. Trump and some of his enablers reverse that formulation.
The president, who does not, according to two of his lovers, wear condoms, has declined to say whether he’s ever been involved with an abortion. According to court papers unsealed on Friday, Elliott Broidy, former deputy finance chairman of the Republican National Committee, also refused to wear condoms during sex with his mistress, Shera Bechard, then demanded she get an abortion when she became pregnant. According to the unsealed papers, Broidy admired Trump’s “uncanny ability to sexually abuse woman and get away with it.”
A famous pro-abortion rights poster from the 1980s proclaimed, “Your body is a battleground.” Kavanaugh is likely to join the Supreme Court because in 2016, the woman whom most women voted for was defeated. Now our bodies are subject to occupation.