U.S. Supreme Court nominee Brett Kavanaugh ignored high court precedents in ruling against an immigrant pregnant teen seeking an abortion, her lawyer and a New York University legal scholar on Friday told the U.S. Senate committee weighing his nomination.
Kavanaugh’s dissenting opinion in Garza v. Hargan has become a major issue for supporters of the landmark abortion decision, Roe v. Wade. The judge disagreed with the en banc majority of the U.S. Court of Appeals for the D.C. Circuit, which ruled the teen’s abortion could go forward despite the Trump administration’s efforts to delay it. The en banc decision reversed an earlier panel ruling by Kavanaugh in which he approved a delay of 11 days in order for the government to continue what had been an unsuccessful search for a sponsor for the teen.
Kavanaugh spent two days testifying that he respects the Supreme Court precedent of Roe, and Democrats challenged him over his ruling in the Garza case. Democrats portrayed Kavanaugh as a jurist who’d be willing to “unsettle” Roe were he confirmed to the Supreme Court.
Four Democratic senators on Friday homed in on testimony by lawyer Rochelle Garza of Garza & Garza in Brownsville, Texas, and Melissa Murray of New York University Law School to support their beliefs that Kavanaugh had mischaracterized the issue in his dissent and misapplied Supreme Court precedents.
Garza was appointed guardian ad litem for the teenager, Jane Doe, held in U.S. custody in Texas. Garza told the committee, “There were so many barriers placed in front of Jane; the additional hurdle Judge Kavanaugh placed in front of her was unjustifiable.”
Kavanaugh, Garza said, justified the 11-day delay his initial order required because, he said, Jane needed a “support network” to make a “major life decision.” But Garza said, “Jane had already made her decision long before. She had already satisfied all of the requirements for any minor in Texas and a state court judge in Texas had issued an order that made clear that she could consent to the abortion on her own.”
When questioned a number of times about his opinion in the Garza case during his three days before the committee, Kavanaugh said he was applying the high court’s parental consent precedents on abortion to a minor who was alone in this country and he viewed a sponsor as a proxy for parental consent.
Murray countered Kavanaugh’s testimony, saying the Garza case was not a “parental consent case.” Jane Doe had “guardians upon guardians” appointed by the courts to advise her, Murray told the Senate panel.
Murray testified that Kavanaugh ignored the holding in the justices’ 1979 parental consent decision, Bellotti v. Baird, which said state parental consent statutes must include a judicial bypass for minors whose parents do not consent and who could show they were mature enough or it was in their best interests to have an abortion.
Kavanaugh, Murray said, also veered from the high court’s recent ruling in Whole Woman’s Health v. Hellerstedt, which requires a weighing of the benefits and burdens of abortion restrictions. “He did not even engage with Whole Woman’s Health,” Murray said.
None of the committee’s Republican members questioned Garza and Murray, among the nearly 30 witnesses who testified Friday. Those witnesses included Big Law appellate stars who praised Kavanaugh as open-minded and thoughtful.