- The Washington Times
Tuesday, July 10, 2018

Get ready to hear about a court case known as Garza v. Hargan.

The case, which involved an illegal immigrant teen held in government custody who was seeking an abortion, is already a major dividing line for Judge Brett Kavanaugh, President Trump’s pick to the Supreme Court.

Judge Kavanaugh authored key opinions in the case trying to find a middle ground on the thorny case — and is drawing fire from both pro-life and pro-choice activists for his attempt.

The case involved a girl identified only as Jane Doe, who came to the U.S. last year as part of the surge of Unaccompanied Alien Children (UAC). She was sent to one of the cushy dorms that have been in the news as of late, and after being given an entry medical exam was told she was pregnant.

She said she wanted an abortion but the Trump administration slow-walked the request, saying as long as the girl was in government custody it had an interest in protecting the fetus.

The girl had her own funding for the abortion procedure and obtained a judge’s consent in Texas, but the government said it would still have to transport her and provide any aftercare — which Justice Department lawyers argued would violate federal law prohibiting taxpayer spending to facilitate elective abortions.

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At the least, the government said, it should have a chance to place the girl with a family member or willing sponsor in the U.S., saying they would be best able to help her think through such a momentous decision.

A lower court ruled for the girl and the American Civil Liberties Union, which represented her in the case.

But Judge Kavanaugh led a three-judge panel of the U.S. Circuit Court for the District of Columbia in siding with the government, overturning the lower court.

Then the full D.C. Circuit stepped in and overturned the three-judge panel, ruling that illegal immigrants had a right to abortion and deciding the Trump administration’s efforts to delay in order to find a sponsor were trampling on that right.

Judge Kavanaugh penned a dissent saying the majority had broken with 40 years of Supreme Court precedent to establish “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

“The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence,” he wrote.

The Supreme Court in June erased the lower court’s opinion, ruling that since Jane Doe had rushed to get an abortion there was no longer a live controversy and so there shouldn’t be a precedent.

But the ruling has left activists on all sides furious.

Sen. Kamala Harris, California Democrat, said it was one of several troubling decisions on abortion rights from Judge Kavanaugh.

“He disregarded Supreme Court precedent and opposed the health care rights of a vulnerable young woman,” she said in a statement announcing her opposition Monday to Judge Kavanaugh’s nomination.

From the right, the American Family Association said they also had “concerns” with Judge Kavanaugh’s ruling, finding it wasn’t a strong enough statement against abortion rights.

They also fretted over a 2015 opinion he authored in another major case, Priests for Life v. HHS, where he ruled for the priests, but not broadly enough for some conservatives.

“Judge Kavanaugh is simply the wrong nominee — even a bad nominee,” the AFA said. “Based on his written opinions, Judge Kavanaugh has demonstrated a deficiency in a constitutional judicial philosophy of a limited judiciary. Some of his decisions may have been favorable, but several of his opinions about those decisions contain problematic language.”

But the Rev. Frank Pavone, national director of Priests for Life, said he was “delighted” at Judge Kavanaugh’s selection.

And the Susan B. Anthony List, a major pro-life advocacy group, said the judge reached the right conclusions in both Priests for Life and Garza, where they said he rejected the ACLU’s assertion of a constitutional right to abortion on demand for illegal immigrants

“Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights,” said SBA List President Marjorie Dannenfelser.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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