Judge Brett Kavanaugh, a top contender for the Supreme Court, sided with the Trump administration in a case where the government literally tried to hold a woman prisoner to prevent her from having an abortion. But somehow, Kavanaugh’s opinion in this case branded him as insufficiently hostile to Roe v. Wade.
Multiple outlets report that anti-abortion groups are “quietly lobbying senior White House officials against possible Supreme Court nominee Brett Kavanaugh.” Much of the opposition stems from Kavanaugh’s opinion in Garza v. Hargan, the imprisoned pregnant woman case.
When Garza reached Kavanaugh, his court was asked to decide the fate of a pregnant woman who was held in a facility for undocumented minors that enter the country without an adult guardian. The administration would not let the woman leave the facility to obtain an abortion. Nor would it release her to two family members who offered to take custody of her and become her “sponsor,” though it was unclear why these two potential sponsors were rejected.
A majority of Kavanaugh’s court held that the woman must be allowed to have her abortion. As the Supreme Court held in Planned Parenthood v. Casey, the government may not enforce a policy that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Holding a woman prisoner to prevent her from having an abortion qualifies.
Kavanaugh’s dissent did not try to argue that literally holding a woman in a locked facility to prevent her from reaching an abortion clinic does not place “a substantial obstacle in the path” of her receiving an abortion. Nor did he join a solo dissenting opinion by Judge Karen LeCraft Henderson, which claimed that undocumented immigrants rounded up at the border lack constitutional rights. Not even the Trump administration embraced Henderson’s position.
Instead, Kavanaugh argued that the government could temporarily delay the woman’s access to an abortion while it searches for another sponsor who could take custody of her. The Trump administration, Kavanaugh argued, “has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
Admittedly, that’s a less maximalist position than simply proclaiming that Casey was wrong and that Kavanaugh’s court shouldn’t follow it. But there’s a reason why the Supreme Court is called the “Supreme” Court. Its decisions are supreme over the rest of the federal judiciary, and a lower court decision that openly flouted Casey would be lawless.