Supreme Court nominee Brett Kavanaugh falsely claimed during his confirmation hearing Wednesday that Jane Doe, the 17-year old immigrant who tried to obtain an abortion, did not obtain the necessary approvals for the government to grant her request.
In the case before the D.C. Circuit, Garza v. Hargan, Kavanaugh wrote in a dissenting opinion that it did not constitute an undue burden when the Trump administration required the minor who was seeking an abortion to find a sponsor in the United States or leave the country to terminate her pregnancy. Under Roe v. Wade‘s successor, Planned Parenthood v. Casey, the government cannot impose an undue burden on a person seeking an abortion.
In his line of questioning on Wednesday, Sen. Dick Durbin (D-IL) pointed out that Doe went before a Texas court and obtained a judicial bypass, as required by law when she did not have parental consent. But Kavanaugh ignored that fact, and insisted during the hearing that she should have consulted with a sponsor.
“I did the best I could,” Kavanaugh said, explaining how he believes he followed the Supreme Court’s parental consent precedents. “I did my level best in an emergency posture… I did my best to follow precedent.”
Kavanaugh claimed in his dissenting opinion in the case that the majority was in favor of “abortion on demand,” a common term used by anti-abortion conservatives.
Had Doe been forced to continue her pregnancy while she consulted with a sponsor, she risked being prohibited from obtaining an abortion under Texas’ 20-week abortion ban. Doe was more than 15 weeks pregnant when she obtained her abortion.
During trial, a lawyer with the American Civil Liberties Union representing the minor told the court that two potential sponsors had already fallen through and that finding another would involve extensive background checks and potentially a home visit.
The Garza case could pose a hurdle to Kavanaugh’s nomination on both sides of the aisle. Democrats have pointed out how it shows his disregard for the longstanding laws on abortion, set out under Roe v. Wade and Casey. If Kavanaugh believes the government’s requirements on Doe were not an “undue burden,” it’s likely he’ll find that many other restrictions we could see passed across the country are not undue burdens either.
Meanwhile, Politico reported that the Doe case could hurt Kavanaugh on the right because it shows his “tendency toward caution and compromise that could signal an unwillingness to make waves on the Supreme Court.”