Brett Kavanaugh - potential SCOTUS justice [View all]

[Solly Mack]

Last edited Thu Jul 5, 2018, 10:51 PM - Edit history (1)

Garza v Hargan:Garza revolves around Jane Doe (as she is described in court filings), an undocumented minor who came to the United States in September without her parents. The government placed Doe in a federally funded shelter, where she learned that she was pregnant. She requested an abortion, but the shelter refused, following guidance issued by the Office of Refugee Resettlement—a wing of the Department of Health and Human Services that oversees shelters for undocumented, unaccompanied minors like Doe. In March, ORR announced that these shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director.

Lloyd, a Trump appointee and anti-abortion activist, refuses to provide such approval. Instead, he directs shelters to take pregnant minors to “crisis pregnancy centers” to be “counseled” out of their decision. At least once, he has also personally called a minor to urge her not to terminate her pregnancy. Doe’s shelter took her to a crisis pregnancy center, but it did not change her mind

A staff member at the shelter then called Doe’s mother and informed her that her daughter was pregnant. Still, Doe wanted the abortion. She went before a state judge and obtained judicial bypass, as required by Texas law when a minor wants an abortion without parental consent. But the federal government declined to honor the judge’s decision. It ordered the shelter to prevent Doe from getting the abortion that, under Texas law, she is legally entitled to obtain.

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Despite the fact that Doe has been granted a judicial bypass by the Texas courts, and despite a federal court having ordered that she be allowed to have the procedure, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit refused to order the Department of Health and Human Services to allow her to have the procedure. In four weeks she will be too far along in her pregnancy to terminate in Texas, yet the federal appeals court told HHS last week that they now have 11 days to find a sponsor to take charge of Jane Doe. That is a process that can take months. This week, her lawyers asked the full D.C. Circuit to revisit that decision.

Jane Doe, a pregnant teenager currently staying at a shelter for unaccompanied immigrant children in Texas, has been prevented from getting an abortion by the Office of Refugee Resettlement (ORR). She has already been subjected to egregious delays to her medical care as well as counseling and procedures without her consent:

1 - The Department of Health and Human Services required her go to a government “approved” counselor at a religiously affiliated, anti-abortion “Crisis Pregnancy Center,” which urged her to continue her pregnancy.

2 - Federal officials forced her to have a medically unnecessary sonogram against her will.

3 - ORR blocked her from travelling to her medical visits, even after judicial authorization and after her court-appointed attorney and guardian have offered to provide transportation to the abortion provider. She has also secured private funding for her abortion.
Federal officials told Jane’s mother about her abortion despite her clear wishes not to tell her parents and despite Jane getting a court order under Texas law to consent to her abortion without notification of or consent from her parents. Jane did not want to involve her parents because they were physically abusive to an older sister who became pregnant.

On October 25, Jane Doe obtained an abortion

In December, the ACLU became aware of two additional unaccompanied immigrant minors in ORR custody in two additional states (other than Texas) who sought but were refused access to abortion by ORR. On December 15, we returned to court seeking another temporary restraining order prohibiting the government from blocking these young women (known as Jane Roe and Jane Poe in court papers) from accessing abortion.

The government contended that because Jane Roe and Jane Poe are in the government’s care, the government is entitled to determine what it thinks is in their “best interest” and act accordingly; however, in the states in which these young women are detained, even a parent could not veto a minor’s decision to obtain an abortion.

Judge Henderson dissented, arguing that J.D. (Jane Doe) was not a “person” under the Due Process Clause, and thus did not have the same abortion rights citizens do.

In other words, immigrants at the border/ in detention don't have rights under the Constitution because they aren't recognized as "people" under said Constitution.

Judge Kavanaugh also dissented, joined by Judges Henderson and Griffith. He defended the panel’s decision allowing more time to find a sponsor who could remove J.D. from ORR’s custody, characterizing the en banc majority’s decision as creating “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
39. Id. at 752 (Kavanaugh, J., dissenting).

Instead, he would have held that sponsorship is not an undue burden, arguing that avoiding the need for the government to facilitate the abortion successfully balances the parties’ interests.

Kavanaugh earlier suggested the young girl could wait until she had a sponsor who would "facilitate" an abortion, though she already had been waiting and Texas law has a 20 weeks cut-off. The longer she had to wait the less likely she could get a legal abortion.

The government (Trump/Sessions) threw up all kinds of roadblocks and even knowing this, Kavanaugh still claimed there was no undue burden on the young girl to obtain a sponsor in order to get an abortion. Kavanaugh also argued that the government had a vested interest in forcing the young girl to carry her child to term.

Amy Coney Barrett would vote to overturn Roe V Wade

Raymond Kethledge