Kavanaugh on Detained Illegal Alien’s Demand for Abortion in U.S.: ‘I Made Clear It Had to Happen Very Quickly’

By CNSNews.com Staff | September 6, 2018 | 11:10 AM EDT

Sen. Dick Durbin questions Judge Brett Kavanaugh, Sept. 5, 2018. (Screen Capture)

(CNSNews.com) - Judge Brett Kavanaugh said during his confirmation hearing in the Senate Judiciary Committee on Wednesday that in his opinion in Garza v. Hargan—where the question was whether an illegal alien detained at the border had a right to an abortion in the United States—he “made clear it had to happen very quickly.”

“She is in an immigration facility in the United States,” Kavanaugh told Sen. Dick Durbin, who asked him about the case.

“She is from another country. She does not speak English. She is by herself,” Kavanaugh said.

“If she had been an adult, she would have a right to obtain the abortion immediately,” Kavanaugh said. “As a minor, the government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor. Who is an immigration sponsor, you ask? It is a family member or friend, who she would not be forced to talk to, but she could consult with, if she wanted, about the decision facing her.”

Kavanaugh conceded that there was no Supreme Court case that provided an exact precedent for this girl’s situation.

“So, we had to analyze this, first, as a minor, and then, for me, the first question always: What’s the precedent?” Kavanaugh said. “The precedent on point from the Supreme Court is there is no case on exact point, so you do what you do on all cases: You reason by analogy from the closest thing on point. What’s the closest body of law on point?”

In this same case, the state of Texas argued in an amicus that the illegal alien teenager caught crossing the border pregnant did not have a right to an abortion in the United States.

“The Constitution does not confer the right to an elective abortion on unlawfully- present aliens with virtually no ties to the country,” Texas said in its brief. “Under long-settled doctrine, the constitutional rights an alien may invoke depend on the scope of the alien’s ties to this country.”

Texas noted that if an illegal alien detained at the border had a right to an abortion in the United States, it would naturally follow that the same person had a right to keep and bear arms.

“For example, numerous courts have held that unlawfully-present aliens with minimal connections to the country do not have the Second Amendment ‘fundamental right’ to keep and bear arms,” Texas said in it brief.

Judge Karen Henderson, who serves with Kavanaugh on the U.S. Court of Appeals for the District of Columbia, agreed with Texas’s argument. However, the U.S. Justice Department, in arguing the case in the court, declined to take a position as to whether Planned Parenthood v. Casey should apply to the case as a precedent.

Planned Parenthood v. Casey is the 1992 Supreme Court opinion, co-authored by Justice Anthony Kennedy (for whom Kavanaugh clerked), that upheld Roe v. Wade’s claim that abortion was a constitutional right.

Judge Henderson rejected the claim that Planned Parenthood v. Casey applied to an illegal alien caught crossing the border.

“Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit—have a constitutional right to an elective abortion?” Henderson wrote in her opinion in the case.

“The government has inexplicably and wrongheadedly failed to take a position on that antecedent question,” Henderson said. “I say wrongheadedly because at least to me the answer is plainly—and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”

Kavanaugh, by contrast, accepted the conclusion that Planned Parenthood v. Casey did apply to the detained illegal alien’s case and the question then was whether making her wait a short time until the government could find her a “sponsor” in the United States would impose an “undue burden” to her right to abortion. Kavanaugh did not contest that she had a right to an abortion in the United States. He argued that she did not have a right to get the abortion “immediately,” only “expeditiously.”

“Today’s majority decision, by contrast, ‘substantially’ adopts the panel dissent and 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,” Kavanaugh wrote.

“The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence,” he said. “It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.”

“In sum, under the Government’s arguments in this case and the Supreme Court’s precedents, the unlawful immigrant minor is assumed to have a right under precedent to an abortion,” Kavanaugh concluded, “the Government may seek to expeditiously transfer the minor to a sponsor before the abortion occurs; and if no sponsor is expeditiously located, then it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, depending on what arguments the Government can make at that point.”

Here is the text of Sen. Durbin’s exchange with Judge Kavanaugh on Kavanaugh’s opinion in Garza v. Hargan:

Durbin: In your dissent in Garza v. Hargan, you wrote that the court had created, quote, a new right for unlawful immigrant minors in United States 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. You argued that permitting the government additional time to find a sponsor for a young woman in the case did not impose an undue burden, even though the government’s conduct in that case had already forced her to delay her decision on an abortion by several weeks.               

We are talking about a young woman, characterized as Jane Doe, who discovered that she was pregnant after crossing the border into the United States. She made a personal decision that she was not ready to be a parent and did not want to continue her pregnancy.

She went through every step necessary to comply with Texas state law as well as steps forced on her by the federal government. She visited a religious anti-abortion crisis pregnancy center. She underwent an ultrasound for no medical purpose. And she went before a judge and obtained a judicial bypass of the state’s parental consent requirements.

In other words, this young woman complied with every legal requirement—including Texas state requirements—placed in front of her so she could move forward with her decision, a decision effecting her body and her life. Do you believe that this was an abortion on demand?

Kavanaugh: Senator, the Garza case involved first and foremost a minor. It is important to emphasize it was a minor.

Durbin: Yes.

Kavanaugh: So, if she had been—and she is in an immigration facility in the United States. She is from another country. She does not speak English. She is by herself. If she had been an adult, she would have a right to obtain the abortion immediately. As a minor, the government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor. Who is an immigration sponsor, you ask? It is a family member or friend, who she would not be forced to talk to, but she could consult with, if she wanted, about the decision facing her. So, we had to analyze this, first, as a minor, and then, for me, the first question always: What’s the precedent? The precedent on point from the Supreme Court is there is no case on exact point, so you do what you do on all cases: You reason by analogy from the closest thing on point. What’s the closest body of law on point? The parental consent decisions of the Supreme Court, where they have repeatedly upheld parental consent laws over the objection of dissenters who thought that is going to delay the procedure too long, up to several weeks—

I am getting to the point. I am getting to the point.

Durbin: Before you get to the point, you’ve just bypassed something. You just bypassed the judicial bypass, which she received from the state of Texas when it came to parental consent. That’s already happened here and you’re still stopping her.

Kavanaugh: I’m not. The government is arguing that placing her with an immigration sponsor would allow her if she wished to consult with someone about the decision. That is not the purpose of the state bypass procedure. So, I just want to be very clear about that--

Durbin: But, judge, the clock is ticking.

Kavanaugh: It is.

Durbin: The clock is ticking. Twenty-week clock is ticking. She made the decision early in the pregnancy and all that I described to you, and the judicial decisions, the clock is ticking. And you are suggesting that she should have waited to have a sponsor appointed who she may or may not have consulted in making this decision.

Kavanaugh: Again, this is--I’m a judge. I’m not making the policy decision.  My job is to decide whether that policy is consistent with law. What do I do? I look at precedent. And the most analogous precedent is the parental consent precedent from Casey—has this phrase, at page 895, “minors benefit from consultation about abortion.” That’s a quote, talking about consultation with parents.

Durbin: So, you are adding a requirement here beyond the state of Texas requirements that there be some sponsor chosen who may or may not be consulted for this decision. And the clock is ticking on her pregnancy.

Kavanaugh: A couple of things there, senator. You said you are adding. I’m not adding. I’m a judge. The policy is being made by others. I am deciding whether the policy is then consistent with Supreme Court precedent. There are two things to look at in this context, senator. First, is the government’s goal reasonable in some way. And they say: We want the minor to have the opportunity to consult about the abortion. Well, the Supreme Court precedent specifically says, specifically says, that that is an appropriate objective. The second—

Durbin: Was that a state requirement? Was that a state requirement?

Kavanaugh: The second question is the delay. Your point. In the parental consent cases of the Supreme Court recognized that there could be some delay because of the parental consent procedures and, in fact, Justices Marshall, Brennan and Blackmun repeatedly dissented in cases because they thought the delay was too long. I quoted all that in my Garza opinion. And I made clear it had to happen very quickly and I looked at the time of the pregnancy to make sure on safety. I specifically talked about safety. I specifically say the government cannot use this as a ruse to somehow prevent the abortion. I spent a paragraph talking about she was in an undeniably difficult situation. So, as I was saying to Sen. Graham earlier, I tried to recognize the real world effects on her. I said: Consider the circumstances. She is a seventeen-year-old, by herself, in a foreign country, in a facility where she’s detained and she has no one to talk to and she’s pregnant. Now, that is a difficult situation. And I specifically recognized and tried to understand that and then as a judge, not the policymaker, I tried to understand whether the government’s policy was consistent with the Supreme Court’s precedents and I did the best I could. And I said on those parental consent precedents, I said: Some people disagree with those precedents and think those kind of statutes should not be allowed. But I had to--precedent is not like a cafeteria where I can take this but not that. I had to take Casey in completely. Casey reaffirmed Roe.

Durbin: I have some other questions, so I ask you, if you please

Kavanaugh: Well, it’s an important question though, and I want to make—

Durbin: It’s a critical question. And it’s—

Kavanaugh: And I did my level best in an emergency posture. So, what I had basically two days to do this case—

Durbin: A 2-1 en banc decision which you dissented from, correct?

Kavanaugh: I did the best to follow precedent. And as I always try to do, to be as careful as I can in following the precedent of the Supreme Court.

 


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